BY USING THE SERVICE, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND AS A CONDITION TO CUSTOMER’S USE OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS (“GENERAL TERMS). THE PERSON WHO ENTERS INTO THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THESE GENERAL TERMS. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Funnel and Customer agree as follows:
1.1 These general terms and conditions (the “General Terms”) shall apply to the delivery of a Service to the Customer. Details of the delivery are provided in the applicable purchase order (“Order”).
1.2 The following order of precedence shall be applied in the event ofconflict or inconsistency between the Order and these GeneralTerms: (i) the Order; (ii) schedules included with or referenced to inthe Order or General Terms; (iii) and these General Terms.
2.1 Capitalized terms used in these General Terms shall have the following meaning:
“Advertising Spend” means Customer’s monthly cost for the online advertising for which the Service will be used.
“Agreement” means these General Terms and any Order referencing these General Terms, and any other schedules, supplements, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.
“Confidential Information” means, with respect to Customer, the Customer Data, marketing and business plans and/or Customer financial information, and with respect to Funnel: (a) the Service and service offering terms, including, without limitation, all (i) computer software (both object and source codes) and related Documentation or specifications; (ii) techniques, concepts, methods, processes and designs embodied in or relating to the Service; and (iii) all application program interfaces, system security and system architecture design relating to the Service; and (b) Funnel research and development, service offerings, pricing and availability. In addition to the foregoing, Confidential Information of either Funnel or Customer (the Party disclosing such information being the “Disclosing Party” and the Party receiving such information being the “Receiving Party”) may also include information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives designates as confidential at the time of disclosure; or (ii) should reasonably be understood by the Receiving Party to be confidential given the nature of the information and the circumstances surrounding its disclosure.
“Customer” means the entity that has consented to the Agreement: (i) by execution of an Order that references these General Terms; (ii) by having started using the Service after signing up for it at Funnel’s website; or (iii) by any other legally binding method of acceptance of the Agreement.
“Customer Data” means any data that Customer imports to the Service from a Data Source or that is generated from such data as a result of Customer’s use of the Service.
“Effective Date” means the earlier of (i) the start date for the Service set out in the Order; or (ii) date of signing of the Order.
“Data Destination” means a destination to which Customer Data is exported from the Service.
“Data Source” means a digital source from which Customer Data is imported to be used in the Service.
“Digital Advertising Data Source” means a Data Source whose data derives from digital advertising on the Internet.
“Documentation” means Funnel’s technical and functional documentation for the Service, prevailing at the time, which is made available to Customer.
“Funnel” means Funnel AB, reg. no. 559062-1263, with its principle place of business at Klarabergsgatan 29, 111 21 Stockholm, Sweden; or if Customer’s principal place of business is located in the United States, Funnel, Inc., with its principle place of business at 33 Arch St, Boston, MA 02110, USA.
“Media Agency” a company that is directly or indirectly using the Service to provide media services or products to its customers.
“Order” means the written order form provided by Funnel (including, if Customer is ordering the Service online, a registration website) entered into by the Funnel entity noted on the order and Customer containing the pricing, subscription period, Data Sources and Data Destinations, and other specific terms and conditions applicable to the Service.
“Other Data Sources” means another Data Source than a Digital Advertising Data Source.
“Party” or “Parties” shall mean each of Funnel or Customer or Funnel and Customer together.
“Service” means the Funnel software as a service, described in the Order and Documentation or as provided by Funnel when the Customer has signed up for using it at Funnel’s website (subject to payment or for use during a free trial), including upgrades and updates thereto made available to the Customer pursuant to the Agreement.
3. Use of the Service
3.1 Provision of the Service. Funnel shall make the Service available to Customer in accordance with the Order and during the term and hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to remotely access and use the Service solely for Customer’s own internal business purposes as permitted by and subject to the terms of the Agreement and the Documentation. If Customer is a Media Agency, Customer may use the Service to provide services to its designated clients, subject to the restrictions in Section 3.3, and, if available, permit its customers to use the Funnel Reports Center functionality. Any charges from a Data Source owner, shall be the responsibility of the Customer.
