Efficio LLC - Terms and Conditions

1. Terms

Efficio LLC (“Efficio”) shall provide services only on these terms and conditions, which have been incorporated by reference into the engagement letter (“Engagement Letter”). These Terms and Conditions and the Engagement Letter are collectively referred to herein as the “Agreement,” and shall govern the relationship between Efficio and the client (“Client”) relating to the services referred to in an Engagement Letter ( “Services”). For clarity, the Agreement shall prevail over any inconsistent terms or conditions contained, or referred to, in any Client correspondence, request for proposal, prior proposal, purchase order, or other document of the Client. The Client’s signed acceptance of the Engagement Letter or the commencement of performance of the Services at the request of the Client, whichever occurs earlier, shall constitute the Client’s acceptance of the Agreement.

2. Provision of Services

2.1. Efficio shall use all reasonable skill and care in providing the Services. Efficio shall be entitled to rely, without independent verification or investigation, upon any information and materials that (i) may be made available or provided by or via the Client (including all inputs listed in the Agreement as the Client’s responsibility) or any of its affiliates, employees, agents or advisors (“ Client Data”) and / or (ii) may be obtained from third parties, including those in the public domain or any generally accepted source used by professional consulting firms.

2.2. As part of the Services, Efficio may agree to provide to the Client access to and use of all or part of Efficio’s online Procurement Engine portal and services available through it or via any other means of access provided by Efficio (the “Portal”). The Client acknowledges that such access to and use by it of the Portal is subject to the separate Portal terms. If there is any conflict between the provisions of this Agreement and the Portal terms, except where expressly stated otherwise, the Portal terms shall prevail in respect of the Portal.

2.3. Nothing in this Agreement shall prevent Efficio from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

2.4. Except with respect to the Client Data, or as otherwise provided in the Agreement, Efficio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

3. Client’s obligations and acknowledgements

 

3.1. The Client agrees to, at its own expense:

3.1.1. cooperate with Efficio in all matters relating to the Services and provide access in a timely manner where reasonably required for the performance of the Services to the Client’s premises, office accommodation, and Client Data. The Client shall ensure that all Client Data is accurate in all material respects and that Client Data or its use does not infringe any intellectual property rights of any third party. Efficio shall be entitled to rely on the accuracy, sufficiency, and completeness of any information, data, documents, reports, instructions, and services, provided by or on behalf of Client and the right of Client to disclose such without breach of confidentiality obligations.

3.1.2. cooperate with Efficio (or procure the relevant cooperation) in all matters relating to the identification and agreement of in-scope expenditure, addressable spend (in relation to which the Services are to be provided), baseline validation, savings measurement methodology and savings sign off (all being terms detailed in the Engagement Letter). The Client agrees not to unreasonably withhold, delay, or condition, any approval or sign off process as may be reasonably requested from time to time by Efficio;

3.1.3. inform Efficio of all Health and Safety rules and regulations and any other reasonable security requirements that apply at the Client’s premises;

3.1.4. liaise with Efficio and provide all assistance as Efficio may reasonably request to enable Efficio to continue ongoing development of the Services for the benefit of the Client;

3.1.5. comply with all applicable laws and regulations with respect to its obligations and activities under this Agreement;

3.1.6. carry out all other Client responsibilities set out in this Agreement in a legal, timely, and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Efficio may adjust any agreed timetable or delivery schedule as reasonably necessary;

3.1.7. obtain and shall maintain all necessary licences, consents, and permits necessary for Efficio, its contractors, or agents to perform their obligations under this Agreement.

3.2. The Client acknowledges that Efficio may, in providing the Services, use publicly available information and information contained in reports and other materials provided by third parties, including, without limitation, information provided by or on behalf of the Client and that Efficio does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information. The Client agrees to furnish or cause to be furnished to Efficio all necessary and appropriate information for use in providing the Services under the Agreement and hereby warrants that any information relating to the Client that is provided to Efficio by or on behalf of the Client will be true and accurate in all material respects and not misleading. The Client agrees that any information or advice (including, without limitation, the Deliverables) rendered by Efficio under the Agreement is for the confidential use of the Client only and the Client will not, and will not permit any third party to, use any Deliverable for any other purpose or disclose or otherwise refer to such Deliverable, advice or information, without the prior written consent of Efficio such consent not to be unreasonably withheld.

