Nature of this Contract
On signature of this agreement by both parties, this document constitutes a binding agreement between the parties.
This agreement shall come into force and effect on the date of signature by Logimeter and the client. The client can cancel this agreement by emailing a cancellation request to email@example.com. Logimeter requires a 30 day notice period. Logimeter can cancel this agreement by emailing the signatory on this contract and will also provide a minimum 30 day notice period.
Standard Service Level Agreement
This Service Level Agreement (SLA) identifies the services required and the expected level of services Provided by Logimeter. The resolution times identified in the Service Level Agreement is for requests and/or issues that Logimeter has direct control.
|A problem that results in unavailability of system or data
|1 business hr
|4 business hrs
|A problem that gives End Users data access but restricted functionality or that results in the unavailability of data
|2 business hrs
|6 business hrs
|A problem that gives End Users data access but restricted functionality and only affects one or a few End Users
|4 business hrs
|10 business hrs
|Cosmetic production problem that does not affect availability or functionality of the services
|8 business hrs
Next Dot release
The customer agrees that all right and title in and to any products and/or services to be provided by Logimeter to the customer in terms hereof shall be and remain the sole property of Logimeter.
Logimeter warrants that it has the necessary resources and skills to comply with its obligation in terms of this agreement. Each party warrants to the other that it has complied with all regulatory requirements in its territory.
Personal Data means any information relating to an identified or identifiable individual where such information is contained within data and is protected similarly as personal data or personally identifiable information under the South African Protection of Personal Information Act of 2013 or the EU General Data Protection Regulation.
To the extent that any Personal Data is processed in connection with this Agreement and/ or the delivery of the Services by Logimeter, AS Processor or as an Operator, to the Customer as a Responsible Party, then the terms set forth in the Data Processing Addendum attached hereto, shall apply.
The Customer understands its role as a Responsible Party/Controller and further confirms that it has the sole responsibility for the accuracy and quality as well as the legal basis for collecting and processing the Personal Data of its customers and employees. For the sake of clarity, the Customer must ensure that it has obtained the consent of its sales representatives for their Personal Data to be shared with Logimeter pursuant to the delivery of the Services. The Customer confirms that Logimeter is authorised to use the Personal Data of Customer personnel, which is provided to us by the Customer, to communicate with the Customer’s personnel about the Services and any updates regarding the functionality of our products.
Protection of the Customer Data
The Parties acknowledge that THE CUSTOMER and its clients, due to and as part of its and its clients’ everyday business activities, will accumulate a considerable database of information pertaining to its clients’ dealerships, franchises, suppliers and the like (“the Protectable Data”).
THE CUSTOMER regards the Protectable Data as being highly confidential and secret.
The Protectable Data is furthermore of considerable commercial importance to THE CUSTOMER.
As such, LOGIMETER agrees to respect and maintain the confidentiality of the Protectable Data at all times throughout the duration of this Agreement and indefinitely after termination of this Agreement.
Limitation of Liability
Neither party shall have any claim against the other in respect of any loss, claim, action, damage, or expense suffered or sustained by the other party pursuant to a breach by that party of its obligations under this agreement, unless such loss, claim, action, damage or expense arises out or is attributable to a negligent act or omission on the part of that party.
Notwithstanding anything to the contrary contained in this agreement, neither party shall be liable to the other in any circumstances whatsoever for any indirect, contingent or consequential loss (including but not limited to loss of revenue, loss of business, loss of profit and/or loss of data) sustained or incurred by the other party howsoever arising.
Notwithstanding anything to the contrary contained in this agreement, Logimeter’s maximum aggregate liability for any loss, liability, damage or expense of whatsoever nature that may arise in respect of this agreement shall in no event exceed the total amounts paid by the customer to Logimeter during the 6 (six) months prior to the date on which the claim(s) arose.
The contents of this agreement constitutes confidential information and neither party may publicise or disclose to any third party the contents hereof or the relationship formed in terms hereof or any information of whatsoever nature exchanged by the parties in connection herewith without the prior written consent of the other party.
Should either party commit a breach of this agreement and fail to remedy such breach within 21 days of receiving written notice from the other party requiring it to do so, then the aggrieved party shall be entitled, without prejudice, to cancel this agreement and claim immediate specific performance of all the defaulting party’s obligations whether or not due for performance.