3.2 Additional Data Source. Upon Customer’s request, and subject to Funnel’s consent, additional Data Sources may added during the term.
3.3 Restrictions. Customer may not: (i) sublicense, license, sell, lease rent or otherwise make the Service available to a third party; (ii) circumvent or disclose the user authentication or security of the Service or any host, network, or account related thereto; (iii) share non-public Service features or content with any third party; (iv) if the Customer is a Media Agency, directly or indirectly, export data to a customer’s Data Destination; (v) copy any ideas, features, functions or graphics of the Service or translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Service; (vi) infringe the intellectual property rights of any entity or person; (vii) interfere with or disrupt the Funnel software or Funnel systems used to provide or host the Service, or other equipment or networks connected to the Service; (iix) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; or (ix) use the Service in a way that does not comply with applicable law.
3.4 Change or modification of the Service. Funnel may change or modify the Service at any time, including restricting the number of subaccounts. During the term, Funnel shall not materially diminish, reduce or eliminate any of the core functionalities of the Service. Customer shall be automatically entitled (as a part of and limited to its existing Agreement) to any functionality that is (as determined by Funnel, acting reasonably) a direct replacement or succession of any functionality removed from or replaced in the Service without any payment of additional fees. For the avoidance of any doubt, Customer shall not be entitled to any functionality that is beyond the scope of an Order. Where Funnel has materially diminished, reduced or eliminated any core functionality in the Service and no equivalent functionality is otherwise made available to the Customer, then Customer may terminate the Agreement in accordance with Section 11.
3.5 Setup Services and Support, Service Quality. Funnel shall free of charge provide the setup services and support, which may reasonably be required by the Customer to understand and use the functionality of the Service. Setup services and support and the service quality shall comply with reasonable market practice.
3.6 Information Security. Funnel undertakes to use good industry practices for information security (such as password protection, encryption, and firewall protection, logging and monitoring) when providing the Service. Further details about Funnel’s information security work are available at funnel.io/funnel-information-security-overview.
4. Customer’s responsibilities and obligations
4.1 Customer Data. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data that Customer enters into the Service or provides for input into the Service. Customer represents and warrants that it has collected and shall maintain and process all Customer Data in compliance with all applicable privacy and data protection laws and regulations. Customer is solely responsible for determining the suitability of the Service for Customer's business and complying with any laws and regulations applicable to the Customer Data and Customer’s use of the Service.
4.2 Use of Data. Customer hereby grants to Funnel a non-exclusive right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Funnel shall be free (during and after the term hereof) to (i) subject to Section 8, use such information and data to improve and enhance the Service and for development, diagnostic and corrective purposes in connection with the Service and other offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
4.3 Customer Account. Customer shall designate one of its employees to be the point of contact with Funnel for the management and support of the Service, and who will be responsible for establishing and managing Customer’s use of the Service, including the creation of usernames and passwords to access Customer’s account. Customer is solely responsible for maintaining the status of its user base. Customer will safeguard all user authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under its account, including without limitation unauthorised access. Customer will notify Funnel immediately if Customer believes an unauthorised third party may be using Customer’s account or if Customer’s account information is lost or stolen.
4.4 User Data. When fulfilling its obligations under the Agreement, Funnel will collect and process such information, which is necessary to administrate Customer’s access and use of the Service and may constitute personal data, e.g. email addresses, authentication credentials and other data related to the use of the Service. Funnel will be the controller and responsible for the processing activities mentioned in this Section 4.4 and Customer shall ensure that its users, which may be subject to such processing, are duly informed about it and consents to the processing.
4.5 Suspension. Funnel may, in addition to such other remedies as Funnel may have, suspend Customer’s right to access or use any portion of the Service immediately without advance notice to Customer if Funnel determines that Customer’s or its users’ use of the Service (i) do not comply with the prohibitions described in Section 3.3; (ii) poses a security risk to the Service or any third party; (iii) may adversely impact the Service, or the networks or data of any other Funnel service provider, customer or business partner; (iv) does not comply with applicable law; or (v) may subject Funnel or any third party to liability; or (vi) is a violation of the infrastructure provider’s acceptable use or similar policy. Funnel may terminate the Agreement if Customer fails to rectify such use within thirty (30) days from notification by Funnel.