3.3. The Client acknowledges that it is not relying on the advice of Efficio for tax, legal, or accounting matters and that it will seek and will rely on the advice of its own professionals and advisors for all such matters.

3.4. Efficio may be commissioned to provide Services to the Client’s associated entities and business units (“Group Entities”). Where Efficio provides Services to a Group Entity, the Client shall procure compliance by that Group Entity with all obligations under the Agreement as if the Group Entity was the principal client and original signatory to the Engagement Letter.

4. Content and use of Deliverables

Subject always to payment of Efficio’s fees and expenses in connection with the provision of the Services and subject to the provisions of paragraphs 5 and 6 below, all materials, reports and other information that Efficio creates for the Client’s exclusive use as part of the Services (the “Deliverables”) shall be the property of the Client and shall be treated by Efficio as being confidential information belonging to the Client. Efficio warrants that the Client’s use of any Deliverables, used solely for their intended purpose, shall not violate or infringe any third party intellectual property rights, provided always that no warranty is made with respect to any violation or infringement of any third party’s intellectual property rights arising in connection with information or material that has been provided or made available by the Client or its affiliates, employees, agents or advisors.

 

5. Efficio’s Property and Confidentiality

 

5.1. All materials, methodologies, concepts, ideas, know-how, procedures, management tools, software, and other intellectual property, that Efficio has created prior to this Agreement with the Client or may thereafter create or acquire (the “Efficio IP”) shall, at all times, be and remain the exclusive property of Efficio. Before using any intellectual property created or acquired while performing services for any third party other than the Client, Efficio shall first remove any information or materials that were furnished to Efficio by the Client and which may constitute the Client’s intellectual property. The Client acknowledges that Efficio may retain and reuse certain data contained in or derived from the Deliverables subject always to Efficio’s obligation to anonymise all such data prior to reuse (“Anonymised Data ”). Efficio may use Anonymised Data in the future development of its sourcing templates, strategies and systems, all of which shall, at all times, be and remain the exclusive property of Efficio. Except as provided in paragraph 6 below, the Client shall not have or acquire any title or interest in or to any Efficio IP.

5.2. The Client shall keep in strict confidence all Efficio IP and any other confidential information and materials of Efficio which have been disclosed to the Client by Efficio, its affiliates, employees, agents or advisors, or any other confidential information relating to Efficio’s business which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its affiliates, employees, agents, or advisors, on a reasonable “need to know” basis and the Client shall ensure that such affiliates, employees, agents, or advisors, are subject to obligations of confidentiality corresponding to those which bind the Client pursuant to the terms of this Agreement.

6. Licence in relation to Efficio IP and use of the Services and Deliverables

6.1. Subject always to payment of Efficio’s fees and expenses in connection with the provision of the Services, the Client shall have an irrevocable, perpetual, non-exclusive, royalty-free right and licence to use Efficio IP that is contained or incorporated in the Deliverables. Except with the prior written authority of Efficio, the Client may not use, reproduce, or display, any Efficio IP or prepare any works derived from the Efficio IP for the benefit of any person or entity other than the Client. The Services are personal to the Client and intended to be used solely and exclusively for the Client’s business use.

6.2. The Deliverables and Services and any recommendations made by Efficio to the Client shall not be used or relied upon by any third party. Save with the prior written authorization of Efficio, the Client may not publish, disclose, or refer to, any Deliverables or any recommendations that Efficio may make.

