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Terms of Service
BigPulse Basic - Service
Agreement
RECITALS:
A (i) BigPulse Voting Pty Ltd, ACN
627 072 664 ABN 9662 7072
664, Level 57, 25 Martin Place, Sydney NSW 2001. Postal Address:
PO Box 198,
Forestville NSW 2087.
("BigPulse" or "we" or "our”), has the right to use
and license BigPulse online election management and online
voting services
("BigPulse Services").
(ii)For users resided in North America this
agreement shall be
with:- BigPulse Inc. 388 Market St, Suite 1300, San Francisco
CA 94603. Postal address: PO
Box 720308, San Francisco CA 94172 ("BigPulse" or "we" or
"our”), has the right to use and license BigPulse online
election
management and online voting services ("BigPulse Services").
B. User of BigPulse Services (“customer”
or “client”), Authorized
Representative of Customer or Client
(“you” or "your") wishes to use our online voting
platform marketed as BigPulse Basic
under license on the following
terms and conditions:
THE PARTIES AGREE:
1. GENERAL AND ADDITIONAL DEFINITIONS
1.1 General
(a) This Agreement covers the following BigPulse
Service:
(i) BigPulse Basic Self-Managed Service (“Self-Managed”): This
includes access
to the BigPulse Basic web-based Election Manager software
("Election
Manager" or "Software") for a defined term and number of voting
accounts. A Self-Managed Service which will enable the Customer
to open,
configure, edit and manage online elections (the "Elections");
(b) By checking the "Accept
Terms of Service" box:
(i) You will be confirming that the Customer agrees to be bound
by the terms of
this Agreement and these terms also apply to any upgrades,
extensions or
renewals of the BigPulse Basic Service.
(ii) You warrant that You are authorized to sign this agreement
on behalf of
the Customer and in the event that You do not have actual or
implied authority
to bind The Customer, You personally indemnify BigPulse to the
value of this
Agreement; and
(c)The
date/time of this Agreement shall be the date/time that You
click the
"Terms of Service" button.
1.2 Additional Definitions
(a) The term "Personal Data" means any information or opinion in
any
recorded format about an individual whose identity is apparent
or is reasonably
ascertainable from the information or opinion and who is alive
or has not been
dead for more than 30 years.
(b) The term "Confidential Information" means information that
is by
its nature confidential and is designated by a party as
confidential or a party
knows or ought to know is confidential but does not include
information which
is or becomes public knowledge other than by breach of this
clause and who is
alive or has not been dead for more than 25 years.
(c) The term "End Users” or
“Voters"
means the people registered to vote in the Customer's Ballots
who
have Voting Accounts created and the people represented in any
data lists that
the Customer transmits to BigPulse
using the
secure data file upload service provided by BigPulse.
(d) The term "Client-Side Security Management Tools" means
security
resources, features, functionality and/or controls in the
Software that may be
used at the Customer's discretion.
(e) The term "Customer Data" means data submitted, stored, sent
or
received via the Services by the Customer or End Users.
(f) The term "Data Incident" means a breach of BigPulse’s
security
leading to the accidental or unlawful destruction, loss,
alteration,
unauthorized disclosure of, or access to, Customer Data on
systems managed by
or otherwise controlled by BigPulse. “Data Incidents” will not
include
unsuccessful attempts or activities that do not compromise the
security of
Customer Data, including unsuccessful log-in attempts, pings,
port scans,
denial of service attacks, vulnerabilities detected and patched
form which there
is no evidence of compromise to Customer Data and other network
attacks on
firewalls or networked systems.
(g) The term "EEA" means the European Economic Area.
(h) The term "European Data Protection Legislation" means as
applicable: (a) the GDPR; and/or (b) the Federal Data Protection
Act of 19 June
1992 (Switzerland).
(h1) The term "GDPR" means 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 processing of Personal Data and on the
free movement of
such data, and repealing Directive 95/46/EC.
(j) The term "BigPulse’s Third Party Auditor" means a
BigPulse-appointed, qualified and independent third party
auditor, whose
then-current identity BigPulse will disclose to the Customer.
(k) The term "Notification Email Address" means the email
address(es)
designated by the Customer's “Account
Controller(s)”
authorized to receive certain notifications from BigPulse and from which BigPulse
can accept instructions
related to the BigPulse Service.
(l) The terms “Personal Data”, “data subject”, “processing”,
“controller”,
“processor” and “supervisory authority” as used in this
Agreement have the
meanings given in the GDPR.
(m) The Term "Security Measures" means technical and
organizational
security measures implemented by BigPulse to maintain and
protect the Customer
Data against accidental or unlawful destruction, loss,
alteration, unauthorized
disclosure or access.