It shall not be regarded as a breach should any act of omission be forced upon the offending party by regulatory rules.
Logimeter provides for 700 minutes of talk-time per Media Tracker & Call Manager number per month. If this is exceeded, Logimeter reserves the right to charge R0,45c per minute for additional minutes. Logimeter also provides for 50 SMS per tracking number per month. If this is exceeded, Logimeter reserves the right to charge additional SMS at R0,25c per SMS.
The invalidity of any part of this proposal shall not affect the validity of any other part.
Neither party may assign this agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
No variation or modification of the agreement shall be of any force or effect unless the same shall be confirmed in writing and signed by both parties.
This agreement and its interpretation are subject to South African law.
The parties choose domicilium citandi et executandi for all purposes, the physical address set out on the cover page of this proposal.
INTRODUCTION AND APPLICATION
This Data Processing Addendum and its annexures (“the DPA”) forms part of our Terms of Service found at https://xtracker.logimeter.com/ or any other written agreement for the provision of customer lead optimisation software and services including; call tracking, call recording, inbound and outbound call management and evaluation of customer’s conversations (in either case, the “Agreement”) between Admeter South Africa (Pty) Limited trading as Logimeter , its subsidiaries and Affiliates (“the Processor’, “Logimeter”) and the customer procuring the services and products that we offer (“the Customer, the Controller”). Each a Party and together the Parties.
The Customer acts as a Controller / Responsible Party and has contracted with Logimeter to perform certain services in accordance with the Agreement, which require the processing of Customer Personal Data.
In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence to the extent of such conflict or inconsistency.
The DPA is applicable for the duration of the Agreement, with surviving provisions applying as the applicable law and context dictates.
Capitalised terms which are not defined herein have the meaning assigned to them in the Agreement.
DEFINITIONS AND INTERPRETATION
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Data Protection Legislation” “means the privacy laws which apply to the Processing of the Customer Personal Data in terms of the Agreement, in particular, the POPIA and, if applicable, the GDPR.
“Controller”, “Responsible Party” “Data Subject”, “Personal Data Breach”, “Processor”, “Operator”, “Process/Processing”, and “Supervisory Authority” shall all have the same meaning ascribed to them Applicable Data Protection Legislation.
“Customer Personal Data” means any and all Personal Data Processed by the Processor as a contractor on behalf of the Customer and pursuant to or in connection with the Agreement
“GDPR” means the General Data Protection Regulation (EU) 2016/679.
“Instruction” means the written, documented instruction, issued by the Customer Logimeter directing the same to perform a specific action with regard to Customer Personal Data. “Personal Data” means any information relating to an identified or identifiable individual where such information is contained within data and is protected similarly as personal data or personally identifiable information under Applicable Data Protection Legislation.
“POPIA” means the Protection of Personal Information Act, 4 of 2013 including its regulations as amended from time to time.
“Sub-processor” means any entity engaged by Logimeter to Process Customer Personal Data in connection with the Agreement.
PROCESSING OF PERSONAL DATA
The subject matter and duration of the Processing, nature and purpose of the Processing and types of Personal Data are set out in Appendix 1 as supplemented by the terms of the Agreement.
Logimeter does not Process the Customer Personal Data for its own purposes (whether commercial or personal). Rather, it Processes such Customer Personal Data on behalf of and according to the Instructions. For these purposes Logimeter is a Processor/Operator, and the Customer is a Controller/ Responsible Party.
If the Customer is a Processor / Operator with respect to the Customer Personal Data, the Customer warrants its lawful instructions and actions with respect Processing Personal Data, including its appointment of Logimeter as a Sub-processor.
In relation to the Customer Personal Data, the Parties will comply (and will ensure that any of its personnel comply and use commercially reasonable efforts to ensure that its Sub-processors comply), with Applicable Data Protection Legislation.