7. Client’s Confidential Information

7.1. In connection with the provision of the Services, Efficio may be provided or granted access to information and materials of the Client that may be considered to be confidential or proprietary (the “Client’s Confidential Information”). Efficio shall not disclose or make available any of the Client’s Confidential Information to any other person or make use of any of the Client’s Confidential Information for any purpose save where:

7.1.1. the Client has provided prior written authorization; or

7.1.2. Efficio discloses and makes available the Client’s Confidential Information on a confidential and restricted basis to its employees and subcontractors on a reasonable “need to know” basis in connection with the Services; and

7.1.3. Efficio may use the Client’s Confidential Information for any proper purpose related to the Services.

7.2. The Client Data shall, at all times, be and remain the exclusive property of the Client. Except as provided in this Agreement, Efficio shall not have or acquire any title or interest in or to any Client Data.

8. Exceptions

The provisions of paragraphs 5.2 and 7 above shall not apply to any information or materials that:

8.1. are already lawfully known to or in the possession of the receiving party at the time such information or materials are first disclosed or made available to the receiving party by the disclosing party;

8.2. are thereafter lawfully obtained by the receiving party from a person other than the disclosing party;

8.3. are in the public domain or generally known in the relevant trade, industry, or business, at the time such information or materials are first disclosed or made available to the receiving party or thereafter come into the public domain or become generally known in the relevant trade, industry, or business, other than by reason of an improper disclosure or use of the same by the receiving party; or

8.4. are lawfully obtained by the receiving party independent of the Services. In addition, the receiving party may disclose and make available the other party’s confidential information to the extent required by any order of any court of competent jurisdiction or of any competent judicial, governmental or regulatory body provided that the receiving party shall use all reasonable endeavours to give the disclosing party prior notice of the full circumstances of the disclosure and the information that will be disclosed and consulting with the disclosing party as to possible steps to avoid or limit the disclosure required.

9. Charges and Payment

9.1. The charges payable for the Services shall be set out in the Engagement Letter.

9.2. Details of charges payable by the Client should the Client elect to terminate by giving notice are also set out in the Engagement Letter.

9.3. All charges quoted to the Client shall be exclusive of taxes applicable to the delivery of the Services or the Deliverables (except for taxes imposed on Efficio’s income), which Efficio shall add to its invoices at the appropriate rate. If a taxing authority determines that an additional tax, assessment or duty should have been imposed on the Services or Deliverables provided hereunder, Client shall be responsible for such, including any interest and penalties thereon. If Efficio has paid any amounts to a taxing authority, then Client shall reimburse the same in full to Efficio. Conversely, if a taxing authority refunds to Efficio a tax, duty, or assessment on sales under this Agreement that has been paid directly by Client, then Efficio shall reimburse Client the refund paid, including any interest paid to Efficio by the taxing authority.

9.4. Efficio shall invoice the Client in accordance with the payment provisions of the Engagement Letter. The Client shall pay each invoice submitted to it by Efficio, in full and in cleared funds, within 30 days of receipt.

9.4.1. Efficio reserves the right to perform the Services by installments and to render a separate invoice in respect of each such installment;

9.4.2. if Efficio exercises its right to perform the Services in accordance with sub-paragraph 9.4.1, then any delay in the provision of such Services, or a failure to perform any further installment or installments, shall not entitle the Client to terminate the Agreement or reject the performance of any installment or to withhold payment in respect of any installment previously delivered.

9.5. Where Efficio has commenced performance of the Services at the request of the Client (without the Client having signed Engagement Letter) then Efficio reserves the right to invoice for all services performed during the term of the Agreement (plus all reasonably incurred expenses) using the fee calculation methodology contained in the unsigned Engagement Letter or by reference to the market value of the benefit received (and which Efficio reasonably believes will be received) by the Client as a result of Efficio’s performance of the Services.

9.6. This paragraph 9.6 applies in circumstances where Efficio has a bonus fee as part payment for the provision of the Services and where the bonus fee structure has been calculated by reference to agreed “addressable spend” and/or “inscope” categories of Client expenditure. Where the Client elects to remove any part of the agreed “addressable spend” or all or part of any category of expenditure from the scope of the Services at any time after Gate 1 (as defined in the Engagement Letter) then Efficio may make such adjustment to the bonus fee structure as is equitable in light of the Client’s reduction of the level of required Services.

