Master Services Agreement
Last updated: March 1, 2019
THESE SERVICES TERMS (“AGREEMENT”) GOVERN TAPRESEARCH’S PERFORMANCE OF
SERVICES, UNLESS YOU AND TAPRESEARCH ARE PARTIES TO A SEPARATE WRITTEN
AGREEMENT FOR THE PERFORMANCE OF SERVICES. YOU MAY NOT ACCEPT OR EXECUTE
THIS AGREEMENT UNLESS (A) YOU ACT FOR A BUSINESS OR OTHER ORGANIZATION; (B)
YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION; AND (C) YOU ARE
AUTHORIZED TO ACT ON BEHALF OF YOUR ORGANIZATION. YOU ACCEPT THIS AGREEMENT
WITH TAPRESEARCH AS DESCRIBED IN SECTION 1.2 BELOW, AND THE DATE OF SUCH
ACCEPTANCE SHALL BE THE “EFFECTIVE DATE” OF THIS AGREEMENT. TAPRESEARCH
WILL NOT BE BOUND BY ADDITIONAL OR ALTERNATIVE TERMS OR CONDITIONS ADDED OR
DELETED BY CUSTOMER, PRINTED OR OTHERWISE, ON ANY PURCHASE ORDER, ORDER
FORM, STATEMENT OF WORK, INSTRUCTIONS OR SIMILAR DOCUMENT. This Agreement
is between the customer named in the Ordering Document (“You” or “Your” or
“Customer”) and TapResearch Inc. (each, a “party,” collectively, the
“parties”) and constitutes the entire understanding related to the subject
1.1 Description of Services. Subject to the terms of this
Agreement, TapResearch will perform survey-related work (“Services”) for
Customer in accordance with the terms of the applicable order form or other
ordering instrument, such as a statement of work, purchase order or
customer-configured project specifications, that is mutually agreed upon
and executed by the parties (each an “Ordering Document”). Each Ordering
Document will set forth the terms of the engagement, describe the Services
(including the parameters and scope of such Services), and set forth the
applicable fees for the Services. Customer will notify TapResearch when to
cease its performance of the Services, upon which the Services under the
applicable Ordering Document will conclude (“Survey Completion”). The
parties agree that TapResearch may use its affiliated companies or
contractors to perform Services. Each Ordering Document is incorporated
herein by reference and will be governed by this Agreement. Company will
provide TapResearch with a set of survey questions, or survey
specifications and survey entry link, and any other related materials
(“Survey Specs”), which are intended to be presented, offered and made
available to survey respondents in connection with TapResearch’s
performance of the Services under the applicable Ordering Document. An
Ordering Document may only be modified through a Change Order (defined
1.2 Acceptance of Ordering Document. An Ordering Document
is deemed to have been accepted and is binding on both parties on the
earlier of when Customer: (a) executes and returns an Ordering Document to
TapResearch; (b) acknowledges acceptance of the Ordering Document by e-mail
or any other commercially reasonable electronic means, by a person duly
authorized by Customer to execute the Ordering Document; (c) work has been
started by TapResearch at the direction of Customer; or (d) Customer has
directed TapResearch to place orders with its subcontractors in order to
satisfy the Ordering Document.
