The general terms and conditions are last revised on the 9th of February 2023.
General terms and conditions
These are the general terms and conditions of Fox Technology B.V. , trading under the name of Billy Grace, having its principal office located at Professor tulpstraat 18 (1018HA) in Amsterdam, the Netherlands and registered with the Chamber of Commerce under registration no. 85199761 (hereinafter referred to as “Billy Grace”). Billy Grace offers a cloud-based software solution that enables its customers to automate marketing budgets and bids in online advertising space. Next to this, Billy Grace gives customers insights and intelligence that can be utilized to make their store more profitable.
In these general terms and conditions, all capitalised terms have the meanings set out in this article, both in their singular forms and in their plural forms.
- Account: the username, password and any other means of authorisation required by an End User to log in to – and use – certain parts of the Services.
- Agreement: the entire agreement between Billy Grace and the Customer, which in any case includes, without limitation, Billy Grace’s offer, these general terms and conditions, and any data processing agreement entered into between the parties.
- Confidential Information: any information that has been marked as being confidential, or that the receiving party should reasonably be able to understand is of a confidential nature.
- Customer: any legal entity or natural person acting in the course of a profession or business that or who enters into an Agreement with Billy Grace.
- Customer Data: any data stored by the Customer or individual End Users with the Services, or otherwise made available to Billy Grace by the Customer or End Users in the context of the Agreement.
- End Users: any natural person using the Services or the Softwarewhether or not through his or her Account.
- Intellectual Property Rights: all intellectual property rights and related rights, including but not limited to copyright, database rights, rights to domain names, trade name rights, trademark rights, design rights, neighboring rights, patent rights as well as rights to know-how.
- Materials: all websites, web applications, software, data, documentation, concepts, texts, images, opinions, reports and other products of the mind in the broadest sense of the word.
- Services: all work that Billy Grace will perform for the Customer under the Agreement, as described in Billy Grace’s offer. These activities may include – among other things – (i) making the Software available via the internet, (ii) configuring the Software, and (iii) maintaining the Software.
- Software: Billy Grace’s cloud-based software solution made available to Customer under the Agreement that enables the Customer to automate and analyses their store, as further described on the Website.
- Website: Billy Grace’s website, accessible via http://www.billygrace.com, or related sub-domains.
2. Applicability and formation of the Agreement
- The Agreement is concluded by completing the online ordering process and confirming the order on the Website and/or third party app store or website.
- These general terms and conditions apply to all Agreements entered into between the parties, even if – in the event of a future offer – these general terms and conditions are not made available to the Customer again.
3. Performance of the Agreement
- Billy Grace will do its best to ensure that the information and Materials provided to Customer are correct but cannot provide any guarantees in this regard. Billy Grace accepts no responsibility for damage in any way caused by the use, incompleteness or inaccuracy of the information and Materials provided in the Software. It is the responsibility of the Customer to ensure that the output and results of the Software meet the Customer’s expectations and requirements.
- Billy Grace is not obliged to implement or configure the Services on behalf of the Customer, unless explicitly agreed upon otherwise. If the Customer requests support from Billy Grace in this regard, Billy Grace preserves the right to invoice the associated costs separately based on the customary rates of Billy Grace. When using the Services, the Customer is obliged to comply with any reasonable advice and instructions provided by Billy Grace.
- Billy Grace is entitled to engage third parties in the performance of the Agreement. Any costs associated with this will only be at the Customer’s expense if this has been agreed in advance.
- The Software can offer insight into your e-commerce store and purchase advertising space itself. The Customer (and not Billy Grace) is solely responsible for the correctness of the information (such as bid parameters and limits) that it enters while using the Software.
- In order to make use of the Services, the Customer and/or End User must create an Account via the Website. The Customer itself is responsible for ensuring that login details are treated confidentially. Accounts are personal and may not be used by multiple people.
- Billy Grace may set a limit on the number of End Users that may use the Service.
- All actions that are carried out via an Account will be at the Customer’s expense and risk. Billy Grace is entitled to assume that these actions have been carried out by the Customer itself or with the Customer’s consent.