5. Personal Data
Funnel may process personal data when providing the Service. The Customer is, or shall be regarded as a controller of the processing of such personal data and Funnel is, or shall be regarded as, a processor of such personal data. Funnel will process such personal data in accordance with the terms set forth in Schedule A Data Processing Appendix and Schedule B CCPA Addendum.
6. Ownership of Intellectual Property Rights
6.1 Funnel IP. Funnel, or its licensors, own all right, title and interest in and to any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Service, including without limitation all software, integrations, integrations with Data Sources and Data Destinations, technology and other rights used to provide the Service, and all graphics, user interfaces and any documentation, any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Except for the limited rights expressly granted herein, the Agreement does not transfer from Funnel any proprietary right or interest in the Service. All rights not expressly granted to Customer in the Agreement are reserved to Funnel and its licensors.
6.2 Customer IP. Customer shall own all right, title and interest in and to any copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Customer Data. Except for the limited rights expressly granted herein, the Agreement does not transfer from Customer any proprietary right or interest in the Customer Data. All rights regarding Customer Data not expressly granted to Funnel in the Agreement are reserved to Customer.
7. Fees and Payment
7.1 Fees. Customer shall pay to Funnel the fees for the Service and any charges from Data Source owners. Except as expressly set forth in the Order, the Service is non-cancellable and all fees are non-refundable. Customer shall have no right to withhold or reduce fees under the Agreement or set off any amount against fees owed for alleged defects in the Service.
7.2 Payment. Customer shall pay to Funnel the fees for the Service provided hereunder, in the amount set forth in the Order, by credit card or by invoice. Payment shall always be made prior to the start date of the Service. Without limiting any other rights or remedies Funnel may have, any amount not paid when due will be subject to interest equal to the lesser of: (i) 1.5% per month of the overdue amount; or (ii) the highest lawful rate allowed by applicable law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. In addition to any interest due under this Section 7.2 Customer shall reimburse any costs or expenses (including, but not limited to, any penalties, charges and legal and other reasonable professional costs and expenses) incurred by Funnel to collect any amount that is not paid when due.
7.3 Taxes. All fees are exclusive of taxes, levies, and duties, and Customer shall be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), withholding, or similar taxes. Funnel may calculate taxes based on the billing information Customer provides.
7.4 Fee Increase. Funnel may increase fees for the Service, which will be effective at the beginning of the next subscription period. Funnel will notify Customer of any increase prior to it becoming effective; notice may be in the form of an invoice. Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled do not constitute a fee increase.
7.5 Effects on non-payment. Funnel may suspend Customer’s access to the Service without advanced notice if Customer fails to pay in full when due.
8.1 Restrictions on Use and Disclosure. Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends, which appear on the original. With respect to the Confidential Information of the other, each Party (i) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (ii) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either Party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder.
8.2 Exclusions. Confidential Information does not include information that the Receiving Party can establish: (i) has entered the public domain without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) has been rightfully received by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to the Receiving Party without any restriction as to use or disclosure prior to first receipt by the Receiving Party from the Disclosing Party; or (iv) has been independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
8.3 Disclosure Required By Law. If the Receiving Party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
9.1 Mutual. Each Party represents and warrants to the other Party: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the representative who entered into this Agreement on behalf of a Party has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 Service. Funnel warrants that the Service will substantially conform to the specifications stated in the Agreement and the Documentation. The foregoing warranty shall not apply to the extent: (i) the Service is not being used in accordance with the Agreement and/or any Documentation; (ii) any non-conformity is caused by third party products, content or service being accessed through the Service that are identified as third party products, content or service not part of the Service (e.g. a Data Source); or (iii) the Service being used was provided for free (no fee) or is a trial use of the Service. Subject to Section 9.5, Customer’s sole and exclusive remedy, and Funnel’s entire liability for breach of the limited warranty in this Section 9.1, shall be correction of the warranted non-conformity or, if Funnel fails to correct the warranted non-conformity after using reasonable commercial efforts, Funnel may terminate access to the non-conforming Service and refund the fees paid by Customer for the Service for the remainder of the term (starting on the date Customer reported the non-conformity).