2. FEES; PAYMENTS; TAXES
2.1 Fees. Within ten (10) days following Survey
Completion, Customer will: (a) provide a written report detailing the
surveys accepted and the surveys rejected by Customer with respect to the
Services under such Ordering Document, explaining in sufficient detail
those surveys rejected; and; (b) remit full payment to TapResearch with
respect to the fees charged for the Services, in accordance with
TapResearch’s then-current rates or as otherwise agreed upon in writing by
Customer and TapResearch. Notwithstanding the foregoing: (1) Customer may
only reject a survey that it believes in good faith to contain
substantially poor respondent data or fraudulent data; (2) Customer must
remit full payment to TapResearch with respect to the fees charged for all
surveys that Customer is not entitled to reject hereunder; and (3)
TapResearch reserves the right, at any time, to verify Customer’s
compliance with its obligation to remit full payment with respect to the
Services performed, including without limitation the validity of the
accepted and/or rejected surveys relating to such Services. Customer
understands that the monetary amounts or limits stated in the Ordering
Document may be estimates for Customer’s budgeting and TapResearch’s
resource scheduling purposes and may not necessarily be the actual amount
of fees owed by Customer with respect to the Services rendered. Except as
expressly set forth in this Agreement, the Services are non-cancelable and
all fees with respect to the Services are non-refundable. Customer is not
entitled to withhold or offset any amounts with respect to the Services
performed by TapResearch.
2.2 Payments. All fees hereunder are due and payable to
TapResearch by Customer thirty (30) days from date of invoice, unless
otherwise agreed in an Ordering Document. Any payments due
to TapResearch which remain unpaid after the due date will be considered
delinquent and will accrue interest on such sums on a daily basis from the
date when payment became due until the date on which payment is received,
which interest will be equal to the greater of (a) the maximum legally
permissible interest rate; or (b) an interest rate of five percent (5%)
greater than the then-current rate published by the San Francisco, CA
office of the Federal Reserve. In the event of late payments, non-payments,
chargebacks or bad debts, TapResearch reserves the right to invoice
Customer for any associated fees, costs or expenses incurred by
TapResearch, which are in addition to the fees for the Services.
2.3 Taxes. All amounts payable pursuant to this Agreement
are exclusive of any taxes, duties, and similar charges, including without
limitation sales, usage, excise and value added taxes, VAT and GST
(“Taxes”), all of which shall be the sole responsibility of Customer,
provided that Customer is not liable for those taxes attributed solely to
TapResearch’s net income. Customer will not withhold Taxes from any amounts
payable to TapResearch, except as may be required under applicable law. If
such withholding is required, then Customer will promptly furnish
TapResearch with the official receipt of payment of such Taxes to the
appropriate taxing authority. If Taxes are withheld and TapResearch does
not receive the appropriate tax certificate within thirty (30) days after
the payment due date, Customer will immediately remit full payment to
TapResearch for the outstanding amount, plus interest calculated from the
payment due date to the date of payment in accordance with this Section 2.
Customer will indemnify TapResearch for all costs, losses, liabilities and
expenses, including penalties, arising from its failure to pay Taxes.
3. LICENSE; OWNERSHIP; PROHIBITED USES OF THE SERVICES
3.1 License. Unless otherwise set forth in an Ordering
Document and subject to Customer’s compliance with the terms of this
Agreement (including without limitation the prohibited uses in Section 3.3
below), Customer hereby receives a limited, revocable, nonexclusive,
nontransferable license to use any responses received from survey
respondents that are stored on the TapResearch platform for the duration of
the Term, provided such use is made solely for Customer’s business
3.2 Ownership. Notwithstanding Section 3.1 above,
TapResearch and its licensors will exclusively own and retain all rights,
title, and interest in and to any and all data, information or software on
its proprietary systems relating to or collected through TapResearch’s
performance of the Services and any usage data, demographic data, and
compilations thereof, as well as any and all feedback provided by Customer
in connection with this Agreement (collectively, “TapResearch Materials”).
As between Customer and TapResearch, all intellectual property rights in
and to Survey Specs, survey data, and responses collected and processed
solely by You off the TapResearch platform without use of the TapResearch
Materials is owned exclusively by You (collectively, “Survey Data”).