9.7. Unless otherwise agreed in writing by Efficio, all Services shall be deemed completed upon sign off of the last category of expenditure (as described in the Engagement Letter).

9.8. Without prejudice to any other right or remedy that Efficio may have, if the Client fails to pay Efficio on the due date, Efficio may:

9.8.1. charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of HSBC Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment or, if lower, the maximum interest rate permitted by applicable law; and

9.8.2. suspend all services until payment has been made in full.

9.9. All sums payable to Efficio under this Agreement shall become due immediately upon termination of the Agreement, despite any other provisions. This paragraph 9.9 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

10. Dispute Resolution

10.1. Where any dispute arises between the parties in relation to the Agreement (including but not limited to disputes regarding the Services or fees), the matter shall be submitted and finally resolved by binding arbitration administered by the American Arbitration Association. The parties agree and acknowledge that the arbitration shall be governed by and construed in accordance with the laws of the State of New York exclusively and without reference to principles of conflict of laws. The arbitration hearing shall take place in the County of New York, New York, at a place and time agreed upon by the parties. The Federal Arbitration Act ("FAA") will supersede state laws to the extent inconsistent. The dispute will be heard by one arbitrator who both parties agree is qualified to hear the parties’ dispute and is an attorney admitted to and is in good standing to practice law in the State of New York. If such parties are unable to agree on an arbitrator within ten (10) days after the request for arbitration, either party may notify the American Arbitration Association and request the appointment of an arbitrator to handle the dispute and any such arbitrator so appointed shall be the arbitrator.

10.1.1. Each party to the arbitration shall bear its own costs of arbitration and shall pay an equal pro-rated share of the arbitrator’s fees and expenses The arbitrator’s final decision or award shall be final and binding upon the parties, and judgment upon that decision or award may be entered in any court having jurisdiction over any of the parties or their respective assets. The parties specifically waive any right to a jury trial and also waive the right to appeal to any court for relief from the preceding sentence or from any decision of the arbitrator, or any question of law arising from or related to the dispute, before or after the final decision or award. The arbitrator has the power to award recovery of all costs and fees (including attorneys’ fees, administrative fees and the arbitrator’s fees and expenses) to the prevailing party in the arbitration.

10.1.2. All matters concerning the process and result of the determination by the arbitrator shall be kept confidential among the parties and the arbitrator, and all disputes hereunder regarding or related to the same topic or event that are subject to arbitration during the same time period shall be consolidated in a single arbitration proceeding.

11. Limitation of Liability

11.1. This paragraph 11 sets out the entire financial liability of Efficio (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client arising out of or in connection with this Agreement including without limitation in respect of:

11.1.1. any breach of this Agreement;

11.1.2. any use made by the Client of the Services, the Efficio IP, the Deliverables, or any part of the listed items; and

11.1.3. any representation, statement, or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2. EFFICIO MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY MATERIALS, DELIVERABLES OR SERVICES PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, ALL EXPRESS OR IMPLIED, DIRECT OR INDIRECT, REPRESENTATIONS, WARRANTIES AND CONDITIONS IN RESPECT OF THE SERVICES OR DELIVERABLES OR THE USE THEREOF ARISING OR IMPLIED BY STATUTE, COMMON LAW, CUSTOM, USAGE OF TRADE, COURSE OF PERFORMANCE, COURSE OF DEALING OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. Efficio does not guarantee that any recommendations may be implemented at the cost or with the results that Efficio may estimate or project or that any work, product or Deliverable will be error free.

11.3. Nothing in this paragraph 11 limits or excludes the liability of Efficio:

11.3.1. for death or personal injury resulting from negligence;

11.3.2. for fraud or fraudulent misrepresentation by Efficio.