9.3 Insurance. Funnel is insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses, providing similar services and in localities where Funnel operates.
9.4 Viruses. Funnel warrants that it shall exercise commercially reasonable efforts to keep the Service free of all computer viruses, Trojan horses, and comparable malicious code intended to harm the Customer’s systems (collectively, “Virus”) provided that Funnel shall not be responsible for any such Virus that is placed on the Service by Customer or its users or any third party.
9.5 Remedies. In case of any non-conformity described in this Section 9, Customer shall provide Funnel with prompt written notice for any non-conformity of the Service, within thirty (30) days from Customer’s discovery, or when it reasonably should have discovered, such non-conformity.
9.6 Warranty disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, FUNNEL DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS OR STATEMENTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH THE SERVICE OR OTHER MATERIALS PROVIDED UNDER THE AGREEMENT, OR THAT THE OPERATION OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE.
10. Third Party Indemnification
10.1 Claims Brought Against Customer. Funnel shall defend (at its sole expense) Customer against claims brought against Customer by any third party alleging that Customer’s use of the Service, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of a patent claim(s), copyright, or trade secret rights or any other third party intellectual property rights. Funnel will pay damages finally awarded against Customer with respect to such claims, and will pay reasonable attorney’s fees in connection with such defense. This obligation of Funnel shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service not provided by Funnel or to free (no fee) or trial use of the Service.
10.2 Intellectual Property Claims. In the event a claim under Section 10.1 is made or in Funnel’s reasonable opinion is likely to be made, Funnel may, at its sole option and expense: (i) procure for Customer the right to continue using the Service under the terms of the Agreement; or (ii) replace or modify the Service to be non-infringing without material decrease in functionality. If Funnel provides written notice to Customer that the foregoing options are not reasonably available, Funnel or Customer may terminate the Agreement and Funnel shall refund to Customer all prepaid fees for the remainder of its term after the date of termination.
10.3 Claims Brought Against Funnel. Customer shall defend (at its sole expense) Funnel and licensors against claims brought against Funnel by any third party arising from or related to an allegation that the Customer Data used in connection with the Service violates, infringes or misappropriates the intellectual property rights of a third party. Customer will pay damages finally awarded against Funnel with respect to such claims, and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer or by the conduct of a third party using Customer’s access credentials.
10.4 Conditions. The obligations under this Section 10 are conditioned on (i) the Party against whom a third party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Section 10 except to the extent such failure or delay prejudices the defense; (ii) the Party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (iii) the Party against whom a third party claim is brought reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Party against whom the claim is brought, provided however that Funnel may settle any claim on a basis requiring Funnel to substitute for the Service any alternative substantially equivalent non-infringing service. The Party against whom a third party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the Party obligated to defend claims hereunder. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
10.5 Third Party Indemnification Disclaimer. THE PROVISIONS OF THIS SECTION 10 STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF A PARTY TO THE OTHER PARTY, AND IS THE OTHER PARTY’S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
11. Term and termination
11.1 Term. The term of the Agreement shall begin on the Effective Date and shall continue for the subscription period designated in the Order, including any renewals, or if no subscription period is designated in the Order, until terminated by one of the Parties. If a subscription period is designated in the Order, the term will renew automatically on the last day of each subscription period for an additional time period corresponding to the prior subscription period.
11.2 Termination for Cause. Funnel may terminate the Agreement (including without limitation Customer’s access to the Service) without advance notice if Customer fails to pay applicable fees when due. Either Party may terminate the Agreement for any other material breach by the other Party via written notice, effective in thirty (30) days unless the other Party within such time period cures such breach.
11.3 Termination without Cause. Either Party may terminate the Agreement without cause by providing notice of termination at least one (1) day prior to the end of the then-current subscription period.
11.4 Effects of Termination. Upon termination of the Agreement, Customer shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control.