3.3 Prohibited Uses. Customer’s use of the Services shall
not include service bureau use, reselling, outsourcing, renting,
distributing, sublicensing, or otherwise commercially exploiting or making
available to any third party the Services. Customer shall not and shall not
permit any third party to: (a) copy, translate, create derivative works of,
reverse engineer, reverse assemble, disassemble, or decompile the Services
or otherwise attempt to discover any source code or modify the Services in
any manner or form; (b) access, penetrate, probe or scan the Services for
purposes of monitoring availability, performance or functionality, or for
any other benchmarking or competitive purposes; (c) use the Services to
conclude fraudulent or otherwise illegal surveys; or (d) use the Services
for the purpose of building a similar or competitive offering. Customer
shall not and shall not permit any third party to use the Services: (1) in
violation of, or which would cause another person to be in violation of
applicable laws, including without limitation, the U.S. economic sanctions
administered by the Office of Foreign Assets Control, U.S. Department of
the Treasury; (2) to publish, post, upload, send, store or otherwise
transmit material that is unlawful, harassing, libelous, defamatory,
threatening or otherwise in violation of any third party rights of privacy
or other intellectual property rights; or (3) to publish, post, upload, or
otherwise transmit material containing software viruses, worms, Trojan
horses, or other harmful computer code, files, scripts, agents, or programs
that are intended to interfere with or otherwise disrupt the integrity or
performance of the Services.
4. CONFIDENTIALITY AND COMPLIANCE OBLIGATIONS
4.1 “Confidential Information” shall mean any information
designated in writing, or identified orally at time of disclosure and
confirmed as such in writing within thirty (30) days of the oral
disclosure, by the disclosing party as “confidential” or “proprietary.”
TapResearch’s Confidential Information shall include without limitation the
TapResearch Materials, and all code, inventions, know-how, trade secrets,
strategies, business, technical and financial plans and any other
information of TapResearch irrespective of whether any confidentiality
marking is present. Customer understands and agrees that it will not
provide TapResearch with any personal data or otherwise give TapResearch
access to any personal data, unless Customer first identifies and notifies
TapResearch of such data, and TapResearch has agreed in writing to accept
such data from Customer.
4.2 Non-Disclosure Obligations. Each party will keep
confidential, and neither party will use for any purpose, or disclose to
any third party, any Confidential Information of the other party, except as
otherwise permitted by this Agreement. The receiving party will use a
degree of care in protecting the disclosing party’s Confidential
Information which it uses in protecting its own Confidential Information,
which shall in no event be less than reasonable care. Notwithstanding
anything to the contrary, TapResearch may disclose Customer’s Confidential
Information to TapResearch’s employees, directors, officers, agents,
contractors, attorneys, accountants, and other third parties who have a
“need to know” in connection with the performance of TapResearch’s
obligations hereunder. Customer acknowledges that unauthorized disclosures
of Confidential Information may cause substantial harm for which damages
alone may not be a sufficient remedy, and therefore upon any such
disclosure by Customer, TapResearch will be entitled to seek appropriate
equitable relief in addition to whatever other remedies it may have at law.
4.3 Exclusions. The obligations under Section 4.2 do not
apply to information to the extent such information: (a) has been
independently developed by the receiving party without access to the other
party’s Confidential Information; (b) has become publicly known through no
breach of this Section 4 by the receiving party; (c) has been rightfully
received from a third party authorized to make such disclosure; (d) has
been approved for release in writing by the disclosing party; or (e) is
required to be disclosed by a competent legal or governmental authority,
provided that the receiving party gives the disclosing party prompt written
notice of such requirement prior to disclosure and uses its best efforts to
assist in obtaining an order to protect the information from public
4.4 Publicity. Customer hereby grants to TapResearch a
royalty-free, fully paid up, sub-licensable, transferrable, non-exclusive,
worldwide and perpetual license to reproduce, display, distribute and
otherwise use the trademarks, service marks, logos or other indicia of
origin associated with Customer for the purpose of indicating that Customer
is a client of TapResearch in TapResearch’s advertising, marketing or other
4.5 Compliance. Customer owns the relationships and
primary privacy compliance obligations with respect to its survey
respondents and to any end customers. Customer shall ensure and hereby
warrants that its survey respondents receive accurate privacy notices and
an appropriate consent mechanism, if required by applicable laws. Customer
is responsible for all activity conducted by using the Services and shall
abide by all applicable laws in connection with its use of the Services,
including those related to data privacy, international communications,
COPPA and other age restrictions, the transmission of data, and data
4.6 Personal Data Elements within Survey Data. The parties
acknowledge and agree that with regard to the control and processing of
personal data elements within the Survey Data, Customer is the controller
and TapResearch is the processor, as such terms are defined under the Data
Protection Laws and Regulations (as defined below in Section 4.6). Customer
shall control and use personal data in accordance with the requirements of
Data Protection Laws and Regulations. Customer’s instructions for the
processing of personal data shall comply with Data Protection Laws and
Regulations. Customer shall have sole responsibility for the accuracy,
quality, appropriateness and legality of any such personal data and the
means by which TapResearch acquires any such personal data.
