Our Purpose – Building Smart Mobile Experiences
QWASI enables our Users to create IOT touch points across QR, NFC, WIFI, AR, SMS, EMAIL, WEB, SOCIAL to easily track attribution to users points of origin and analyze their engagement with site data. Our Services help you translate your engagement into, data and actionable insights for making data-informed decisions – without the help of developers and analysts.
Our Software – The QWASI IOT Management Platform
Our software enables asset management with our proprietary IOT MANAGEMENT platform, mobile experience management with QWASI proprietary CMS, as well as user engagement in our CRM. Our platform also gives the capability to create loyalty programs, virtual events, gamified experiences, as well as other capabilities generally detailed specifically in an addendum process. We offer our software as a monthly or annual license with custom experiences created as a $5,000 fee unless scope of work or an addendum notes otherwise.
Services Included in Software License – The QWASI IOT Management Platform
- Unlimited Asset Management
- Unlimited Page Management
- Unlimited Form Management
- Standard Support
These Terms constitute a binding and enforceable legal contract between QWASI Ltd. (“QWASI” or “We”) and you (“User” or “you”) in relation to the use of any QWASI Services – so please read them carefully.
Subject to these Terms, we grant to you a limited, non-exclusive and non-transferable license to use our Services for your own use and not for resale or further distribution. Your right to use QWASI is limited by all terms and conditions set forth in these Terms. Except for your pre-existing rights and this license granted to you, QWASI and its licensors retain all right, title and interest in and to our Services. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, you will not authorize any third party to modify, reproduce, translate, decompile, disassemble, reverse engineer or create derivative works of QWASI. You are not authorized to rent, lease or sublicense access to any of our Services; or circumvent or disable any security or technological features or measures of our Services.
In order to access and use certain sections and features of our Services, you must sign up to be a QWASI customer, which will them allow you to setup an account with QWASI (“User Account”).
All actions taken in your account and all activities occurring will be deemed to be on your behalf and in your name, and are your responsibility. We strongly encourage you to keep the login credentials of your User Account confidential and allow such access only to people you trust. The account information you provide us must be your own (or your company’s), and be accurate and complete, as we may use it to identify the actual owner of the User Account submitted to us.
In case a User Account is disputed, we reserve the right to determine the ownership of such User Account based on our reasonable judgment.
Access to the Services
QWASI does not provide the equipment to access our Services. You are held responsible for all fees charged by third parties related to your access and use of our Services (e.g., charges by Internet service providers).
QWASI reserves the right to modify or discontinue, temporarily or permanently, all or any portion of our services without notice. QWASI will not be liable to you or to any third party for any modification, suspension, or discontinuance of all or any portion of our Services.
QWASI also reserves the right, in our sole discretion, to reject, refuse service, or delete any User data, and to restrict, suspend, or terminate your access to our services at any time, for any reason, without prior notice, and without liability.
You shall use our Services only in compliance with all applicable laws, including any applicable data protection and privacy laws, and the terms of this Agreement. You shall not and shall not permit or authorize any third party to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to our Services, use our Services for the benefit of any third party, or make our Services available to anyone other than its Users; (ii) use our Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send or store Sensitive Information, infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) circumvent or disable any digital rights management, usage rules, or other security features of the Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on our Services, or any portion thereof; (v) access or use our Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Services; or (vi) use our Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Services.
“Sensitive Information” shall mean (a) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including, but without limitation, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data or health data; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real time geo-location data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); export-controlled information for which you have not obtained all required export licenses or government approvals; or (h) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.
Subscription Plans are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term, or as otherwise stated in the Order Form, unless you choose not to renew such plan by writing to QWASI or QWASI terminates the Agreement. You must provide current, complete and accurate billing and credit card information, and agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which you shall be responsible to pay.
Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for payment of all Taxes associated with its purchases hereunder, and any related penalties and interest. If your payment fails, and after we have reached out to you, QWASI reserves the right to suspend or terminate access to the Application Services and delete the User Content.
QWASI is designed to enable you to learn more about how your visitors (your “Visitors”) use your website or product by giving you the ability to collect information based on their interaction. QWASI does this in part using a tracking code placed on your User’s device from your server. Some information is automatically collected from or about your Visitor when you use our Services. If you integrate the official QWASI tracking code in your product or website it may by default collect Visitor data including but not limited to: the time of an event, the elements a Visitor has interacted with, metadata and other details about these elements, and how a Visitor came to your site.
We collect, store, and use your Visitor data on our servers to provide you with the ability to better maintain and improve your Services. We may also use data in an aggregated form for our own purposes.
Our Services transfer data to servers that store User data in the U.S. and outside the U.S. We only share User information with others under special circumstances as follows
- To comply with laws or to respond to lawful requests and legal process (provided that QWASI will endeavor to notify you if QWASI has received a lawful request for your information);
- In an emergency, including to protect the personal safety of any person; And for the purposes of a business deal (or negotiation of a business deal) involving sale or transfer of all or a part of our business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding).
QWASI provides you with access to your Visitor data. We also take commercially reasonable steps to safeguard Visitor and User data.
QWASI may also collect registration and other information about you as our customer.