11.4. EFFICIO SHALL NOT BE LIABLE, WHETHER IN TORT (INCLUDING FRAUD, NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION OR OTHERWISE FOR:

11.4.1. LOSS OF PROFIT; OR

11.4.2. LOSS OF BUSINESS; OR

11.4.3. DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; OR

11.4.4. LOSS OF ANTICIPATED SAVINGS; OR

11.4.5. LOSS OF USE OR INTERRUPTION OF BUSINESS; OR

11.4.6. LOSS OR CORRUPTION OF DATA OR INFORMATION;

11.4.7. ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES.

11.5. EFFICIO’S AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID (EXCLUDING PAYMENTS FOR TAXES AND EXPENSES BY THE CLIENT TO EFFICIO FOR THE SERVICES) DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

12. Independent Contractor

12.1. Efficio will be acting solely as an independent contractor in performing the Services and neither Efficio nor any of its employees, associated consultants or subcontractors shall be deemed to be employees of the Client for any purpose.

12.2. The Agreement constitutes a contract for services with the Client and the Client acknowledges that Efficio (and all of its employees, associated consultants or subcontractors) provides procurement consultancy services and at no time provides staff augmentation or provision of manpower.

12.3. Nothing in the Agreement is intended to, or shall operate to, create a joint venture, partnership, or agency, between the parties or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13. Suspension/Termination

13.1. Subject to paragraph 13.3, this Agreement shall terminate automatically on completion of the project or assignment as set out in the Engagement Letter.

13.2. Without prejudice to any other rights or remedies which the parties may have, either party may, at any time and for any reason, suspend the performance of the Services and/or terminate Efficio’s engagement to perform the Services, in whole or in part, by giving not less than 30 days written notice to the other party or immediately on giving notice to the other if:

13.2.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

13.2.2. the other party commits a material breach of the Agreement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

13.2.3. the other party becomes or is deemed to be insolvent within the meaning of applicable bankruptcy or insolvency laws or makes an assignment for the general benefit of creditors or makes an assignment in bankruptcy or files a proposal under applicable bankruptcy or insolvency laws, or if a petition in bankruptcy is filed against such other party and the petition is not dismissed, stayed, or withdrawn, within one (1) month after the filing of the petition, or if a receiving order in bankruptcy is made against such other party, or if any proceedings shall be commenced or steps taken by or against such other party for any relief under any applicable bankruptcy or insolvency laws; or

13.2.4. a receiver is appointed of any of the other party’s assets or undertaking; or

13.2.5. the other party ceases, or threatens to cease, to trade or conduct business; or

13.2.6. (in relation only to Efficio’s rights of suspension and/or termination), the Client has failed to provide to Efficio a purchase order in accordance with the Engagement Letter or within 15 days of request in writing by Efficio.

13.3. Upon termination of this Agreement for any reason:

13.3.1. the Client shall immediately pay to Efficio (i) all of Efficio’s outstanding unpaid invoices, (ii) the bonus fee payable upon early termination as set out in the Engagement Letter (including, if applicable, any interest calculated pursuant to paragraph 9.8.1 above). Further, in respect of Services supplied but for which no invoice has been submitted, Efficio may submit an invoice, which shall be payable immediately on receipt;

13.3.2. each party shall return and make no further use of any equipment, property, documentation, and other items (and all copies of them) belonging to the other party;

13.3.3. Efficio may destroy or otherwise dispose of any of the Client Data in its possession unless Efficio receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Efficio shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Efficio in returning or disposing of Client Data; and

13.3.4. the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

14. Publicity

Save with the prior written consent of Efficio, the Client shall not publicly disclose (in any press release, prospectus, offer document or otherwise) that Efficio is performing the Services, the nature of the Services or any Deliverables.