- If the Customer suspects or concludes that an Account is being misused, it must immediately take any and all measures that may be necessary to prevent (further) misuse, for instance by changing the password. If it is not possible for the Customer to take appropriate measures itself, the Customer must immediately inform Billy Grace, in order to enable Billy Grace to take the necessary measures.
5. Rules of use
- The Customer shall furnish Billy Grace in a timely manner with all information and cooperation which is reasonably requested by Billy Grace to execute its obligations.
- The Customer is fully responsible for all use Customer and End Users make of the Software and the Services. The Customer shall at all times ensure that all such use complies with applicable laws, does not violate any third-party rights (expressly including any Intellectual Property Rights) and is does not constitute a tort against any third-party. Furthermore, it is explicitly forbidden to use the Software:
- to distribute malware or any other harmful software;
- to store or disseminate materials that infringe any intellectual property rights or other third party rights;
- to store or disseminate materials that are threatening, libelous, fraudulent, defamatory, obscene, pornographic, terroristic or offensive or in any other way illegal;
- in any manner that may cause hindrance for other users of the Software, or that may damage the systems and networks or reputation of Billy Grace its licensors or other third parties.
- The Customer warrants that any End Users that make use of the Software are bound to the rules of use for the Software.
- Billy Grace reserves the right to block any use of Services and/or the Software, if Billy Grace finds that the Customer has violated these terms and conditions.
- Billy Grace is entitled to hand over the name, address and other identifying details of the Customer and/or End Users to a third party who complains that the Customer and/or the End User is infringing its rights, provided that the applicable legal and/or judicial requirements for this have been met.
- The Software may contain hyperlinks to third party websites. Billy Grace is not responsible for the contents of such websites. Use of any information or materials from third party websites shall be at your own risk.
- Billy Grace is not responsible for any third party services that can be used via the Software. Use of these services shall be at Customer’s own responsibility and risk.
- Billy Grace is not liable for Customer Data stored or distributed using the Software or for the use made of the Software by Customer and/or its End Users. Customer indemnifies Billy Grace from claims of third parties, including Customer’s End Users, based on the assertion that the use of the Software by Customer and/or its End Users or Customer Data stored using the Software infringes its rights, constitutes a violation of the rules of use or is otherwise unlawful.
- The Customer may only use the Software and the Services for its own internal business purposes and may not make the Services and/or the Software available to any third-party by sale, rent, sublicensing, timesharing or on any other basis nor use the Services and/or the Software for the benefit of any third-party on any basis including by reselling them or by combining them with the services provided by Customer to third-parties.
- Billy Grace reserves the right to block any use of the Software and/or Services provided by Billy Grace which it reasonably deems to violate these terms, any applicable law or any third-party right.
- Unless the Parties expressly agree otherwise in a service level agreement, the availability and the maintenance of the Software will always be on the basis of reasonable efforts and with due observance of the provisions of this article.
- Billy Grace will endeavor to keep the Software available as much as possible but cannot guarantee uninterrupted and error free availability. Billy Grace will be entitled to take the Software temporarily out of operation for the purpose of maintenance activities.
- If any obstruction, loss or other threat arises or may arise for the operation of Billy Grace’s computer systems or network or third-party computer systems or networks, for instance due to excessive sending, uploading or downloading of data, network attacks, poorly protected systems, or activities of viruses or other harmful software, Billy Grace will be entitled to take all measures that it deems reasonably necessary to avert or prevent this threat. Billy Grace will inform the Customer of this as soon as reasonably possible.
- Billy Grace will use its reasonable efforts to address and resolve defects in a reasonable amount of time. In case a defect effectively blocks the Customer from accessing the Software and/or Services or using material parts of the functionality of the Software and/or Services, Billy Grace will use all reasonable efforts to provide at least a work around to allow Customer to resume use of the (affected part of) the Software and/or Services as soon as practical, which work around may require the Customer to temporarily accept to apply alternative working procedures or a reduction of minor functionality.