11.5 Surviving Sections. The following provisions shall survive termination or expiration of the Agreement: (i) Section 3.3 Restrictions; (ii) Section 5 Ownership of Intellectual Property Rights; (iii) Section 7 Fees and Payment; (iv) Section 8 Confidentiality; (v) Section 9 Warranties; (vi) Section 10 Third Party Indemnification; (vii) Section 11.5 Surviving Sections; (viii) Section 12 Limitation of Liability; (ix) Section 14 Dispute Resolution; and (x) any other provision of the Agreement that must survive to fulfill its essential purpose.
12. Limitation of liability
12.1 Death or Personal Injury. Nothing in the Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence; or for fraud or fraudulent misrepresentation; or any other liability that may not be excluded or limited by law.
12.2 Exclusion of Liability. SUBJECT TO SECTION 12.1, AND EXCLUDING GROSS NEGLIGENCE, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, DIRECT OR INDIRECT PROFITS, INVESTMENTS; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (I) THE PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, OR (II) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THE AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT. If the Order includes a free trial (“Trial Period”), then the following terms apply for the Trial Period: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL PERIOD THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND FUNNEL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE FUNNEL’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD SHALL NOT EXCEED $100.
12.3 General Limitation of Liability. Subject to Section 12.1, 12.2, and excluding Section 7 Fees and Payment, Section 8 Confidentiality, Section 10 Third Party Indemnification or any other liability which cannot be excluded or limited by applicable law, the aggregate liability of each Party to the other Party, or any third party in connection with the Agreement, shall not exceed the annual fees payable for the Service under the Agreement.
12.4 Allocation of Risks. The provisions of the Agreement allocate the risks between Funnel and Customer. The Service fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorised by either Party.
13.1 No Partnership. The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created hereby. Notwithstanding any other provision in the Agreement, nothing in the Agreement shall create or confer (whether expressly or by implication) any rights or other benefits in favour of any person not a party hereto.
13.2 Publicity. Provided that a Party complies with any trademark usage requirements notified to it by the other Party, each Party may refer to the other Party as a customer (for Funnel) and a vendor (for Customer) and use the other Party’s logo as part of such reference. Upon execution of the Agreement, Funnel may either (i) issue a press release announcing the relationship between Funnel and Customer; or (ii) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed. Customer agrees to be a reference account for Funnel, provided however that Funnel will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls.
13.3 Non-solicitation of personnel. During the term of the Agreement, and for a period of twelve (12) months thereafter, neither Party will, without the prior written consent of the other, directly or indirectly solicit, hire or employ any employee or individual independent contractor of the other Party who has been involved in the provision of the Service during the preceding year to become an employee or individual independent contractor of the other. Nothing in this Section 13.3 will make a Party liable for general solicitations in the media or on the Internet.
13.4 Force majeure. Any delay or non-performance of any provision of the Agreement caused by conditions beyond the reasonable control of the performing Party (force majeure) shall not constitute a breach of the Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
13.5 Severability, invalidity. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any Section of the Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
13.6 Waiver. Neither Party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
13.7 Construction. The Parties agree that the terms of the Agreement result from negotiations between them. The Agreement will not be construed in favor of or against either Party by reason of authorship.
13.8 Execution of the Order. The Order shall be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order. An Order may also be executed electronically. Signatures sent by electronic means (facsimile or scanned and sent via email, or signed by electronic signature service where legally permitted) shall be deemed original signatures.
13.9 Assignment. Neither Party may assign any of its rights or obligations under the Agreement without the prior written consent of the other, which will not be unreasonably withheld, conditioned or delayed, however Funnel may assign or delegate some or all of its rights and obligations under the Agreement to any of its affiliates, or as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing restriction on assignment by Customer, the Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
13.10 Subcontractors. Funnel shall be entitled to engage subcontractors for the provision of the Service without Customer’s prior consent, and shall be liable for all acts and omissions of subcontractors, as for its own acts and omissions. In respect of processing of personal data, Section 5 applies.
13.11 Entire agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Funnel and Customer in connection with the Parties’ business relationship related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in, and superseded by the Agreement and the Parties disclaim any reliance on any such representations, discussions and writings. the Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions, which may appear on any purchase order furnished by Customer, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding Funnel’s acceptance or execution of such purchase order.