You may elect not to renew your subscription by requesting QWASI to deactivate or delete your User Account at least 90 days prior to the start of a renewal subscription term. Your obligation to pay charges and fees accrued up to the date of termination shall survive any termination of this Agreement.
QWASI may also terminate your User Account with or without cause at any time. In that case, QWASI shall notify you via email to your registered email account. We may immediately terminate this Agreement if you: (i) terminate your business activities or become insolvent; (ii) admit in writing to the inability to pay your debts as they mature; (iii) make an assignment for the benefit of creditors; (iv) become subject to direct control of a trustee, receiver or similar authority; or (v) do not pay the fees when due in accordance with your Subscription Plan.
The Application Services or Documentation may display, contain links to, or connect with third-party products, services, and websites (collectively, “Third-Party Services”). Any statements, services, offers, or other information that constitutes part of the Third-Party Services made available by other users or other third parties on the Application Services or QWASI Sites, or which are accessible through or may be located using the Application Services are those of the respective authors or producers and not of QWASI or its stockholders, directors, officers, employees, agents, or representatives. QWASI does not control Third-Party Services and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Third-Party Services are governed solely by the terms and conditions of those Third-Party Services and QWASI is not responsible for the performance of and does not endorse any Third-Party Services or any information or materials advertised in any Third-Party Services. QWASI is not responsible or liable, directly or indirectly, for any damage or loss caused to User by User’s use of or reliance on any Third-Party Services. It is User’s responsibility to evaluate the information, opinion, advice, or other services available on and through the Application Services.
QWASI does not provide the equipment required to access the Application Services. User is responsible for all fees charged by third parties related to User’s access and use of the Application Services (e.g., charges by Internet service providers).
When you visit QWASI’s website or send emails to us, you are communicating with QWASI electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on this website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
QWASI may provide you with a mechanism to provide feedback, suggestions, and ideas (“Feedback”). You agree that we may, in our sole discretion, use your Feedback to us in any way, including in future enhancements and modifications to our Services. You hereby grant to us and our assigns a perpetual, worldwide, fully transferable, sublicensable, irrevocable, royalty-free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to you or any third party.
You are solely responsible for any content and other material that you submit, publish, transmit, or display on, through, or with QWASI.
The QWASI logo, and any other product or service name or slogan displayed on the Services are trademarks of QWASI and may not be copied, imitated or used, in whole or in part, without the prior written permission of QWASI. You shall not use any metatags or any other “hidden text” utilizing QWASI or any other name, trademark or product or service name of QWASI without prior written permission. In addition, the look and feel of QWASI, including all page headers, custom graphics, button icons, and scripts, is the service mark, trademark and/or trade dress of QWASI and may not be copied, imitated or used, in whole or in part, without prior written permission.
QWASI reserves the right, at its sole discretion, to modify or replace any part of this Agreement. You will be held responsible to check this Agreement periodically for changes. Your continued use of or access to QWASI following the posting of any changes to this Agreement constitutes acceptance of those changes.
QWASI may also offer new services in the future and/or features through the Services (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
Warranties; Disclaimer of Warranties
QWASI warrants you that our Services will perform materially in accordance with the documentation that accompanies or is available for the Services. QWASI’s sole liability and User’s exclusive right and remedy for a breach of the foregoing warranty is for QWASI to correct or reperform the nonconforming Services.
You warrant that you own or obtained all necessary rights, title, and interest, and obtained all necessary consents, to transfer the User Data to QWASI and its data center provider(s) for the purpose of processing such Customer Data in accordance with this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF THE SERVICES PROVIDED BY QWASI INCLUDING BUT NOT LIMITED TO THE SERVICES, ANY PROFESSIONAL SERVICES AND CUSTOMER SUPPORT SERVICES IS AT CUSTOMERS’ SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. QWASI AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. QWASI DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CUSTOMER RELIES ON SUCH SERVICES AT CUSTOMER’S OWN RISK. NEITHER DOES QWASI GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND USERS USES CUSTOM REPORTING FEATURES AT USER’S OWN RISK. ANY MATERIAL THAT USER ACCESSES OR OBTAINS THROUGH QWASI’S SERVICES, INCLUDING USER CONTENT, IS DONE AT USER’S OWN DISCRETION AND RISK AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM QWASI OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
QWASI WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF OUR SERVICES AND SERVICE CONTENT. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF US AND OUR SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES AND SERVICE CONTENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT YOU HAVE PAID TO US FOR YOUR USE OF THE SERVICES AND SERVICE CONTENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You will defend, indemnify and hold harmless QWASI from any costs, damages, expenses, and liability caused by your use of our Services, User’s violation of this Agreement, User Content, or User’s violation of any rights of a third party through the use of our Services.
If you have any questions or concerns about QWASI’s services or these Terms, you may contact us by email at [email protected]
Updated June 1, 2021
These terms bind Qwasi Media LLC acting as Agent for the Qwasi and Quantum Brands in the USA, and any CUSTOMER utilizing their Services.
THE CUSTOMER wishes to engage QWASI to (i) develop, supply and implement solutions (ii) thereafter make available Subscription Services (as defined below).
In consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
Capitalized terms used in this Agreement shall have their meanings specified below or elsewhere in this Agreement.