- Billy Grace actively maintains the Software. Maintenance causing material impact to the availability of the Software will be announced in advance and will, where reasonably possible, be carried out when use of the Software is averagely low. Emergency maintenance however can be carried out at any moment and without prior notice.
- Billy Grace may from time to time add or change functionalities of the Software and Billy Grace shall (where reasonably possible) notify the Customer of material changes to the Software within 30 days after the changes are made. Minor changes that, in the opinion of Billy Grace, do not affect the functionality of the Software in a meaningful way, will be made without prior notice.
- Billy Grace will not charge Customer additional fees for additional features it may make available to Customer by means of such changes, unless these concern new future features or functions for which Billy Grace also generally charges other users separately.
- The Customer is requested to consult the online documentation regarding the Software via the Website before submitting a support request by e-mail.
- If the online documentation does not facilitate a solution, the Customer may contact the Billy Grace helpdesk by e-mail. Availability and up-to-date contact details are available on the Website. Billy Grace endeavors to respond to helpdesk requests as soon as reasonably possible.
9. User limits
- Billy Grace may impose a limit on the capacity the Customer may or can use within the framework of the Services on a monthly basis. Examples include a maximum number of Accounts or a maximum quantity of data storage or network traffic.
- If the usage limits are exceeded, Billy Grace may charge additional costs, or (after providing a written warning) limit the use of the Services to the permitted capacity. Use beyond the agreed usage scope by Customer without prior agreement entitles Billy Grace to invoice Customer for the additional usage made at Billy Grace’s then current standard pricing for such expanded use.
- If no limit has been set for the capacity, a fair use policy will apply to the Services concerned. This must be understood to mean that the Customer may use a maximum of twice the capacity used by other Billy Grace average customers under similar circumstances.
- Billy Grace is not liable for the consequences of the Services not functioning properly if the Customer exceeds the applicable usage limit, whether or not based on fair use.
10. Intellectual Property Rights
- All Intellectual Property Rights in or related to the Software and the Services and other Materials developed or provided by Billy Grace under the Agreement, and any modifications thereto, including those suggested or requested to be made by Customer (but excluding any Customer Data) are and will remain to be fully and wholly owned by Billy Grace and its licensors.
- Billy Grace acquires all Intellectual Property Rights, with the exception of Customer Data, which arise in relation to the Services and (use of) the Software. To the extent necessary, these Intellectual Property Rights are hereby transferred in advance by Customer to Billy Grace, for the moment at which the intellectual Property Rights arise. This transfer is hereby accepted by Billy Grace.
- The Customer only acquires a non-exclusive, non-transferable and non-sublicensable right to use the Software and other Materials for the term of the Agreement, and only for its own use.
- The Customer is forbidden from modifying the Software and other Materials or modifying or removing any indications of Intellectual Property Rights from these.
- The Customer is expressly not entitled to access the source code or the source files of the Software and other Materials, except in those circumstances in which this is permitted pursuant to mandatory law.
- The Customer is forbidden from reverse engineering the Software and other Materials (for instance through decompilation), except in those circumstances in which this is permitted pursuant to mandatory law.
- Billy Grace can take technical and other measures to protect the Software or Materials. Where such security measures have been implemented, the Customer may not remove or circumvent these.
11. IP indemnity
- As far as Billy Grace is aware, the Software and the Services provided by Billy Grace do not infringe upon any third-party Intellectual Property Rights when used in accordance with the applicable terms. Billy Grace shall, as sole and exclusive remedy, defend the Customer at its expense against any claim from a third-party that the use of the Billy Grace Software and/or the Services by the Customer infringes any third-party ‘s Intellectual Property Rights.
- Billy Grace shall pay all costs, damages and attorney’s fees that a court finally awards as a result of such a claim or make all payments related to a settlement agreed by Billy Grace with such third-party concerning such claim, provided that:
- A. Such claim is not in any way caused by any Customer Data or any act or omission of the Customer or End User;
- B. Customer promptly notifies Billy Grace in writing of such claim; and
- C. allows Billy Grace to control, and fully co-operates with Billy Grace in, the defense against such claim and any related settlement negotiations.