4.7 Personal Data Elements within TapResearch Materials.
The parties also acknowledge and agree that with regard to the control and
processing of personal data elements within the TapResearch Materials,
TapResearch is the controller and Customer is the processor, as such terms
are defined under the Data Protection Laws and Regulations. TapResearch
shall control and use personal data in accordance with the requirements of
Data Protection Laws and Regulations. TapResearch’s instructions for the
processing of personal data shall comply with Data Protection Laws and
Regulations. TapResearch shall have sole responsibility for the accuracy,
quality, appropriateness and legality of any such personal data and the
means by which the Customer acquires any such personal data. If the parties
have not executed a separate data processing agreement, TapResearch’s form
of data processing agreement shall apply to any personal data processed by
Customer at the direction of TapResearch, as defined in Schedule 1.
“Data Protection Laws and Regulations” means all laws and regulations,
including laws and regulations of the United States, European Union, the
European Economic Area and their member states, Switzerland and the United
Kingdom, applicable to the processing of personal data under this
5.1 Warranties. Without
limiting any other representation, warranty or covenant herein, each party
hereby represents and warrants to the other that: (a) it has the full
right, power and authority to enter into this Agreement; and (b) this
Agreement is a valid and binding obligation upon such party. Additionally,
Customer hereby warrants and represents that: (1) Customer has obtained and
shall maintain all necessary licenses, authorizations, approvals and
consents to enter into and perform its obligations hereunder (including any
necessary rights or consents from third parties to allow TapResearch to
make the Survey Specs available to respondents); (2) the Survey Specs do
not infringe or otherwise violate any third party’s intellectual property
or proprietary rights; and (3) Customer will comply with all applicable
laws, rules and regulations in the performance of this Agreement.
5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, TAPRESEARCH MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO ANY MATTER, INCLUDING THE SERVICES AND SURVEY
MATERIALS, WHICH ARE OFFERED SOLELY ON AN “AS-IS” AND “AS AVAILABLE” BASIS.
ANY USE OF THE SERVICES OR SURVEY MATERIALS IS AT CUSTOMER’S SOLE RISK.