1.1 “Affiliate” means, in relation to any company, a company or entity in which that company owns or is interested in more than 20% of the voting share capital (or equivalent rights of ownership).
1.2 “Confidential Information” means any information, whether oral, written, electronic, or in any other format, and whether technical or business in nature, regarding this Agreement, QWASIs products or business, including the Subscription Services, information regarding a Party’s products, services, software, intellectual property, pricing, marketing and business plans, other information not generally known to the public and any other information received under circumstances reasonably interpreted as imposing an obligation of confidentiality; provided that, “Confidential Information” shall not include any of such information which: (a) was publicly available at the time of disclosure by the disclosing Party; (b) became publicly available after disclosure through no fault of the receiving Party; (c) was known to the receiving Party prior to disclosure by the disclosing Party; or (d) was rightfully acquired by the receiving Party after disclosure by the disclosing Party from a third party who was lawfully in possession of the information and was under no legal duty to the disclosing Party to maintain the confidentiality of the information.
1.3 “Contract” means any individual contract entered into by QWASI and any THE CUSTOMER in the manner described in Section 2.1.
1.4 “Days” means calendar days.
1.5 “Documentation” means the documents, agreements, user manuals and any technical publications and specifications, as applicable, made generally available by QWASI to THE CUSTOMER relating to the operation and use of the Subscription Services.
1.6 “End Users” means THE CUSTOMER’s employees who are authorized to use the Subscription Services.
1.7 “Fees” has the meaning set out in Section 5.1.
1.8 “Intellectual Property Rights” means all intellectual property rights, howsoever arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, and any applications for the protection or registration of such rights and all renewals, and extensions thereof throughout the world.
1.9 “Marks” means any trademarks, service marks, or trade names that either party may designate from time-to-time.
1.10 “Project” means the setup of the Software as a Service Application, THE CUSTOMER’s use of the Subscription Services, or QWASIs provision of Professional Services as set out in clause 4.
1.11 “THE CUSTOMER Materials” means the following materials and documents provided by THE CUSTOMER to QWASI to enable QWASI to deliver the Project and provide the Subscription Services: [insert list].
1.12 “Subscription Services” means QWASIs provision of Subscription Services (as agreed), hosted by QWASI or its agents and made generally available for remote access and use by THE CUSTOMER and by its End Users under this Agreement, and Support, (as set out in Exhibit A), and as set out in the Contract.
1.13 “Subsidiary” means, in relation to any company, a company or entity in which that company owns or is interested in more than 50% of the voting share capital (or equivalent rights of ownership).
1.14 “User Data” means all data collected either by THE CUSTOMER or QWASI relating to THE CUSTOMER or its End Users during their use of the Subscription Services.
- FORMATION OF CONTRACTS
2.1 If THE CUSTOMER wishes to engage QWASI in relation to further services and to provide additional Subscription Services, QWASI and THE CUSTOMER will discuss and if agreed draw up and execute a change order form.
2.2 Fees and Pricing as agreed shall apply to the change order form, unless specifically agreed otherwise in a specific change order form.
2.3 Once signed by QWASI and THE CUSTOMER, the change order form will be deemed a Contract.
2.4 If there is a breach of any Contract by THE CUSTOMER,THE CUSTOMER shall indemnify QWASI and keep QWASI indemnified against all direct losses suffered by QWASI so that it is in no worse position than it would have been in had there been no such breach.
- SUBSCRIPTION SERVICES License and Restrictions
3.1 License to Subscription Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees agreed in the Contract, QWASI hereby grants THE CUSTOMER a limited, non-transferable, non-sublicensable, non-exclusive license, during the Term, to use the Subscription Services solely for THE CUSTOMER’s business purposes.
3.2 Limitations on License. THE CUSTOMER shall not: (a) modify or make derivative works based on the Subscription Services; (b) use the Subscription Services other than as permitted under this Agreement or the Contract; (c) remove any product identification or other notices contained in the Subscription Services; or (d) reverse engineer the Subscription Services for any reason or access the Subscription Services to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics to those of the Subscription Services, or (iii) copy any ideas, features, functions, or graphics of the Subscription Services. THE CUSTOMER and QWASI agree this clause shall survive termination of this Agreement for any reason.
3.3 Data Licenses. All User Data processed through the Subscription Services by THE CUSTOMER remains the sole property of THE CUSTOMER and its End Users (as applicable). THE CUSTOMER grants QWASI the right to use the User Data as necessary to perform its obligations under this Agreement and for no other purpose. For the purposes of this Agreement, QWASI shall process the User Data which constitutes Personal Data on behalf of THE CUSTOMER, in accordance with the terms and conditions of Exhibit B. (“Personal data” having the meaning as set out therein.)
3.4 Protection of Proprietary Rights.
3.4.1 THE CUSTOMER acknowledges and agrees that the Subscription Services is a commercially valuable asset of QWASI, the development of which required the investment of substantial time, effort, and cost by QWASI. THE CUSTOMER further acknowledges and agrees that the Subscription Services contains trade secrets of QWASI and that it is QWASIs Confidential Information and is proprietary to QWASI. Accordingly, THE CUSTOMER hereby agrees that it and its End Users will use reasonable care to maintain the confidentiality of the Subscription Services. THE CUSTOMER and End Users shall comply with the obligations in this Section 3 (Subscription Services License and Restrictions) including limiting the use of and access to the Subscription Services only to THE CUSTOMER’s End Users.