- If a claim for infringement of Intellectual Property Rights of a third party is made or in the reasonable opinion of Billy Grace is likely to be made then, at Billy Grace ‘s option:
- A. Billy Grace will procure a license from the holder of the relevant Intellectual Property Rights to enable the Customer to continue to use the Software and/or the Services ; or
- B. Billy Grace will replace the relevant part to the Software and/or the Services with a modified version thereof, which does not infringe the third-party Intellectual Property Rights; or
- C. Billy Grace may terminate the Agreement against a proportional repayment of the fees pre-paid by the Customer for unused portions of the use of the Software and/or Services.
12. Customer Data and privacy
- All rights to the Customer Data shall remain with the Customer.
- If and in so far as the Customer Data consists of personal data within the meaning of the General Data Protection Regulation (‘GDPR’), and personal data is being processed, the parties shall enter into a data processing agreement.
- Each party will ensure compliance of its activities to the applicable privacy laws in using respectively providing the Software and/or the Services. Where Billy Grace processes personal data while performing the Services, it will act as data processor under the direction and responsibility of Customer as controller in accordance with EU Privacy Directive 2016/679 (the General Data Protection Regulation or “GDPR”). The Customer will at all times ensure compliance with the GDPR and other applicable data protection laws, when using the Software and/or Services and when instructing Billy Grace in configuring and using the Software for the Customer.
- If the Agreement is terminated, regardless of the reason for such termination, Billy Grace will return (for up to one month after such termination), destroy or delete the Customer Data as soon as possible and is not obligated to provide a copy thereof to the Customer.
- The previous clause is without prejudice to the possibility of Billy Grace to use and further process Customer Data in anonymised form for statistical purposes (for example regarding the training of its artificial intelligence and algorithms).
- Ultimate responsibility and obtaining relevant consents: With respect to applicable privacy and other laws Billy Grace may share prior experiences and perceived market practices in respect of the use of the Software, but this is done expressly without accepting any liability or responsibility. Billy Grace is not a legal advisor or law firm and the ultimate responsibility for ensuring compliance to applicable laws in using the Software (and in particular obtaining relevant consents from persons whose personal data is used by means of the Software and/or third parties) is and remains at all times with the Customer.
- The parties will treat Confidential Information of the other party as strictly confidential and use it only for the purpose for which it is provided.
- The receiving party will ensure that the Confidential Information of the disclosing party is given the same level of protection as its own confidential information, but at least a reasonable level of protection.
- The parties will also impose the obligation described above concerning Confidential Information on their employees and any third parties engaged.
- The obligation to treat Confidential Information as confidential will not apply if and insofar as the receiving party can prove that the Confidential Information:
- was already in the possession of the receiving party prior to date on which it was provided;
- is available from a third party without this party acting in breach of any duty of confidentiality in respect of the disclosing party by providing it;
- is available from public sources such as newspapers, patent databases, publicly accessible websites or services; or
- was developed independently by the receiving party and without the use of any information of the disclosing party.
- If a party receives an order from a competent authority to hand over Confidential Information, it will be entitled to proceed to hand it over. The disclosing party will however be informed as soon as possible (in advance) of the order, unless this is legally prohibited. If the disclosing party states that it intends to take measures against the order (for instance, via preliminary relief proceedings), the receiving party will wait before handing over the information until a decision has been taken on this, insofar as this is permitted by law.
14. Terms of payment
- In exchange for the Services, the Customer will be required to pay the prices stated in the offer or during the ordering process on the Website. Unless expressly indicated otherwise, all prices are exclusive of value added tax (VAT) and other duties levied by the government.
- Unless otherwise agreed, by entering into the Agreement, the Customer grants a SEPA authorization to Billy Grace and/or Shopify (or other third party app store) to automatically debit the amounts owed by the Customer from the Customer’s bank account. The Customer hereby agrees to Billy Grace sending electronic invoices. All invoices sent by Billy Grace are subject to a 14-day payment term.
- The Customer shall ensure a sufficient balance in the bank account designated for the direct debit. If a debit cannot be made, the Customer shall pay the amounts invoiced by Billy Grace by other means before the end of the due date.