TAPRESEARCH EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF
NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR
THAT THE SERVICES, SURVEY MATERIALS, OR THE USE OF EITHER OF THE FOREGOING
WILL BE OF SATISFACTORY QUALITY, OR UNINTERRUPTED OR ERROR-FREE, OR WILL
NECESSARILY YIELD CUSTOMER A CERTAIN RESULT OR OTHERWISE BE OF ANY USE OR
VALUE TO CUSTOMER. THE REMEDIES SET FORTH HEREUNDER WILL BE THE CUSTOMER’S
SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE SERVICES AND SURVEY
6.1 Customer Indemnification. Customer agrees to
indemnify, defend and hold TapResearch and its affiliates and their
respective officers, directors, employees, agents, and independent
contractors harmless from and against any losses, costs, liabilities,
damages, claims and expenses, including attorneys’ fees, arising out of:
(a) Customer’s breach of this Agreement; or (b) claims that any Survey
Specs or any content thereof made available or provided by Customer
infringes any third party’s intellectual property rights, privacy, rights
of publicity or other rights. Customer reserves the right, at Customer’s
sole expense, to assume the exclusive defense and control of any matter for
which Customer is required to indemnify TapResearch and TapResearch agrees
to reasonably cooperate with Customer’s defense of such claims. Customer
shall not enter into any settlement for which indemnity is sought unless:
(1) such settlement includes an unconditional release of TapResearch from
all liability on all claims; or (2) TapResearch gives its prior written
approval, which shall not be unreasonably withheld.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL TAPRESEARCH OR ITS AFFILIATES BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY OR
PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF
TAPRESEARCH OR A TAPRESEARCH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL TAPRESEARCH’S OR ITS AFFILIATES’ MAXIMUM AGGREGATE
LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING
OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT,
INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS ACTUALLY
PAID BY CUSTOMER TO TAPRESEARCH HEREUNDER DURING THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE CLAIM OR $500, WHICHEVER IS LESS.
THE PARTIES AGREE THAT THE FOREGOING PROVISIONS FAIRLY ALLOCATE THE
PARTIES’ RISKS AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN,
WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
8.1 Change Orders. If the relevant requirement(s), project
plan(s), schedule, scope, specification(s), design(s), software, hardware
product(s), or related system environment(s) or architecture in connection
with an Ordering Document are changed by Customer or any other person,
TapResearch will not be responsible for any Services arising from the
change unless Customer and TapResearch specifically consent to the change,
scheduling, and additional charges, if any, in a written document signed by
both parties (each a “Change Order”).
9. TERM AND TERMINATION
9.1 Term. This Agreement will commence on the Effective
Date and will remain in effect until terminated in accordance with Section
9.2 (the “Term”).
9.2 Termination. TapResearch may terminate this Agreement
at any time for any or no reason by providing written notice to Customer.
Additionally, in the event of a material breach by one party, the
non-breaching party may terminate this Agreement and/or the affected
Ordering Document if the breaching party fails to cure the material breach
within thirty (30) days of the non-breaching party’s notice of such
material breach. Notwithstanding the foregoing, TapResearch may terminate
this Agreement and/or all pending Ordering Documents if a breach of
Sections 3.3, 4.5, or 5.1 occurs.
9.3 Effect of Termination. Unless TapResearch notifies
Customer in writing otherwise, any and all pending Ordering Documents will
terminate upon any termination of this Agreement. Upon any termination of
this Agreement: (a) Customer will remit to TapResearch all payments owed up
to the effective date of termination; and (b) any and all license rights
and other privileges granted to Customer herein shall terminate
immediately. Provisions concerning the parties’ rights and obligations
which by the content of the provision operate after termination or which
are necessary to enforce any right shall survive termination of this
Agreement. Notwithstanding the foregoing, Sections 2, 3.2, 4 through 7, 9.3
and 10 shall survive any termination of this Agreement.
10.1 Governing Law; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law. The
United Nations Convention on Contracts for the International Sale of Goods
shall not apply. Any suit or proceeding arising out of or
relating to this Agreement will be brought in the federal and/or state
courts, as applicable, in San Francisco County, California, and each party
irrevocably submits to the jurisdiction and venue of such courts.
Notwithstanding the foregoing, any dispute arising hereunder will be
negotiated in good faith between the parties within thirty (30) days
commencing upon written notice from one party to the other and neither
party will file an action prior to the termination of such thirty (30) day
period. The parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, which shall not be considered a breach
of this Agreement.