3.4.2 THE CUSTOMER shall retain the Intellectual Property Rights in the The Customer Materials and THE CUSTOMER grants QWASI, for the Term of this Agreement, a non-exclusive, personal, royalty-free licence to use the THE CUSTOMER Materials to carry out its obligations in relation to the Subscription Services.
3.5 Unauthorized Access. THE CUSTOMER shall promptly notify QWASI of any unauthorized use, copying, or disclosure of the Subscription Services of which it becomes, or of which ought reasonably to have been, aware and further agrees to take such commercially reasonable measures necessary to end and prevent any such further use, copying, and disclosure.
3.6 Third Party Licences. Each Party shall maintain all licences, consents and permissions necessary in relation to its Intellectual Property Rights forming part of the Subscription Services. THE CUSTOMER shall provide or shall procure the provision of any necessary third party licences to the extent required for QWASI to deliver the Project and the Subscription Services. QWASI grants no Intellectual Property Rights or other rights in connection with any third party licences.
3.7 Breach of License. QWASI Inc., in its sole and exclusive discretion, may immediately terminate a Contract and this Agreement if THE CUSTOMER, or any of its End Users, violate the license grants made in this Agreement or under any Contract, or violates any provision of this Section 3 (Subscription Services License and Restrictions). Each Party acknowledges and agrees that any breach of license grants made herein or any provision of this Section 3 (Subscription Services License and Restrictions) by THE CUSTOMER or its End Users, shall cause immediate and irreparable injury to QWASI, and in the event of such breach, QWASI shall be entitled to seek and obtain injunctive relief, without bond or other security, and all other remedies available at law and in equity.
3.8 License to THE CUSTOMER Trademarks. THE CUSTOMER hereby grants to QWASI a limited, non-transferable, non-sublicensable, non-exclusive license, during the Term, to use, reproduce, display, and distribute the THE CUSTOMER Marks in connection with QWASIs delivery of the Subscription Services. THE CUSTOMER further grants QWASI the right to display the THE CUSTOMER Marks on its Website and marketing materials. QWASI shall comply with THE CUSTOMER’s then-current policies regarding the use of THE CUSTOMER’s Marks. QWASI acknowledges and agrees that all Intellectual Property Rights in THE CUSTOMER Marks belong to and shall continue to belong to THE CUSTOMER (or its licensors or other third party owners), and QWASI shall have no rights in or to THE CUSTOMER Marks other than as specifically set forth in this Agreement.
- PROFESSIONAL SERVICES
4.1 Professional Services. Professional services are delivered in the form of Project(s), agreed in a Contract, and categorized as either Custom Development Services or Account Management Services. The category of services must be clearly specified by QWASI in Contract.
4.1.1 Custom Development. If THE CUSTOMER requests custom development work or customizations of the Subscription Services (“Custom Development Services”), THE CUSTOMER shall notify QWASI in writing. If, in QWASIs sole and exclusive discretion, QWASI agrees to provide the Custom Development Services, such Custom Development Services shall be quoted to THE CUSTOMER using an agreed Professional Services rate.
4.1.2 Account Management. If THE CUSTOMER requests project management, sales support, short code provisioning assistance, integration advice, best practice advice or other consultancy services related to the adoption or deployment of the Subscription Services (“Account Management Services”), THE CUSTOMER shall notify QWASI in writing. If, in QWASI’s sole and exclusive discretion, QWASI agrees to provide the Professional Services, such Account Management Services shall be quoted to THE CUSTOMER using the agreed Professional Services rates. Additionally, should THE CUSTOMER request this, QWASI, at its discretion, will allocate Professional Services resources to THE CUSTOMER on an ongoing basis in return for a monthly retainer.
4.1.3 Documentation and Initial Training. QWASI shall provide THE CUSTOMER with the Documentation and QWASI shall also provide reasonable assistance and initial training subject to such fees as are agreed.
- FEES AND Payment
5.1 Fees. The pricing and fees for Subscription Services and Professional Services shall be as set out in each Contract (collectively the “Fees”).
5.2 Billing. Unless agreed otherwise, Fees shall be invoiced monthly in advance.
5.3 Payment Terms. Save as agreed separately, all amounts to be paid by THE CUSTOMER hereunder shall be due and payable thirty (30) Days after the THE CUSTOMER’s receipt of the invoice thereof. All payments not made by THE CUSTOMER when due shall be subject to late charges of the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. Any failure to pay will constitute a material breach of this Agreement by THE CUSTOMER, if not cured within thirty (30) days of QWASI serving notice of such failure.
5.4 Taxes. THE CUSTOMER shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by QWASI’s net income, unless THE CUSTOMER is exempt from the payment of such taxes and provides QWASI with sufficient evidence of such exemption.
5.5 Suspension. Without limiting QWASI’s termination rights, QWASI shall have the right to suspend the Subscription Services in the event THE CUSTOMER fails to pay any Fees in full when due.