AS BETWEEN THE PARTIES, THE CUSTOMER WILL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, AND LEGALITY OF CUSTOMER PERSONAL DATA AND THE MEANS BY WHICH THE CUSTOMER ACQUIRED SUCH PERSONAL DATA. FOR THE AVOIDANCE OF DOUBT, THIS MEANS THAT THE CUSTOMER MUST ENSURE THAT IT HAS THE APPROPRIATE LEGAL JUSTIFICATION TO PROCESS PERSONAL DATA AND, AS A RESPONSIBLE PARTY, TO ENSURE THAT DATA SUBJECTS PROVIDE THEIR PERSONAL DATA TO THE CUSTOMER VOLUNTARILY, THAT THEY ARE ADEQUATELY INFORMED OF THE PURPOSE FOR WHICH THEIR PERSONAL DATA IS COLLECTED, USED, SHARED AND STORED, THAT THERE IS ADEQUATE DATA SUBJECT PARTICIPATION AND THAT THEY ARE INFORMED THAT THEIR PERSONAL DATA WILL BE SHARED BY THE CUSTOMER WITH LOGIMETER IN ORDER FOR US TO PERFORM THE SERVICES IN TERMS OF THE AGREEMENT.
CUSTOMER WARRANTIES AND RESPONSIBILITY
The Customer unconditionally acknowledges and accepts the legal duties imposed on it as a Controller/ Responsible Party in terms of the Applicable Data Protection Legislation and indemnifies Logimeter for a loss or harm (whether direct or consequential) which may arise as a result of its failure to comply with its obligations in terms of the Agreement and Applicable Data Protection Legislation.
The Customer shall at its sole expense, indemnify and hold Logimeter harmless against all liability, including legal costs, claims, civil actions, damages, indirect or consequential damages, or expenses incurred by Logimeter or for which Logimeter may become liable due to any failure by the Customer or its employees or agents whether authorised or not, to comply with the obligations under the Agreement (including this DPA) or Applicable Data Protection Legislation.
The Controller warrants that it has all necessary rights to provide the Customer Personal Data to the Processor. The Controller warrants that one or more lawful grounds for Processing set out in Applicable Data Protection Legislations support the lawfulness of the Processing of Customer Personal Data.
To the extent that Applicable Data Protection Legislation require, the Controller is responsible for:
obtaining prior authorisation from the South African Information Regulator where its Processing activities require it to do so;
making sure that certain designated Personnel within its organisation provide all necessary privacy notices and participation forms to Data Subjects;
obtaining any necessary Data Subject consent to the Processing and maintaining a record of such consent;
communicating when a Data Subject has revoked consent to the Processor in this event.
The Customer warrants that the Agreement sets out the Customer’s complete and final instruction to Logimeter in relation to the Processing of Personal Data and any additional instructions outside the scope of the Agreement will require prior written agreement between the Parties.
The Customer shall inform Logimeter without undue delay and comprehensively about any errors or irregularities related to legislation applicable to the Processing of Customer Personal Data.
The Customer shall inform Logimeter and the appropriate Supervisory Authorities, without delay, if the Processing includes special categories of Personal Data as contemplated by Applicable Data Protection Legislation including without limitation: financial, medical and health related information, information regarding children, or any type of Processing or Personal Data that is afforded a higher level of protection under Data Protection Legislation.
THE CUSTOMER WARRANTS THAT IT HAS IMPLEMENTED THE REQUIRED TECHNICAL AND ORGANISATIONAL MEASURES TO ADEQUATELY PROTECT PERSONAL DATA AGAINST ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORISED DISCLOSURE OF, OR ACCESS TO PERSONAL DATA IN COMPLIANCE WITH ITS OBLIGATIONS IN TERMS OF DATA PROTECTION LEGISLATION AND INDEMNIFIES LOGIMETER FOR ANY LOSS, CLAIMS, HARM OR DAMAGES WHETHER DIRECT OR INDIRECT OCCASIONED AS A RESULT OF LOGIMETER’S ENGAGEMENT IN TERMS OF THE AGREEMENT. THIS INDEMNITY WILL NOT APPLY TO LOSS, CLAIMS, HARM OR DAMAGES ATTRIBUTABLE TO GROSS NEGLIGENCE OR FAULT ON THE PART OF LOGIMETER.
If Logimeter is sued for something that the Customer has indemnified it for, the Customer will take Logimeter’s place in the lawsuit or be liable to reimburse Logimeter for any costs, damages and expenses including attorneys’ fees on the attorney and own client scale. This means that the Customer will be liable to pay Logimeter’s attorney’s fees finally awarded against us by a court or agreed to in a written settlement agreement, provided that:
Logimeter will notify the Customer in writing as soon as we become aware of the indemnified claim so it can take steps to contest it,
Customer may assume sole control of the defence of the claim or related settlement negotiations; and
Logimeter will provide, at Customer’s expense, all the assistance, information, and authority necessary to enable you to perform your obligations under this clause.