15. Employees of Efficio

15.1. During the provision of Services by Efficio and for a period of one (1) year after the termination of the Agreement for any reason, the Client shall not directly or indirectly:

15.1.1. enter into an agreement or arrangement for the provision of services (including as an officer, employee, partner, consultant, subcontractor, agent or otherwise) with any current or former employee of Efficio or any consultant or sub-contractor engaged by Efficio (“ Efficio Personnel”) who, at the time of entering into such agreement or arrangement with the Client, is providing or has at any time in the past year provided any Services to the Client under the Agreement; or

15.1.2. recruit, solicit, engage or hire (or attempt to recruit, solicit, engage or hire) any person who is employed by Efficio and who participated in the Services, except that it shall not be a breach of this paragraph 15.1.2 for Client to publish job openings or to respond to individual requests about job openings.

15.2. Should the Client breach any provision of paragraph 15.1 above, the Client agrees to pay to Efficio on demand an introduction fee equivalent to 25% of the annualized payments made to the relevant Efficio Personnel prior to the breach calculated at 35 hours per week over 52 weeks.

16. Force Majeure

Efficio shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

17. Compliance with Laws and Policies

 

17.1. In performing its obligations under the Agreement, both parties shall comply with:

17.1.1. all applicable laws, statutes, regulations, rules and orders of any governmental body having jurisdiction over the performance of the Services; and

17.1.2. Efficio’s policies (as amended from time to time) or have and maintain throughout the term of this Agreement its own policies and procedures to ensure its compliance with applicable laws and regulations relating to: (i) anti-modern slavery and anti-human trafficking; (ii) corporate and social responsibility; (iii) anti-bribery and anti-corruption; (iv) ethics; and (v) data and privacy.

17.2. Without prejudice to the generality of paragraph 17.1, neither party will engage in any activity, practice or conduct which would constitute an offense:

17.2.1. under sections 1, 2 or 6 of the United Kingdom Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK, or the United States Foreign Corrupt Practices Act of 1977; or

17.2.2. under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

17.3. Either party may terminate this Agreement with immediate effect by giving written notice to the other if that other commits a breach of paragraph 17.1.

18. Data Protection

18.1. For the purposes of this paragraph, “Data Protection Legislation” is: (a) the UK Data Protection Act 1998 (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then (ii) any successor legislation to the GDPR or the UK Data Protection Act 1998 (DPA); and (b) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (Privacy Regulations) as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208); the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 (SI 2015/355); and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2016 (SI 2016/524). “Data Controller”, “Data Processor”, “Personal Data” and “Data Subject” have the meanings in the Data Protection Legislation. For purposes of this paragraph, “Consumer Privacy Laws” means the California Consumer Privacy Act (California Civil Code Sections 1789.100 to 1798.198) and any other U.S. state and federal privacy law, including the 49 state laws on data breach notification, as amended or updated from time to time “Consumer” and “Personal Information” have the meanings in the California Consumer Privacy Act.

18.2. The parties acknowledge and agree that, the primary purpose of the Services is not the processing of Personal Data or Personal Information and the primary content of the Client Data is not Personal Data or Personal Information. To the extent the Client Data contains Personal Data or Personal Information, the Client will be considered the Data Controller of the same with rights to determine the purposes for which the Personal Data and Personal Information is analyzed, reviewed, disclosed or processed. Nothing in the Agreement will restrict or limit in any way the Client’s rights or obligations as owner and/or Data Controller of the Personal Data or Personal Information for such purposes. The parties further acknowledge and agree that, for the purposes of the Data Protection Laws, Efficio will be considered the Data Processor of the Personal Data. As Data Controller of the Personal Data and Personal Information the Client is directing Efficio to analyze, review, disclose or process, as applicable, Client Data in accordance with this Agreement.

18.3. Both parties will comply with all applicable requirements of the Data Protection Legislation and Consumer Privacy Laws. This paragraph 18.3 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation or the Consumer Privacy Laws.

18.4. Without prejudice to the generality of paragraph 18.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data and Personal Information to Efficio for the duration and purposes of this Agreement.