6.1 Confidentiality Obligations. The Parties agree to hold each other’s Confidential Information in strict confidence. The Parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as specified in this Agreement. Each Party agrees to take all reasonable steps to ensure that Confidential Information of either Party is not disclosed or distributed by its employees, agents, or consultants in violation of the provisions of this Agreement. Each Party’s Confidential Information shall remain the sole and exclusive property of that Party. Each Party acknowledges that any use or disclosure of the other Party’s Confidential Information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the non-using or non-disclosing party. Accordingly, each Party hereby agrees that, in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-using or non-disclosing Party may be entitled to equitable relief as granted by any appropriate judicial body.
6.2 Duration. The obligations under this Section 6 (Confidentiality) shall terminate three (3) years following expiration or termination of this Agreement (except with regard to trade secrets, which shall remain confidential for so long as the information remains protected as a trade secret).
- Term and Termination
7.1 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for three (3) years (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either Party provides notice of termination or non-renewal no less than ninety (90) days prior to expiration of the then-current term. The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.”
7.2 Termination for Breach. Either Party may terminate this Agreement or any Contract with thirty (30) Days’ prior written notice if the other Party has failed to comply with any material term, condition, or obligation of this Agreement or the Contract (as the case may be), and such Party subsequently has failed to remedy the default within thirty (30) Days after such notice by the non-defaulting Party.
7.3 Termination for Insolvency. If QWASI believes in good faith that THE CUSTOMER’s ability to make payments may be impaired, or if THE CUSTOMER fails to pay any invoice when due and does not make such payment within ten (10) Days after receipt of notice from QWASI of such failure, then QWASI may, in its sole discretion, either: (a) suspend the Subscription Services until such payment is made; or (b) terminate the Subscription Services. In either event, THE CUSTOMER shall remain liable to pay all Fees under this Agreement.
7.4 Effect of Termination. Upon the termination of this Agreement for any reason all underlying Contracts shall terminate with effect from the same date. Each Party to the Agreement or Contract respectively shall immediately cease use of all Confidential Information and Intellectual Property Rights belonging to the other Party and shall irretrievably delete and/or remove such items from all computer hardware and storage media, including backups. Additionally, following termination of this Agreement, THE CUSTOMER shall immediately cease use of the Subscription Services.
7.5 Survival. Notwithstanding any provisions contained in this Agreement to the contrary, in addition to any provisions that by their express terms survive expiration and termination of this Agreement, or by their nature may be reasonably inferred to have been intended to survive expiration and termination of this Agreement or any Contract, the following provisions shall survive expiration and termination of this Agreement or any Contract: 1 (Definitions), 3.3 (Protection of Proprietary Rights), 6 (Confidentiality), 7.4 (Effect of Termination), 7.5 (Survival), 9 (Indemnification), 10 (Limitation of Liability) and 11 (General).
8.1 Limited Warranty. Each Party represents and warrants that (a) it has the authority to enter into this Agreement and to grant the rights and licenses provided herein, and that by entering into this Agreement such Party is not in violation of any previous agreement between such Party and any third party, and (b) it will comply with all laws and regulations applicable to the obligations assumed under this Agreement.
8.2 QWASI warrants that it shall (a) perform the Subscription Services with reasonable skill, care and diligence, save that it shall have no responsibility for the use or consequences of use of third party software or data which shall be governed solely by the licence agreements in place between THE CUSTOMER and the relevant third party (b) in a timely and efficient manner, (c) using appropriately qualified and experienced staff, and (d) in accordance with Exhibit B.
THE CUSTOMER warrants that : (a) at all times only the End Users shall use the Subscription Services and that such use shall be in accordance with the terms of this Agreement; (b) it shall keep a list of End Users and shall notify QWASI within 3 business days if any updates to any list of End Users are made or required, including when End Users cease to be employees such that they are no longer entitled to be End Users; (c) it shall be liable for the acts and omissions of the End Users as if they were its own; (d) it shall procure that each End User is aware of and complies with the relevant obligations and restrictions imposed on THE CUSTOMER under this Agreement, including restrictions in relation to confidential information; (e) at all times during the Term of this Agreement, it shall maintain Professional Indemnity & Commercial General Liability coverage of at least £2,000,000 per occurrence with a carrier having A M Best’s rating of A- or above. In addition, such policy shall include a waiver of subrogation. THE CUSTOMER’s insurance shall include QWASI as an additional insured. Within thirty (30) days of execution of this Agreement or upon reasonable written request, THE CUSTOMER shall provide to QWASI certificates of insurance evidencing the above specifications.
8.3 No Other Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 8 (WARRANTIES), QWASI DOES NOT MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICES (INCLUDING ANY WARRANTY AS TO TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE), NOR WITH RESPECT TO ANY OTHER MATTER SET FORTH IN THIS AGREEMENT.
9.1 Mutual Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other Party (the “Indemnified Party”) from and against any and all causes of action, claims, damages, liabilities, losses, judgments, and costs (including reasonable legal fees and expenses) (collectively, “Claims”) by third parties arising out of or relating to: (a) the Indemnifying Party’s gross negligence or willful misconduct; (b) any breach of this Agreement by the Indemnifying Party; (c) the Indemnifying Party’s use of any of the Indemnified Party’s Marks or Intellectual Property Rights not in compliance with the terms hereof; (d) any third-party claims that any of the Indemnifying Party’s Marks or Intellectual Property Rights infringes on any Intellectual Property Rights of such third party.