The Customer must pay any amount due under clause 6.1 within 30 (thirty) days of written demand. If the Customer contests the amount, it must pay the amount into Logimeter’s attorney’s trust or give us security to cover the amount, until the dispute has been resolved.
OBLIGATIONS OF THE PROCESSOR
Compliance with Instructions.
The Parties acknowledge and agree that Customer is the Controller / Responsible Party and Logimeter is the Processor / Operator of Personal Data.
Logimeter will collect, Process, and use Personal Data only within the scope of the Customer’s Instructions. If Logimeter believes that an instruction infringes any Data Protection Legislation, the Customer will be informed immediately.
if we are unable to process Personal Data as per Customer’s instructions due to a legal requirement, Logimeter will:
promptly notify the Customer of that legal requirement before continuing with the Processing; and
cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Customer issues new instructions and are able to comply.
If this provision is invoked, Logimeter will not be liable to the Customer under the Agreement for any failure to perform the applicable services until such time as the Customer issues new, lawful instructions regarding the Processing.
Logimeter will facilitate the Customer’s compliance obligations to implement security measures with respect to Personal Data (including if applicable, the Customer’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR) by: (i) implementing and maintaining the security measures described in terms of our information security policy; (ii) complying with the terms of section 7.1.7 (Personal Data Breaches); and (iii) providing the Customer with information in relation to the Processing in accordance with section 10 (Audits).
Confidentiality: Logimeter will ensure that any personnel, whether they are employed or contracted as such, who are under our authority and who are authorised to Process Personal Data are subject to confidentiality obligations with respect to that Personal Data. The undertaking of confidentiality shall continue after the termination of the Processing activities to which the duty of confidentiality relates.
Personal Data Breaches: Logimeter will notify the Customer as soon as possible after becoming aware of any Personal Data Breach. At the Customer’s request, Logimeter will promptly provide the Customer with all reasonable assistance to enable the Customer to notify the competent Supervisory Authority/ies and/or affected Data Subjects about any relevant Personal Data Breaches if Customer is required to do so under the Data Protection Legislation.
Data Subject Requests
Logimeter will provide reasonable assistance including the implementation of reasonable and appropriate technical and organisational measures, to enable Customer to respond to any Data Subjects seeking to exercise their rights under the Data Protection Legislation (including their right to access, rectification, restriction, deletion or portability of Personal Data), to the extent permitted by the law. If such a request is made directly to Logimeter, the Company will promptly inform the Customer and will advise Data Subjects to submit their request to the Customer. The Customer shall be solely responsible for responding to any Data Subjects’ requests. The Customer shall reimburse Logimeter for any costs arising from this assistance.
Logimeter shall implement measures toward achieving the required technical and organisational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data.
The Customer unconditionally assumes all risks associated with the Services pursuant to the Agreement and has voluntarily assumed these risks with a full and unconditional indemnification in favour of Logimeter against financial loss or reputational harm resulting from any Personal Data Security Breach which may occur in course of providing the Services. This indemnification will not apply in the case of any Personal Data Breach which is caused directly by the gross negligence or wilful misconduct of Logimeter.
Sub-Processors and Third-Party Hosting
Logimeter is entitled to engage sub-Processors to fulfil its obligations defined in the Agreement only with Customer’s written consent. For these purposes, Customer consents to the engagement as sub-Processors of Logimeter’s Affiliates and the third parties listed in Appendix 2. For the avoidance of doubt, the above authorisation constitutes the Customer’s prior written consent to sub-Processing by Logimeter.
The Customer acknowledges and understands that in certain instances Logimeter may contract with a third-party hosting service provider (“Hosting Service Provider”) in order to host the Customer’s data, including Personal Data pursuant to the Agreement (“Hosting Services”). As such, the terms of service of the Hosting Service Provider are applicable and are supplementary to the terms of the Agreement.
The Customer indemnifies and holds Logimeter harmless against all losses it may suffer or actions against us as a result of:
the use of the Hosting Services, or any downtime, outage, degradation of the network, interruption in or unavailability of the Hosting Services. This includes software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement, or relocation of premises affecting the Hosting Services;
non-performance or unavailability of any of the Hosting Services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail servers;
non-performance or unavailability of external communications networks to which the Hosting Service Provider or the Logimeter network infrastructure is connected, and
repairs, maintenance, upgrades, modifications, alterations, or replacement of any hardware forming part of the Services, or any faults or defects in the hardware.