10.2 Collection Expenses and Legal Fees. Customer will
reimburse TapResearch for all costs incurred in collecting delinquent
payments of money owed under this Agreement, including but not limited to
reasonable legal fees. In addition to the foregoing, the prevailing party
in any litigation with respect to any claim hereunder will be entitled as a
matter of right and not within the discretion of the arbitrator or judicial
officer, to recover its costs and expenses including, without limitation,
reasonable attorneys’ and witness’ fees.
10.3 No Waiver. Any failure by either party to enforce the
other party’s strict performance of any provision of this Agreement will
not constitute a waiver of its right to subsequently enforce such provision
or any other provision of this Agreement.
10.4 Force Majeure. If the performance of either party is
delayed or prevented at any time due to circumstances beyond its control,
including, without limitation, those resulting from labor disputes, fire,
floods, riots, civil disturbances, weather conditions, control exercised by
a governmental entity, unavoidable casualties or acts of God or a public
enemy, then the performance will be excused until such condition no longer
exists, except that this Section 10.4 does not excuse either party from any
of its payment obligations, nor does it excuse Customer from its
obligations under Section 4.
10.5 Notices. All notices or questions concerning this
Agreement should be directed to TapResearch as follows:
To TapResearch: TapResearch Inc.
1001 Laurel Street, Suite B
San Carlos, CA 94070
All notices or questions concerning this Agreement should be directed to
Customer at the address set forth in the Ordering Document(s). Notice is
effective only upon receipt by the receiving party.
10.6 Entire Agreement. This Agreement and all Ordering
Documents set forth the entire agreement between TapResearch and Customer,
and supersedes any and all prior or contemporaneous communications,
negotiations, representations, commitments, writings and agreements,
whether oral or written, with respect to the subject matter contained
herein. Any different or additional terms on Customer's purchase order or
similar document, whether dated before or after the date of this Agreement,
are expressly rejected. This Agreement may only be altered or modified by
written instrument duly executed by both parties.
10.7 Records and Inspections. Customer will maintain all
data, records, books, logs, manuals, policies, processes, controls and all
other information relating to Customer’s performance (collectively,
“Records”). TapResearch reserves the right to request, inspect and/or audit
the Records at any time upon advance notice (email acceptable) to Customer.
If any underpayment is discovered, Customer will refund to TapResearch the
amount of the underpayment. Customer will also reimburse TapResearch for
all reasonable expenses incurred in discovering the underpayment if: (a)
the underpayment is five percent (5%) or more of the fees payable by
Customer with respect to the applicable Services; or (b) it is discovered
that Customer has materially failed to maintain accurate records in
accordance with this Section 10.7.
10.8 Relationship of the Parties. The parties are
independent contractors hereunder. Nothing in this Agreement will be
construed to create a partnership, joint venture, or agency relationship
between the parties.
10.9 Severability. If a provision of this Agreement is
held invalid under any applicable law, such invalid provision shall be
deemed modified to the extent necessary to make it valid and enforceable to
reflect the original intent of the parties, or, if such provision cannot be
so modified, it shall be removed from this Agreement without affecting any
other provision of this Agreement.
: March 1, 2019.
Copyright 2019, TapResearch Inc.
All Rights Reserved.
DATA PROCESSING AGREEMENT
This Data Processing Agreement (this “DPA”) is entered
into by and between the customer for whom TapResearch is performing
Services (“Customer”) and TapResearch Inc
(“TapResearch”) and shall be effective as of the Effective
Date of the Agreement.
1.1. “Data Protection Laws” means the General Data
Protection Regulation (EU) 2016/679 as implemented in any applicable
territory or any equivalent data protection laws in any other applicable
territory, in each case as amended, replaced or supplemented and in force
from time to time, and all subordinate legislation made under them,
together with any codes of practice or other guidance issued by the data
protection regulator in the relevant applicable territory;
1.2. “Personal Data” means any information relating to an
identified or identifiable natural person within the TapResearch Materials;
1.3. “Personnel” means all officers, directors and
employees (including of its affiliates), independent contractors or service
providers of either Customer or TapResearch;
1.4. “Process(ing)” means any operation or set of
operations which is performed on Personal Data or on sets of Personal Data,
whether or not by automated means, such as collection, recording,
organization, structuring, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise
making available, alignment or combination, restriction, erasure or
1.5. “Services” means any services set out in any
agreement between TapResearch and Customer.
