Logimeter Terms and Conditions
|Severity||Description||Response Time||Resolution time|
|Urgent||A problem that results in unavailability of system or data||1 business hr||4 business hrs|
|High||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|
|Medium||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|
|Low||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.
1. 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.
2. 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.
3. 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.
4. 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:
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 .
5. CUSTOMER INDEMNITIES
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:
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.
6. OBLIGATIONS OF THE PROCESSOR
Compliance with Instructions.
Data Subject Requests
Sub-Processors and Third-Party Hosting
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:
8. GENERAL PROVISIONS
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.
APPENDIX 1: DETAILS OF PERSONAL DATA AND PROCESSING ACTIVITIES
1. Categories of Data Subjects:
2. Types of Personal Data:
3. Duration of the Processing
4. Purpose of Processing
5. Nature of Processing
APPENDIX 2: THIRD PARTY SUB PROCESSO45
|Sub-Processor||Location of Processing|
|Amazon Web services||Ireland|