If Logimeter intends to instruct sub-Processors other than the companies listed in Appendix 2, the Company will notify the Customer in writing (email to the email address(es) on record in Logimeter ’s account information for the Customer is sufficient) and will give the Customer the opportunity to object to the engagement of the new sub-Processors within 30 (thirty) days of being notified, failing which Logimeter will be entitled to appoint the sub-Processor. The objection must be based on reasonable grounds (e.g., if the Customer proves that significant risks to the protection of its Personal Data exist at the sub-Processor). If Logimeter and Customer are unable to resolve such objections, either party may terminate the Agreement in accordance with its provisions relating to termination.
Where Logimeter engages sub-Processors, Logimeter will enter into a contract with the sub-Processor that imposes on the sub-Processor the same obligations that apply to Logimeter and the Controller/ Responsible Party under this DPA.
Where a sub-Processor is engaged, the Customer must be granted the right to monitor and inspect the sub-Processor’s activities in accordance with this DPA and the Data Protection Legislation, including to obtain information from Logimeter, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-Processing contract, where necessary, by inspecting the relevant contract documents.
The provisions of this section shall mutually apply if Logimeter engages a sub-Processor in a country not recognized by the European Commission as providing an adequate level of protection for personal data. If, in the performance of this DPA, Logimeter transfers any Personal Data to a sub-Processor in a third country without adequate data protection, Logimeter shall, in advance of any such transfer, ensure that it with execute Standard Contractual Clauses to achieve adequacy in respect of that Processing is in place.
Deletion or Retrieval of Personal Data:
Other than to the extent required to comply with Data Protection Legislation, following termination or expiry of the Agreement, Logimeter will delete all Personal Data (including copies thereof) processed pursuant to this DPA. If Logimeter is unable to delete Personal Data for technical or other reasons, Logimeter will apply measures to ensure that Personal Data is blocked from any further Processing. The Customer shall, upon termination or expiration of the Agreement and by way of issuing an instruction, stipulate, within a period of time set by Logimeter, the reasonable measures to return Personal Data. Any additional cost arising in connection with the return or deletion of Personal Data shall be borne by the Customer.
The Customer shall provide a comprehensive retention schedule for all Personal Data prior to commencement of Processing.
Either party may, prior to the commencement of Processing, at annual intervals hereafter, or where a Personal Data Security Breach is reasonably suspected to have occurred, audit the technical and organisational measures taken by the other in terms of the Data Protection Legislations. For such purpose, the parties may:
obtain information from each other,
request an attestation or certificate by an independent professional expert, or
upon reasonable and timely advance agreement, during regular business hours and without interrupting business operations, conduct an on-site inspection of the business operations or have the same conducted by a qualified third party which shall not be a competitor of either party.
Either party shall, upon written request, and within a reasonable period of time provide the other with all information necessary for such audit, to the extent that such information is within the other party’s control, and neither are precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
With respect to updates and changes to this DPA. No addition, change or supersession of this DPA, nor any waiver of any right arising from this Agreement, shall be of any force or effect unless reduced to writing and signed by all the Parties with a wet ink signature.
In case of any conflict, this DPA shall take precedence over the Agreement. Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
Categories of Data Subjects:
Customer contacts and other end users including the Customer’s employees, contractors, collaborators, customers, prospects, suppliers, and subcontractors.
Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to the Customer’s end users.
Types of Personal Data:
Contact Information, the extent of which is determined and controlled by the Customer in its sole discretion;
Voice recording of end users and Customer sales personnel pursuant to the analysis of lead conversion;
navigational data (including website usage information),
email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the Customer’s online platform;
Duration of the Processing
Until the earliest of (i) expiry/termination of the Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Agreement (to the extent applicable).
Purpose of Processing
Processing necessary to provide the Service to Customer, pursuant to the Agreement.
Nature of Processing
The Processing of Personal Data in accordance with the instructions issued to Logimeter by the Customer pursuant to Logimeter providing the Services to the Customer in terms of the Agreement.
|Location of Processing
|Amazon Web services