9.2 Indemnification Procedure. The Parties’ indemnification obligations are conditioned upon: (a) the Indemnified Party promptly notifying the Indemnifying Party of any Claim for which indemnification is sought, provided, that any failure or delay to provide such notice shall not constitute a breach of this Agreement and shall not excuse the Indemnifying Party from its obligations under this Section 9 (Indemnification), except to the extent (if any) that the Indemnifying Party is prejudiced by such failure or delay; (b) the Indemnified Party cooperating with the Indemnifying Party in its defense or settlement of any such Claim; (c) the Indemnifying Party completely controlling the defense or settlement of any such Claim; and (d) the Indemnified Party using commercially reasonable efforts to mitigate the damages, if applicable. The Indemnified Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The foregoing notwithstanding, the Indemnifying Party shall not finalize any settlement that prejudices or materially, adversely affects the Indemnified Party without the prior written consent of the Indemnified Party.
- Limitation of Liability
10.1 Disclaimer of Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST REVENUES, LOST BUSINESS, LOST DATA, COSTS OF RECREATING LOST DATA, OR LOSS OF USE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OR COSTS RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF EITHER OR BOTH OF THEM KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
10.2 Cap on Direct Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID BY THE CUSTOMER TO QWASI IN THE TWELVE (12) FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
10.3 Disclaimer of Liability for Third Party Actions. QWASI SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY ACTS OR OMMISSIONS OR FAILURES GENERALLY ON THE PART OF THE CUSTOMER, WHERE SUCH ACT, OMMISSION OR FAILURE RESULTS IN THE CUSTOMER SUFFERING A LOSS OF BUSINESS, CONTRACTS, CUSTOMERS, PROFIT, REVENUE, DATA, REPUTATION, OR GOODWILL.
10.4 Exclusions. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE LIMITATIONS UPON THE TYPES AND AMOUNTS OF EACH PARTY’S LIABILITY, AND THE EXCLUSIONS OF CERTAIN TYPES OF DAMAGES, SET FORTH IN THIS SECTION 10 (LIMITATION OF LIABILITY), SHALL NOT APPLY TO THE FOLLOWING: (A) DAMAGES RESULTING FROM THE CUSTOMER’S BREACH OF SECTION 3 (LICENSE GRANTS AND RESTRICTIONS); (B) DAMAGES RESULTING FROM A BREACH OF SECTION 6 (CONFIDENTIALITY); OR (C) CLAIMS SUBJECT TO OR AMOUNTS PAYABLE PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER (D) NOTHING IN THIS AGREEMENT SHALL EXCLUDE CLAIMS FOR DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S NEGLIGENCE.
10.5 Compliance with Laws and Export. In connection with THE CUSTOMER’s access to and use of the Subscription Services, THE CUSTOMER and QWASI are responsible for complying with all laws, regulations and policies of all relevant jurisdictions which in the case of this Agreement shall be England and Wales. Each Party shall defend, indemnify and hold harmless the other from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including legal fees and expenses) arising out of any claim the Subscription Services was accessed, used, exported, or otherwise shipped or transported by the other party in violation of applicable laws, rules, and regulations.
11.1 Nature of Relationship. In entering this Agreement, THE CUSTOMER does so as an independent party and not as an agent, partner, or joint venturer of QUANTUM_H. THE CUSTOMER does not have any right or authority, nor shall THE CUSTOMER hold itself out as having any right or authority, to assume, create, or enter into any contract, or obligation, either express or implied, on behalf of, in the name of, or binding upon, QWASI.
11.2 Non-Exclusivity. The agreement is non-exclusive.
11.3 Compliance with Laws. The Parties shall comply with all applicable laws and regulations, including all export laws and regulations of England and Wales.
11.4 Construction. The section headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the construction or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”
11.5 Governing Law; Venue; Severability. This Agreement and any Contract shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement. In the event that one or more of the provisions herein shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforcement of the remaining provisions shall not be affected or impaired.
11.6 Assignment. THE CUSTOMER shall not assign this Agreement, any Contract or any rights or obligations thereunder without the express written consent of QWASI save as described in this Agreement. Any assignment or transfer in violation of the foregoing will be null and void. QWASI reserves the right to assign this Agreement and any Contract to any Affiliate or other entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of QWASI. Subject to all of the terms and conditions hereof, this Agreement and each Contract inures to the benefit of and is binding upon the Parties thereto and their successors and assigns.
11.7 Waiver. The failure to enforce or the waiver by either Party of one default or breach of the other Party shall not be considered to be a waiver of any subsequent default or breach.
11.8 Notices. All notices required or permitted under this Agreement or any Contract shall be in writing and delivered personally or sent by facsimile or registered mail to the Parties’ respective addresses set forth in this Agreement or the relevant Contract (as the case may be). All notices shall be deemed effective upon personal delivery; or on the business day after sending by telephonic facsimile; or on the second business day after sending by registered mail.