13.12 Amendment. Funnel may amend the Agreement from time to time by posting an amended version at its website and/or sending Customer an email notification or notification through the Service thereof. Such amendment will be deemed accepted and become effective as of the next renewal period after such notice (the “Proposed Amendment Date”) unless Customer first gives Funnel written notice of rejection of the amendment. In the event of such rejection, the Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next renewal period following the Proposed Amendment Date (unless Customer first terminates the Agreement pursuant to Section 11). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. the Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party. Notwithstanding the foregoing provisions of this Section 13.12, Funnel is free to make minor changes to the Agreement provided that that such changes do not have an adverse effect for the Customer. Funnel may also revise the Agreement to the extent necessary to comply with mandatory law. Funnel shall notify Customer of changes made to comply with mandatory law without undue delay and the new version of the Agreement will become effective upon notification.
13.13 Notices. Any notice required to be given by either Party in writing under the Agreement shall be deemed to have been duly received (i) on the day of delivery, if delivered personally; (ii) on the date of confirmation of receipt from the notified Party, if sent by email (although it should be noted that no notice of termination may be served solely over email); (iii) on the second working day after sending, if sent by reputable overnight courier (with delivery receipt obtained); or (iv) on the fifth working day after sending, if sent by registered or certified mail, to the address or email address of the recipient set forth in the Order (or to such other address or email address of the recipient notified to the sender by the recipient for the purpose of the Agreement).
14. Dispute Resolution
14.1 Governing law and jurisdiction. Subject to Section 14.2, the Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall:
14.1.1 if Funnel AB is the party to the Agreement, be interpreted, construed and enforced in all respects in accordance with Swedish law, without regard to its conflict of law principles; or
14.1.2 if Funnel, Inc. is the party to the Agreement, be interpreted, construed and enforced in all respects in accordance with the law of the state of Delaware, USA, without regard to its conflict of law principles.
14.2 Settlement by good-faith discussions. All disputes arising out of or in connection with the Agreement shall be attempted to be settled by good-faith negotiations between senior management of both Parties. Such negotiations shall commence within two weeks from the date of written request from a Party to the other. In the event that negotiations do not result in a resolution of the dispute within one (1) month from said written request, a Party may proceed to arbitration as set forth below. Both Parties agree and acknowledge that that the commencement of such dispute resolution process shall not relieve either Party from its continued duties and obligations under the Agreement, including but not limited to any payments due.
14.3 Disputes. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, which has not been resolved amicably as set forth in Section 14.2, shall:
14.3.1 if Funnel AB is the party to the Agreement, be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the proceedings shall be English. The arbitration award shall be final and binding upon the Parties; or
14.3.2 if Funnel, Inc. is the party to the Agreement, be exclusively settled in the federal and state courts located in the state of Delaware, USA. Each Party hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to the Agreement.
14.4 Confidentiality. The confidentiality undertaking in Section 8 shall apply to any arbitration process or court proceedings hereunder, including any award or judgement.
DATA PROCESSING APPENDIX
1.1 This Data Processing Appendix (“DPA”) is an appendix to the Funnel General Terms.
1.2 The purpose of this DPA is to fulfil the requirements of a written agreement pursuant to Article 28 of the GDPR.
In this DPA the following terms shall have the following meanings:
“Data Protection Laws” refers to Regulation (EU) 2016/679 of the European parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) including supplementing legislation acts and decisions.
”DPA” refers to this Data Processing Appendix and all annexes thereto.
“Personal Data” refers to the personal data that Funnel processes on behalf of Customer pursuant to the Agreement.
“security incident”, “audit”, “controller”, “data subject”, “personal data”, “processor” and “processing” all have the meaning given under the GDPR.
3. Processing instructions
3.1 In consideration of Customer making available the Personal Data to Funnel, Funnel agrees to process the Personal Data in accordance with the terms and conditions of this DPA.
3.2 Subject to clause 3.3 in this DPA, the Parties acknowledge and agree that:
i. for the purposes of this DPA and as between them, Customer is, or shall be regarded as, a controller of the Personal Data and Funnel is, or shall be regarded as, a processor of the Personal Data; and
ii. Customer will comply with its obligations as a controller under the Data Protection Laws and Funnel will comply with its obligations as a processor under this DPA, the Data Protection Laws and Customer’s written instructions.