18.5. Without prejudice to the generality of paragraph 18.3, Efficio shall, in relation to any Personal Data processed in connection with the performance by Efficio of its obligations under this agreement: 

18.5.1. process that Personal Data and Personal Information only on the written instructions of the Client unless Efficio is required by the laws of any member of the European Union or by the laws of the European Union or by the laws of the United States or any of the individual States applicable to the Client to process Personal Data or Personal Information, as applicable;

 

18.5.2. ensure that it has in place appropriate technical and organizational measures, to protect against unauthorized or unlawful processing of Personal Data or Personal Information and against accidental loss or destruction of, or damage to, Personal Data or Personal Information, appropriate to the harm that might result from the unauthorized 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;

18.5.3. ensure that all personnel who have access to and/or process Personal Data or Personal Information are obliged to keep it confidential;

18.5.4. not transfer any Personal Data outside of the European Economic Area unless Efficio has provided appropriate safeguards in relation to the transfer and the data subject has enforceable rights and effective legal remedies;

18.5.5. assist the Client, at the Client’s cost, in responding to any request from a Data Subject or Consumer and in ensuring compliance with its obligations under the Data Protection Legislation and the Consumer Privacy Laws, as applicable, with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

 

18.5.6. notify the Client without undue delay on becoming aware of a Personal Data or Personal Information breach;

18.5.7. at the written direction of the Client, delete or return Personal Data and Personal Information and copies thereof to the Client on termination of the Agreement unless required by applicable law to store the Personal Data or Personal Information; and

18.5.8. maintain complete and accurate records and information to demonstrate its compliance with this paragraph 18 and allow for audits by the Client or the Client’s designated auditor.

18.6. The Client consents to Efficio appointing third party processors of Personal Data and Personal Information under this Agreement for the purposes of assisting with the provision of the Services. Efficio will inform the Client of the identify of such third parties from time to time and Efficio confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this Agreement. As between the Client and Efficio, Efficio shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this paragraph 18.6.

18.7. Either party may, at any time on not less than 30 days’ notice, revise this Agreement for purposes of compliance with the Data Protection Legislation by replacing this paragraph 18 with any applicable Controller to Processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

 

19. Waiver

19.1. The failure of either party to insist upon the performance of any provision of this Agreement or to exercise any right, remedy or option available to it under this Agreement or at law or in equity shall not be construed as a waiver unless in writing and executed by the party making the waiver and shall not be deemed to constitute a waiver of any other or any continuing or subsequent default under this Agreement or any other right or remedy.

19.2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

20. Severance

20.1. If any provision (or part of a provision) or this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.

20.2. If any invalid, enforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

20.3. The parties agree, in the circumstances referred to in paragraph 20.1 and if paragraph 20.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

21. Entire Agreement; Pre-Contract Statements

This Agreement constitutes the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes and replaces all prior or contemporaneous proposals, understandings, warranties, or representations, whether oral or written. This Agreement shall not be modified or amended except by an instrument in writing referencing this Agreement and signed by authorized representatives of both parties to this Agreement.

22. Assignment

22.1. This Agreement shall be binding upon and inure to the benefit of Efficio and Client and Efficio’s and Client’s respective successors and permitted assigns.

22.2. The Client may not assign or transfer this Agreement or any of its rights or obligations hereunder, whether directly or indirectly, to any other person without first obtaining Efficio’s written consent.

22.3. Efficio may assign or transfer this Agreement or any of its rights or obligations hereunder to any other person upon providing written notice to the Client.

23. Rights of Third Parties

This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and does not create, and shall not be construed as creating, any rights or interests enforceable by any person or entity that is not a party to this Agreement.

24. Statutes of Limitation and Repose.

 

Client agrees that all claims and causes of action against Efficio that arise from its performance of the Services shall accrue, and any applicable statutes of limitation and repose shall begin to run, not later than the date that Efficio’s Services are substantially completed or terminated.

25. Construction

Captions and headings are provided for convenience of reference only and shall not be used to interpret any provision of this Agreement.