2.1. If, at any time, TapResearch requests that Customer Process Personal
Data on behalf of TapResearch: (a) the parties agree that for the purposes
of the Data Protection Laws, TapResearch is the data controller and
TapResearch is the data processor of any Personal Data; and (b) Customer
shall comply with the provisions of this DPA.
2.2. Customer and its Personnel shall process the Personal Data only to the
extent, and in such a manner, as is necessary for receipt of the Services
and in accordance with TapResearch’s written instructions from time to
time; Customer shall not Process Personal Data for any other purpose.
2.3. Customer shall immediately notify TapResearch if, in its opinion, any
instruction made pursuant to this DPA infringes
applicable Data Protection Laws.
2.4. Upon Customer’s request, Customer shall, and shall procure that its
Personnel and any sub-processors shall, immediately cease using the
Personal Data and promptly deliver in a manner acceptable to TapResearch
all documents and materials containing Personal Data or any other data or
information disclosed or supplied by TapResearch under or in connection
with this DPA or, at TapResearch’s written request and option, destroy them
and provide evidence of their destruction to TapResearch unless applicable
Data Protection Laws requires the storage of Personal Data.
2.5. Notwithstanding anything to the contrary, the obligations in this DPA
will remain in effect until deletion of all Personal Data by Customer as
described in this DPA.
3.1. Customer shall ensure that any Personnel with access to Personal Data
do not process Personal Data except in accordance with this DPA and agree
in writing to comply with the provisions set out in this DPA.
3.2. Customer shall take all such steps as are necessary to ensure the
reliability of Personnel who have access to Personal Data.
3.3. Customer shall ensure that access to the Personal Data is limited to:
(a) Personnel who need access for the purpose of exercising Customer’s
rights or performing Customer’s obligations under this DPA; and (b) in the
case of access by any Personnel, such part or parts of the Personal Data as
is strictly necessary for performance of such Personnel's duties.
3.4. Customer shall ensure that Personnel: (a) are informed of and maintain
the confidential nature of the Personal Data; (b) have undertaken training
in the Data Protection Laws relating to handling of Personal Data; and (c)
are aware of TapResearch’s duties and obligations under the Data Protection
Laws and this DPA.
4.1. Customer shall not appoint a sub-processor without the prior written
consent of TapResearch.
4.2. Customer shall ensure that each of its sub-processors are: (a) aware
of this DPA; and (b) bound by contractual obligations with respect to the
Personal Data which are the same as, or no lesser than, those contained in
4.3. Customer shall be liable for the acts and omissions of its
sub-processors to the same extent that Customer would be if performing the
Processing directly under this DPA.
DATA SUBJECT RIGHTS
5.1. To the extent that TapResearch, in its provision of the Services, does
not have the ability to report the content of, correct, amend, block, or
delete Personal Data as required by the Data Protection Laws, Customer
shall, and shall ensure that its sub-processors shall, promptly comply
within 5 calendar days with a request from TapResearch to facilitate such
actions at no additional cost to TapResearch.
5.2. If Customer receives a complaint, notice or communication which
relates directly or indirectly to the Processing of Personal Data, it shall
immediately, and in any event within 5 calendar days, notify TapResearch
and shall provide full co-operation and assistance to enable TapResearch to
address the request. TapResearch shall not respond to any such compliant,
notice or communication without the prior written consent of TapResearch.
5.3. If TapResearch receives any complaint, notice or communication from a
third party which relates directly or indirectly to the Processing of
Personal Data by Customer and/or it sub-processors, Customer shall, at its
expense, provide, or shall procure the provision of, full co-operation and
assistance to TapResearch in relation to any such request.