3.3 Customer instructs Funnel, and Funnel agrees to, process the Personal Data in accordance with the instructions put forward in Annex 1.
4. Confidentiality of processing
4.1 Funnel shall ensure that all persons it authorizes to process the Personal Data are subject to a duty of confidentiality (whether a contractual duty or a statutory duty) and only process the Personal Data as set out in this DPA.
4.2 Funnel shall ensure that only persons who needs to process the Personal Data, in order for Funnel to supply the Service, have access to such Personal Data.
5. Data subject rights
5.1 Funnel shall provide reasonable assistance to Customer to enable Customer to respond to:
i. any request relating to the Personal Data from a data subject to exercise any of its rights under Data Protection Laws;
ii. any other correspondence, enquiry or complaint received from a data subject or regulator in connection with the processing of the Personal Data by Funnel.
5.2 If any such request, correspondence, enquiry or complaint is made directly to Funnel, Funnel shall without undue delay inform Customer of such request, correspondence, enquiry or complaint.
5.3 Funnel shall not disclose any Personal Data in response to a request for access or disclosure from any third party without Customer’s prior written consent, unless where Funnel is compelled to do so in accordance with applicable law or as otherwise allowed under this DPA or the Agreement.
6. Data protection impact assessments
If requested by Customer, Funnel shall provide Customer with reasonable assistance in order for Customer to conduct a data protection impact assessment; and if necessary, consult with its relevant supervisory authority.
7.1 Funnel shall implement and maintain appropriate technical and organisational measures to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
7.2 Funnel shall notify Customer of any security incident that it becomes aware of without undue delay, and in any case, never later than 48 hours after Funnel becomes aware of the security incident. All such notifications shall be made at Funnel’s discretion by a phone call or email to Customer representative that Funnel regularly liaises with.
7.3 If the security incident may be attributed to Funnel’s processing of the Personal Data, Funnel shall cooperate with Customer and provide Customer with reasonable assistance and information in the investigation of a security incident.
7.4 All costs associated with managing a security incident and fulfilling its obligations shall be borne by Customer where the security incident occurs as a result of Customer failing to perform its obligations under this DPA or the Data Protection Laws. If the security incident did not occur as a result of Customer failing to perform its obligations under this DPA or the Data Protection Laws, or if it is not possible to determine which Party that are responsible for the security incident, each Party shall bear their respective costs that are associated with managing such security incident and fulfilling such obligations.
8.1 Customer gives Funnel a general written authorisation to subcontract any processing of the Personal Data to a third-party subcontractor.
8.2 Funnel shall, upon request from Customer, provide a list to Customer of the third-party subcontractors Funnel engages with in its processing of the Personal Data.
8.3 Funnel shall impose data protection terms to an equivalent standard as provided for under this DPA for all its subcontractors.
8.4 Funnel shall remain fully liable for the processing of the Personal Data that its subcontractors process under this DPA.
9.1 Funnel shall permit Customer (or its appointed third-party auditors) to audit Funnel's compliance with this DPA, and shall make available to Customer information, systems and staff necessary for Customer (or its third-party auditors) to conduct such audit. Funnel acknowledges that Customer (or its third-party auditors) may enter its premises for the purposes of conducting this audit, provided that Customer gives it reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Funnel's operations. Customer will not exercise its audit rights more than once in any twenty-four (24) calendar month period, except if, and when, required by instruction of a competent supervisory authority.
10. International data transfers
Customer gives Funnel permission to transfer and process the Personal Data outside the European Economic Area, as long as Funnel transfers such Personal Data in accordance with one of the allowed mechanisms prescribed by the Data Protection Laws.
11. Terms and termination
11.1 This DPA shall be in effect for as long as Funnel processes Personal Data for Customer. Upon termination of the Agreement, Funnel shall destroy or return the Personal Data to Customer, depending on what Customer chooses. If Customer has not informed Funnel of its choice within two (2) months from the termination of the Agreement, Funnel shall destroy all Personal Data.
11.2 At the request of Customer, Funnel shall confirm the actions taken regarding the Personal Data after the completion of the process mentioned in clause 11.1 in this DPA.