11.9 Force Majeure. Except with regard to payment obligations, either Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement or any Contract to the extent the delays or failures result from causes beyond the reasonable control of the Party, including default of subcontractors or suppliers, failures of third party software, default of third party vendors, acts of God or of the public enemy, governmental actions, labor shortages or strikes, communications or utility interruption or failure, fire, flood, epidemic, and freight embargoes. However, to be excused from delay or failure to perform, the Party must act diligently to remedy the cause of the delay or failure.
11.10 Remedy. The rights and remedies of the Parties will be cumulative (and not alternative). In the event of any litigation between the Parties relating to this Agreement or any Contract, the prevailing Party will be entitled to recover its reasonable legal fees, expert witness fees, and court costs from the other Party.
11.11 Entire Agreement. This Agreement, each Exhibit hereto and the Contract, together constitute the entire understanding of the Parties with respect to the subject matter thereof, and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement or any Contract shall be binding on either Party unless it is in writing and signed by both Parties. In the event of any conflict or inconsistency between this Agreement and any Exhibit, the terms and conditions of this Agreement shall prevail.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which taken together shall constitute one and the same Agreement
QWASI maintains a support team (“QWASI Support Services”) to provide support to CUSTOMER during the Term. QWASI Support Services will coordinate incident isolation, testing and repair work within QWASI and, as applicable, with QWASIs third party providers, as set forth in this Exhibit A (Support). Support does not include training or professional services, which are provided via a separate Change Order Form on a time and materials basis at the rates set out in the Agreement.
- Reporting Errors to QWASI
If CUSTOMER discovers an error within the Subscription Services that prevents the Subscription Services from operating in material conformity with its Documentation (an “Error”), CUSTOMER shall report the Error to QWASI (each, an “Error Report”) via Zendesk, the QWASI Support online ticketing tool (qwasiinc.zendesk.com) or telephone number (877-747-9274) or email address ([email protected]) during QWASIs normal support hours (which are currently 9am – 9pm EST (“Support Hours”). Additionally, to the extent reasonably possible, QWASI Support Services will proactively inform CUSTOMER when QWASI Support Services becomes aware of an Error or other issue or condition arises that may disrupt use of the Subscription Services and/or cause potential system anomalies. The severity classification of each Error will be assigned by QWASI at the time the Error is reported to QWASI.
During the incident isolation and troubleshooting process, QWASI Support Services will provide an initial report to CUSTOMER, and follow-up updates to CUSTOMER, in accordance with the Severity Level of the Error, as set forth below. All communication will be in the English language.
- Certification, Training and Support
- System Maintenance
In order to maintain performance of the Subscription Services, QWASI performs maintenance during scheduled maintenance windows, during which time specific functionality within the Subscription Services may be suspended during the maintenance period. QWASI will use commercially reasonable efforts to notify CUSTOMER in advance of scheduled maintenance that may adversely impact use of the Subscription Services. Additionally, QWASI may need to perform emergency maintenance, including security patch installation or hardware replacement. QWASI will not be able to provide advanced notice in case of emergency maintenance. Loss of availability of the Subscription Services due to scheduled maintenance and/or emergency maintenance shall not constitute Downtime.
- Customer Contact
CUSTOMER will designate up to two (2) employees as its primary contacts with QWASI (“CUSTOMER Contacts”). CUSTOMER Contacts must (i) be able to provide written descriptions of reported problems, together with reasonable supporting data, and (ii) have the relevant technical knowledge necessary to assist QWASI in performing the Support Services contemplated under this Exhibit A.
Data Processing Annexure
- In this Personal Data Processing Annexure (the Annexure) the following words and expressions shall have the following meanings unless the context otherwise requires:
|“Appropriate Technical and Organisational Measures”||shall be interpreted in accordance with the Privacy Laws.|
|“CUSTOMER Personal Data”||means any Personal Data, the Processing of which is subject to Privacy Laws, that is controlled by CUSTOMER and its End Users (where applicable) which QWASI Processes in the course of providing the Subscription Services under the Agreement, wherever the Processing takes place.|
|“Data Controller”||shall be interpreted in accordance with the Privacy Laws.|
|“Data Processor”||shall be interpreted in accordance with the Privacy Laws.|
|“Data Subject”||shall be interpreted in accordance with the Privacy Laws.|
|“Personal Data ”||shall be interpreted in accordance with the Privacy Laws.|
|“Privacy Laws”||means applicable laws serving to ensure the protection of Personal Data (including in connection with the Processing of Personal Data), and the protection of the rights and freedoms (in particular, their right to privacy) of Data Subjects relating to their Personal Data, including the Data Protection Act 2018, the General Data Protection Regulation ((EC) 2016/679)(“GDPR”) and the Privacy and Electronic Communications Directive ((EC)2002/58).|
|“Processing”||shall be interpreted in accordance with the Privacy Laws (and “Process” shall be construed accordingly).|
- Data Protection
- agrees, in relation to the CUSTOMER Personal Data, that CUSTOMER is the Data Controller (and therefore controls what happens to the CUSTOMER Personal Data) and QWASI is the Data Processor.