- If the Customer fails to pay an invoice, or pay it in full, within the payment term, the Customer will be in default by operation of law. In such case, Billy Grace is entitled (i) to charge the Customer the statutory interest for commercial transactions on the outstanding amount, and (ii) to suspend provision of all or part of the Services until the Customer has paid the outstanding amount in full.
- If the Customer continues to fail to pay an invoice following a demand for payment or a notice of default, Billy Grace will be entitled to refer the claim for collection. Any extrajudicial costs and legal expenses incurred by Billy Grace, including the costs of legal experts, lawyer’s fees, bailiff costs and the costs of debt collection agencies, will in such a case be completely at the Customer’s expense.
- Billy Grace is authorised to adjust its rates on an annual basis on the basis of the CBS (“Centraal Bureau voor de Statistiek”) consumer price index (all households), series 2015=100, for January relative to January of the preceding year. In such case, the Customer is not entitled to terminate the Agreement, unless the price increase amounts to more than 5 percent.
- The Customer is not entitled to set off any of its payment obligations against any claims it has on Billy Grace, for whatever reason.
- Per calendar year, Billy Grace’s total liability for loss, damages or other claims based on an attributable breach (including breaches of warranties or indemnities), an unlawful act or any other ground is limited to 50% of the total fees actually paid by Customer to Billy Grace under the Agreement during the previous full calendar year prior to the loss, damages or claims arising, regardless of the number of events (or if no services were provided in the previous calendar year to Customer under the Agreement, the total fees paid in the initial 6 months of the term of the Agreement.
- Without prejudice to the provisions above, Billy Grace will expressly not be liable towards the Customer or towards third-parties for indirect loss or damage. Indirect loss or damage will be understood to include: lost profits, lost turnover, missed savings, reduced goodwill and damage or loss due to business interruption, damage to data, or damage to good name, whether such damages arise under a tort, contract or other claim, even if Billy Grace has been informed of the possibility of such damages.
- Billy Grace will only be liable in connection with an attributable failure in the performance of the Agreement if the Customer gives Billy Grace proper notice of default without delay and in writing, offering Billy Grace a reasonable period in which to remedy the failure, and Billy Grace continues to attributably fail to comply with its obligations even after that period. The notice of default must contain as detailed a description of the failure as possible in order to enable Billy Grace to put forward an adequate response.
- Billy Grace cannot be held liable in any way for damages caused by the use, incompleteness or inaccuracy of the information provided in the Software and/or the Services.
- Any limitations or exclusions of Billy Grace’s liability as stipulated in the Agreement will lapse if and insofar as the loss or damage is due to intent or willful recklessness on the part of Billy Grace..
- The provisions in this clause shall also apply for the benefit of the employees of Billy Grace and of the subcontractors and licensors utilized by Billy Grace in executing its obligations toward the Customer.
- The Customer will indemnify and hold Billy Grace harmless from any third-party claims and related reasonable legal costs caused by or related to Customer’s use of the Services and the Software, expressly including but not limited to any claim from any third-party caused by a violation of such third-party’s rights or of applicable privacy or other laws by Customer in using the Services and the Software. This indemnification cannot be limited.
16. Force majeure
- Billy Grace will not be obliged to perform the Agreement if performance is prevented as a result of force majeure.
- The parties will in any case consider the following to be force majeure, without limitation: fire, floods, strikes, power failures, telecommunications infrastructure failures, force majeure on the part of Billy Grace’s own suppliers, network attacks, import and export impediments, war and terror. Any liquidity problems on the Customer’s part do not qualify as force majeure.
- To the extent that Billy Grace had already fulfilled part of the Agreement by the time the force majeure situation arose or will be able to fulfil part of the Agreement, and such partial fulfilment can be ascribed an independent value, Billy Grace is entitled to invoice for such fulfilment separately.
- In the event of force majeure, Billy Grace can suspend the performance of the Agreement for as long as the situation continues. If the situation lasts longer than 3 months, both parties will be entitled to terminate the Agreement in writing, without any obligation to pay the other party compensation.