11.3 If Customer chooses that Funnel should destroy the Personal Data, in accordance with clause 11.1 in this DPA, it shall not apply to the extent that Funnel is required by any European Union, or Member State, law or other applicable law to retain such data.
11.4 All clauses of this DPA which by their nature should survive termination will survive termination.
Instruction for processing of the Personal Data
To provide the Service pursuant to the Agreement and security and monitoring.
Categories of Personal Data
Data Sources, which the Customer imports to the Service.
Categories of data subjects
Data subjects in the Data Sources, e.g. customers’ customers and employees.
adaptation or alteration;
anonymization or aggregating; and
Location for the processing of the Personal Data
Funnel will process the Personal Data during the period in which the Agreement is in effect and for a reasonable period of time thereafter. However, Funnel will strive to aggregate or in other ways de-identify the Personal Data so it is no longer considered as personal data.
Subcontractors per the Effective Date
Funnel uses data center services from Amazon Web Services (AWS), Google and Microsoft (based in the EU and the USA).
Pursuant to the Funnel General Terms entered into between Customer and Funnel, (the “Agreement”), and in furtherance of obligations under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”), the Parties hereby adopt this CCPA Addendum (“Addendum”) for so long as Funnel maintains Personal Information on behalf of Customer. This Addendum prevails over any conflicting terms of the Agreement, but does not otherwise modify the Agreement.
The capitalized terms used in this Addendum and not otherwise defined in this Addendum shall have the definitions set forth in the CCPA. “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §1798.100 et seq., and its implementing regulations.
This Addendum applies to the collection, retention, use, disclosure, and sale of Personal Information provided by Customer or which is collected on behalf of Customer by Funnel to provide Services to Customer pursuant to the Agreement or to perform a Business Purpose.
4. Processing and Restrictions
4.1 Customer may under the Agreement disclose Consumers’ Personal Information to Funnel. With regard hereto, the Parties acknowledge and agree that Funnel is a Service Provider and received Personal Information pursuant to the business purpose of providing the Service to Customer as set forth in the Agreement and carry out such other activities as specified therein.
4.2 With respect to Consumers’ Personal Information provided to Funnel by Customer, Funnel shall not:
(i). Sell the Personal Information;
(ii). Retain, use or disclose the Personal Information for any purpose other than for the specific purpose of providing the Service and performing the other activities specified in the Agreement, including retaining, using or disclosing the Personal Information for a commercial purpose other than providing the Service and performing the other activities specified in the Agreement; or
(iii). Retain, use or disclose the Personal Information outside of the direct business relationship between the Parties.
5. Compliance Certification
5.1 The Customer hereby certifies its compliance with its obligations as a Business under the CCPA, including providing notice that the Personal Information is being used or shared consistent with Cal. Civ. Code 1798. 140(t)(2)(C)(i).
5.2 Funnel hereby certifies that it understands the restrictions on its use of Consumers’ Personal Information imposed by the CCPA and by this Addendum and agrees to comply with the restrictions herein.
6. Consumer Rights
6.1 Funnel shall provide reasonable assistance to Customer in facilitating compliance with Consumer rights requests.
6.2 Upon direction by Customer, and in any event no later than 30 days after receipt of a request from Customer, Funnel shall promptly delete the Personal Information as directed by Customer.
6.3 Funnel shall not be required to delete any of the Personal Information to comply with a Consumer’s request directed by Customer if it is necessary to maintain such information in accordance with Cal. Civ. Code 1798.105(d), in which case Funnel shall promptly inform Customer of the exceptions relied upon and Funnel shall not use the Personal Information retained for any other purpose than provided for by that exception.
7. Deidentified Information
In the event that either Party shares Deidentified Information with the other Party, the receiving Party warrants that it: (i) has implemented technical safeguards that prohibit reidentification of the Consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of Deidentified information; and (iv) will make no attempt to reidentify the information.
8. As Required by Law
Notwithstanding any provision to the contrary of the Agreement or this Addendum, Funnel may cooperate with law enforcement agencies concerning conduct or activity that it reasonably and in good faith believes may violate federal, state, or local law.
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