- The subject-matter and the duration of the Processing, the nature and purpose of the Processing, the type of Personal Data and the categories of Data Subjects are as follows:
- Subject matter of the Processing: the provision by QWASI of the Subscription Service as hosted by QWASI and made available for remote access by CUSTOMER and its Ends Users under the Agreement, including any support.
- Duration of the Processing: For the duration of the agreement and until CUSTOMER Personal Data is deleted in accordance with clause 5.6 of this Exhibit B.
- Nature and purpose of the Processing: To provide CUSTOMER and its End Users access to the Subscription Services in accordance with the Agreement.
- Categories of Data Subjects: CUSTOMER’s End Users, such as landlords and tenants who remotely access the Subscription Services.
- Type of Personal Data: Name, surname, date of birth, contact details such as mobile number and email address, property details and billing information.
- CUSTOMER warrants that it has obtained all the necessary consent from the Data Subjects to disclose their Personal Data to QWASI for Processing in accordance with the terms of the Agreement.
- QWASI acknowledges and agrees that nothing in this Agreement relieves QWASI from its responsibilities and liabilities under the Privacy Laws.
- When QWASI Processes CUSTOMER Personal Data in the course of providing the Subscription Services, QWASI will:
- process the CUSTOMER Personal Data only in accordance with written instructions from CUSTOMER, including with regard to transfers of Personal Data to a third country or international organisation except where required to do so by law. If QWASI is required by law to Process the CUSTOMER Personal Data for any other purpose, QWASI will use reasonable endeavours to inform CUSTOMER of this requirement before the Processing, unless that law prohibits this on important grounds of public interest;
- take reasonable steps to ensure the reliability and competence of QWASI personnel who have access to the CUSTOMER Personal Data;
- ensure that the personnel required to Process the CUSTOMER Personal Data:
- are informed of the confidential nature of the CUSTOMER Personal Data;
- are subject to appropriate obligations of confidentiality; and
- do not publish, disclose or divulge any of the CUSTOMER Personal Data to any third party unless directed in writing to do so by CUSTOMER;
- implement and maintain Appropriate Technical and Organisational Measures to protect the CUSTOMER Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
- taking into account the nature of the Processing, assist CUSTOMER:
- by taking Appropriate Technical and Organisational Measures and in so far as it is possible, in fulfilling the CUSTOMER’s obligations to respond to requests from Data Subjects exercising their rights; and
- in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR or equivalent provisions in the Privacy Laws;
- on expiry or termination of the agreement, at CUSTOMER’s option, return to CUSTOMER all the CUSTOMER Personal Data (unless QWASI is required to retain it by law). If CUSTOMER requires QWASI to delete the CUSTOMER Personal Data QWASI may make a reasonable charge for doing so;
- make available to CUSTOMER all information necessary to demonstrate its compliance with its obligations in this agreement and allow CUSTOMER and its auditors or authorised agents to conduct audits and inspections during the term of the Agreement (and provide reasonable assistance in connection therewith) for the purpose of verifying that QWASI is Processing CUSTOMER Personal Data in accordance with QWASIs obligations under this Agreement and applicable Privacy Laws; and
- not give access to or transfer any CUSTOMER Personal Data to any third party (including any group companies or sub-contractors) without the prior written consent of CUSTOMER. Where CUSTOMER does consent to QWASI engaging a sub-contractor to carry out any part of the Subscription Services, QWASI must ensure the reliability and competence of the third party, its employees and agents who may have access to the CUSTOMER Personal Data and must include in any contract with the third party, provisions in favour of CUSTOMER which are equivalent to those in this clause 2 and as are required by applicable Privacy Laws. For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement or any applicable Privacy Laws, QWASI will remain fully liable to CUSTOMER for the fulfilment of QWASIs obligations under this Agreement.
- QWASI shall notify CUSTOMER immediately if, in QWASIs opinion, an instruction for the Processing of CUSTOMER Personal Data given by CUSTOMER infringes applicable Privacy Laws.
- QWASI shall communicate any claims or requests in respect of CUSTOMER Personal Data (including requests from Data Subjects exercising their rights) without delay to CUSTOMER to enable CUSTOMER to respond in accordance with applicable Privacy Laws.
- If QWASI becomes aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to any CUSTOMER Personal Data that QWASI Processes when providing the Service (a “Data Breach”), QWASI will:
- notify CUSTOMER within 48 hours;
- provide CUSTOMER (as soon as possible) with a detailed description of the Data Breach, the type of CUSTOMER Personal Data that was the subject of the Data Breach and the identity of each affected person, as soon as such information can be collected or otherwise becomes available (as well as periodic updates to this information and any other information CUSTOMER may reasonably request relating to the Data Breach); and
- not release or publish any filing, communication, notice, press release, or report concerning the Data Breach without CUSTOMER’s prior written approval (except where required to do so by law).
- QWASI will not Process CUSTOMER Personal Data outside the European Economic Area, or a country in respect of a valid adequacy decision has been issued by the European Commission, except with the prior written consent of CUSTOMER. Where CUSTOMER gives its consent by agreeing to the terms of this agreement and entering an address in the USA, such transfers will be made subject to the terms of the model clauses for the transfer of CUSTOMER Personal Data to data processors established in third countries adopted by the European Commission or any replacement or additional form approved by the European Commission or as applicable in the UK.