6.1. 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 data subjects, Customer shall implement
appropriate technical and organizational measures and perform regular
security backups of Personal Data to ensure a level of security and
integrity appropriate to the risk of unauthorized, accidental or
unlawful Processing, access, loss, disclosure or destruction of
Personal Data (a “Security Breach”).
6.2. Customer shall promptly and in any event within 24 hours inform
TapResearch of any actual or suspected Security Breach and any breach
of its security obligations contained in paragraph 6.1.
6.3. To the extent that a Security Breach is caused, or is otherwise
suffered, by Customer or its sub-processor(s), Customer shall, at its
expense, investigate, identify and remediate the Security Breach as soon as
possible, and within five (5) business days.
6.4. Customer shall, at its expense, provide full co-operation and
assistance and all information as may be reasonably requested by
TapResearch in relation to the Security Breach.
6.5. Customer shall consult with TapResearch in advance regarding any
public statements to be made relating to the Security Breach which directly
references TapResearch. Unless required to do so by law, Customer shall not
make any public statement relating to the Security Breach which directly
references TapResearch without the prior written consent of TapResearch.
7.1. Customer shall maintain a record of the Processing activities carried
out on behalf of TapResearch which shall, at a minimum, contain the
following information: (a) a description of the Personal Data Processed by
Customer, including the types of Personal Data, the categories of data
subjects and the Processing activities carried out on behalf of
TapResearch; (b) details of any transfers of Personal Data to a third
country and the legal basis for the legitimate transfer of the same under
the Data Protection Laws; (c) a general description of the technical and
organization security measures used to protect Personal Data in accordance
with paragraph 5.1; and (d) the name and contact details of the Customer’s
Data Protection Officer, Chief Privacy Officer, Chief Information Security
Officer or similarly qualified TapResearch Personnel.
7.2. Customer shall promptly provide such records on request from
8.1. Personal Data shall only be transferred to locations as may be
required or approved by TapResearch from time to time; in any event,
Personal Data shall not be transferred outside of the United States without
TapResearch’s prior written consent. If such transfers are
required, Customer shall give TapResearch notice pursuant to paragraph 13
of this DPA.
9.1. On reasonable notice, Customer shall allow TapResearch and any
auditors of or other advisers to TapResearch to access any Customer
premises, systems, Personnel and relevant records as may be reasonably
required in order to undertake verifications of compliance with the
provisions of this DPA.
9.2. Customer shall provide TapResearch (and its auditors and other
advisers) with all reasonable co-operation, access and assistance in
relation to each audit.
10.1. Customer shall Process the Personal Data in compliance with the Data
11.1. This DPA constitutes the entire agreement between the parties and
supersedes and extinguishes all previous agreements, promises, assurances,
warranties, representations and understandings between them, whether
written or oral, relating to its subject matter. In the event of a conflict
between one or more terms in this DPA and anything in the Agreement between
the parties, the language in the Agreement shall prevail.
11.2. Each party agrees that it shall have no remedies in respect of any
statement, representation, assurance or warranty (whether made innocently
or negligently) that is not set out in this DPA.
JURSIDCTION AND GOVERNING LAW
12.1. The validity, construction and performance of this DPA (and any
claim, dispute or matter arising under or in connection with it or its
enforceability) and any non-contractual obligations (including negligence)
arising out of or in connection with it, shall be governed and construed in
accordance with the laws as stated in the other Agreement between the
12.2. Each party irrevocably submits to the exclusive jurisdiction of the
courts as stated in the Agreement between the parties over any claim,
dispute or matter arising under or in connection with this DPA or its
enforceability or the legal relationships established by this DPA
(including non-contractual disputes or claims).
All notice to TapResearch under this DPA (except the Security Breach notice
described in paragraph 6.2) shall be made in accordance with the Agreement
between the parties.