17. Duration and termination
- The Agreement is entered into for an indefinite period and may be terminated online via the Software by either party, with due observance of a period of notice of 30 days.
- The Parties may not terminate the Agreement in the interim, save for those circumstances for which an exception is expressly made in these general terms and conditions or in other parts of the Agreement.
- Billy Grace will be entitled to suspend the Agreement with immediate effect (in full or in part) or terminate or dissolve the Agreement with immediate effect (in full or in part) if:
- the Customer fails to comply with its obligations under the Agreement or fails to comply with these in time and does not remedy the failures within a reasonable period after being given notice of default. Prior notice of default is however not required in those cases where default arises by operation of law;
- the Customer applies for bankruptcy or is declared bankrupt, applies for a moratorium or is granted a moratorium, the Customer’s company is liquidated, or its business activities are discontinued;
- circumstances arise due to which performance of the Agreement is rendered impossible, or due to which Billy Grace cannot reasonably be required to maintain it unchanged.
- Billy Grace may early terminate the then current term for the Software and/or the Services provided by Billy Grace in case Billy Grace decides to end support for the relevant service for all its customers. Billy Grace will in such case use its reasonable effort to provide at least 2 months prior notice of such termination. Where possible Billy Grace will offer a migration path for the Customer to alternative software/services replacing the terminated software/services which the Customer will be free to accept or reject.
- In the case of rescission of the Agreement, there will not be any cancellation obligations (“ongedaanmakingsverplichtingen”) regarding the Services that Billy Grace has already provided, and the corresponding payment obligations.
- Following termination or dissolution of the Agreement, any remaining claims of Billy Grace on the Customer will be immediately due and payable, including for fees that would have become due for the remainder of the agreed initial term of the subscription period for the Software and/or Services, regardless of the reason for such termination. No refunds are provided for pre-paid amounts, except in case of termination by the Customer for an uncured default of Billy Grace.
- Billy Grace is authorised to unilaterally amend these general terms and conditions of which Billy Grace will notify Customer in writing.
- If the Customer does not wish to accept a change, the Customer can lodge a written objection within 14 days after the announcement. If Billy Grace decides to proceed with the change despite the Customer’s objection, the Customer can terminate the Agreement, in writing, with effect from and no later than the date on which the change takes effect.
- The procedure described above does not apply to changes of minor significance or changes that benefit the Customer. Billy Grace may implement such changes unilaterally and with immediate effect.
- The parties can only transfer the rights and obligations arising from the Agreement to a third party with the written permission of the other party. Billy Grace will, however, be authorised to transfer the Agreement, without the Customer’s prior permission or cooperation to a parent company, sister company or subsidiary, or to a third party in the event of a merger or acquisition. Billy Grace will inform the Customer as soon as possible, in writing, after such a transfer has taken place.
- The applicability of the Customer’s purchasing or other general terms and conditions is expressly rejected. If the Customer accepts an offer or requested an offer with reference to additional or deviating terms or conditions of Customer (such as purchasing terms of the Customer), then such deviating or additional terms shall not apply between the parties unless these are explicitly accepted in a written statement issued and signed by an authorized representative of Billy Grace. In any case the terms of the offer itself, including these general terms and conditions, shall take precedence over any deviating terms and conditions of the Customer.
- For the purpose of this clause a “Billy Grace Employee” is any person who works for Billy Grace or in the past 24 months worked for Billy Grace on any basis including as employee, freelancer or as seconded worker (uitzendkracht) and who performed Services for the Customer under an Agreement for the Customer. The Customer may not during the term of any Agreement concluded between Billy Grace and the Customer and up to 24 months after the provision of Services under all Agreements between Billy Grace and the Customer has ended:
- A. directly or indirectly employ, hire or on any other basis have Billy Grace Employees perform work for the Customer or for any company related or affiliated with the Customer; nor
- B. in any way promote entice, request or otherwise stimulate or facilitate that any third-party directly or indirectly employs, hires or on any other basis has Billy Grace Employees perform work for such third-party. For each violation of this clause, the Customer will incur a penalty of EUR 50.000, or if higher a penalty equal to the total gross yearly income of the relevant Billy Grace Employee. The right for Billy Grace to claim payment of this penalty is without prejudice to the right to also enforce compliance to this clause and to claim damages suffered due to a breach of this clause. If the Customer procures the Services of Billy Grace for the benefit of a third-party (e.g. to assist the Customer in performing services to such third-party ), then the Customer must ensure that such third-party also fully complies to this clause and the Customer will be liable for any breach by such third-party of this clause as if the Customer itself breached this clause.
- The Agreement is subject to Dutch law. Any dispute between the parties in connection with the Agreement will be submitted to the competent court in the Netherlands in the district where Billy Grace has its registered office.
- If any provision in the Agreement proves to be void, voidable or otherwise invalid, this will not affect the validity of the entire Agreement. In such a case, the parties will replace that provision with a new provision that will reflect the purpose of the original clause as much as is possible under the law.
Data processing agreement
This data processing agreement is applicable to all processing of personal data to be undertaken by Fox Technology B.V., registered with the Chamber of Commerce under number 85199761, (hereinafter: Processor) for the benefit of another party to whom it provides services (hereinafter: Controller) on the basis of the agreement concluded between these parties (hereinafter: the Agreement).
1. Purposes of processing
- Processor hereby agrees under the terms of this Data Processing Agreement to process personal data on behalf of the Controller.
- The personal data to be processed by Processor for the purposes as set out in the previous clause and the categories of data subjects involved are set out in Appendix 1 to this Data Processing Agreement. Processor shall not process the personal data for any other purpose unless with Controller’s consent. Controller shall inform Processor of any processing purposes to the extent not already mentioned in this Data Processing Agreement. Processor however is permitted to use personal data for quality assurance purposes, including surveys to data subjects and statistical research purposes regarding the quality of Processor’s services.
- The previous clauses of this article are without prejudice to the right of Billy Grace to use and further process Customer Data in anonymised form for statistical purposes (for example regarding the training of its artificial intelligence and algorithms).
- All personal data processed on behalf of Controller shall remain the property of Controller and/or the data subjects in question.
2. Processor obligations
- Regarding the processing operations referred to in the previous clause, Processor shall comply with the in the European Union applicable legislation, including at least data processing legislation such as the GDPR.
- All obligations for Processor under this Data Processing Agreement shall apply equally to any persons processing personal data under the supervision of Processor.
- Processor shall provide reasonable assistance, at the expense of Controller and without disturbing of business processes of Processor, to Controller in the context of any data protection impact assessments to be made by Controller.
- Processor shall, in accordance with Article 30 GDPR, keep a register of all categories of processing activities which it carries out on behalf of the Controller under this data processing agreement. At Controller’s request, Processor shall provide Controller access to this register.
3. Transfer of personal data
- Processor may process the personal data in any country within the European Union.
- Transfer to countries outside the European Union is, unless in conformity with the GDPR, not permitted.
4. Allocation of responsibilities
- The authorised processing operations shall be performed in a fully automated fashion under control of Processor.
- Processor is solely responsible for the processing of personal data under this Data Processing Agreement in accordance with the instructions of Controller and under the explicit supervision of Controller. For any other processing of personal data, including but not limited to any collection of personal data by Controller, processing for purposes not reported to Processor, processing by third parties and/or for other purposes, the Processor does not accept any responsibility.
- Controller represents and warrants that the content, usage and instructions to process the personal data as meant in this Data Processing Agreement are lawful and do not violate any right of any third party.
5. Involvement of sub-processors
- Controller agrees that Processor may engage third parties to process personal data on behalf of Controller (“Sub-processors”). Processor has or will enter into written agreement with each Sub-processor containing data protection obligations not less protective than those in this Data Processing Agreement to the extent applicable to the nature of the services provided by such Sub-processor.
- The current Sub-processors for the Services are AWS and Data Bricks and Controller agrees and approves that Processor has engaged such Sub-processors to process personal data as set out in the list.
- For the avoidance of doubt, where any Sub-processor fails to fulfil its obligations under any sub-processing agreement or under applicable law Processor will remain fully liable to Controller for the fulfilment of its obligations under this DPA.
- Processor shall use reasonable efforts to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk for the processing operations involved, against loss or unlawful processing (in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed).
- Processor does not warrant that the security is effective under all circumstances. Processor shall use all reasonable efforts to ensure a level of security appropriate to the risk taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
- Controller shall only provide personal data to Processor for processing if it has ensured that the required security measures have been taken. Controller is responsible for the parties’ compliance with these security measures.
7. Notification and communication of data breaches
- Processor shall notify Controller as soon as possible and without unreasonable delay of any security breach of personal data.
- A notification under the previous clause shall be made only for actual breaches with severe impact.
- The notification shall include at least the fact that a breach has occurred. In addition, the notification shall:
- describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
- describe the likely consequences of the personal data breach;
- include the name and contact details of the Data Protection Officer (if appointed) or a contact person regarding privacy subjects;
- describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
- Processor shall document all data breaches in accordance with Article 33(5) GDPR, including the facts relating to the personal data breaches, the consequences thereof and the measures taken to correct the respective breach. At Controller’s request, Processor shall provide access hereto.
8. Processing requests from data subjects
- In the event a data subject makes a request to exercise his or her legal rights under the GDPR (Articles 15-22) to Processor, Processor shall pass on such request to Controller, and Controller shall process the request. Processor may inform the data subject of this passing on.
9. Confidentiality obligations
- All personal data that Processor receives from Controller and/or collects itself is subject to strict obligations of confidentiality towards third parties. Processor shall not use this information for any goals other than for which it was obtained..
- The confidentiality obligation shall not apply if this agreement provides otherwise (as, for example, in the case of sub-processing), the provision to third parties is reasonably necessary considering the nature of the assignment to Controller or the provision is legally required.
- Controller has the right to have audits performed, no more thanonce year and without disturbing the business processes of Processor, on Processor by an independent third party bound by confidentiality obligations to verify unauthorised use of personal data by Processor personnel, and all issues reasonably connected thereto.
- This audit may be performed in case a substantiated allegation of misuse of personal data has arisen.
- Processor shall give its reasonable cooperation to the audit..
- The costs of the audit (at then current standard rates of Processor) shall be borne by Controller.
- Parties explicitly agree that any liability arising in connection with personal data processing shall be as provided in the Agreement.
12. Term and termination
- This Data Processing Agreement enters into force upon signature by the parties and on the date of the last signature.
- This Data Processing Agreement is entered into for the duration of the Agreement unless otherwise agreed upon in writing.
- Upon termination of the Data Processing Agreement, regardless of reason or manner, Processor shall – at the choice of Controller – return in original format or destroy all personal data available to it.
- Processor is entitled to amend this Data Processing Agreement from time to time. Processor shall notify the Controller of amendments at least two months prior to their taking effect. Controller may terminate if the amendments are unacceptable to it.
13. Applicable law and competent venue
- This Data Processing Agreement and its execution are subject to Dutch law.
- Any disputes that may arise between the parties in connection with this Data Processing Agreement shall be brought to the competent court for the place of business of Processor.
Appendix 1: Stipulation of personal data and data subjects
Data subjects and personal data of different purposes
Processor shall process the below personal data of the categories data subjects from differentpurposes (with retention period if specified) under the supervision of Controller, as specified in article 1 of the Data Processing Agreement:
Contact persons – clients Billy Grace
- Names and addresses
- Company Telephone numbers
- Company Email addresses
- Social media ad accounts connected to Billy Grace
Customers (via Pixel)
- Anonymous first party behavior data, which can include:
- Hashed IP addresses
- Browser type and version
- Operating system
- Referral source (e.g. the website or page that directed the user to the client’s website) Pages visited on the client’s website
- Date and time of visit
- Clicks on links and buttons on the client’s website
- Interactions with forms on the client’s website (e.g. search queries or form submissions) Other similar anonymous data that can be used for analytics and marketing purposes.