(n) The term "Customer's Designated Election Managers" means
people
the Customer has appointed as the client-side managers of the
Election and if
required that BigPulse can communicate
with and accept instructions from related to the BigPulse
Service.
(o) The term "Security Email" means security@bigpulse.com.
(p) The term "Voting Account" means a personal sign-in account
used
for accessing the Customer's Ballots and primarily for voting in
those Ballots
and, when the Ballot is configured to allow it, also provides a
means to the
user(voter) with access to the Voting Account a facility to
input and edit some
personal data that may be associated with the user's Voting
Account.
(q) The term
“Election” means one or more ballots
presented to the voter members. A single BigPulse Basic Election
can include up
to a limit of 10 Ballots. Where each Ballot requires Voters to
record a vote.
Typically an Election will consist of multiple
issues/questions/choices that
require members to vote on which means one Election will
typically consist of
multiple ballots.
(r) The term “Ballot”
typically means a piece of
paper on which a person's vote is marked. For BigPulse
Elections, all such
Ballots are shown in digital format that can be accessed from
electronic
devices connected to the internet such as PCs, laptops, Android
tablets, Ipads &
Mobile phones.
2. LICENSE TO
USE
2.1 Acceptance of our
“Terms Of Service” will
grant You access to our
BigPulse Basic
Self-Managed Service up to a limit of 5,000 Voters per ballot
and includes a maximum of
ten Ballots per election.
2.2 The fee for the Self-Managed Service as set out in this
Agreement shall be
in the currency of the account owner's country of
residence inclusive of all applicable taxes (the
"Fee"). The
fee includes electronic voting. This is a prepaid service. This
Fee is payable
in full by the Customer once the election has been set up and
before the
election is run.
2.3 Subject to the terms of this Agreement BigPulse grants to
the Customer a
non-exclusive, non-transferable, revocable License.
(a) For the Customer to access and use BigPulse Basic Services;
and
(b) To print, copy and use reports generated by BigPulse Basic
Services.
2.4 You must neither do any
of the following
nor permit any other person to do so:
(a) Assign, sub-license, lease, rent, loan, assign or otherwise
transfer the
BigPulse Basic Service to any third person;
(b) Adapt/modify the BigPulse Basic Services platform;
(c) Attempt to reverse engineer, reverse compile, de-compile
disassemble or
otherwise endeavor to obtain the BigPulse Basic Services source
code from the
object code;
(d) Change, mortgage or encumber in any way BigPulse Basic
Services;
(e) Download, use, copy, adapt, translate, publish, communicate
to the public,
or create any adaptation, translation or derivative of BigPulse
Basic Services,
unless expressly permitted by the Agreement or the law;
(f) Use unauthorized modified versions of BigPulse Basic
Services, including
(without limitations) for the purpose of building a similar or
competitive
product or service or for the purpose of obtaining unauthorized
access to
BigPulse Basic Services.
2.6 The Parties agree as follows:
(a) Subject to applicable laws, the License Purchase Fee is not
refundable on
termination.
3. HOSTING AND SERVICE
3.1 The Election will
be hosted on the BigPulse
servers.
3.2 BigPulse will take all reasonable measures to ensure that it
provides a
high quality service and website response time during the
License Subscription
Period consistent with the latest version of the Security
Documentation.
3.3 You acknowledge that BigPulse technology may be upgraded at
any time
without notice and daily upgrades are not unusual for BigPulse
technology.
3.4 BigPulse will not be required to communicate with the
Customer's End Users.
If any End User contact BigPulse directly in relation to the
Customer’s
Elections, or intended Elections, BigPulse will refer these End
Users to the
Customer's Designated Election Managers or Account
Controller(s).
4. SUPPORT SERVICES
4.1
Support process and procedures
(a)
BigPulse Basic includes access to
an online detailed help manual including worked examples,
information windows
and prompts to support Customers with their election setup.
BigPulse Basic is
provided as a self-managed service, Customers are expected to
have the ability
and technological skills to use this service without seeking
support from
BigPulse staff.
(b)
However if required, Customers
can seek limited further support via link on the Election
Manager dashboard but
only after a reasonable effort to read and study the help manual
and setup
hints provided. If excessive support is required from BigPulse
staff then
BigPulse reserves the right to charge an extra support fee. (If
you are not
confident to use BigPulse Basic, prepaid, self-managed service
then you should
consider using our BigPulse Advanced, fully-managed
Service.)
(c)
Telephone support is not included
in the Service. You agree not to attempt to seek instructions
from BigPulse by
telephone. The insecure nature of phone support is inconsistent
with the
BigPulse secure project management protocol.
(d) You
agree that BigPulse may
charge additional fees if you require access to our Support
Services or if, in
BigPulse's assessment, the amount of support required is
excessive relative to
the Fee paid.
(e) You
acknowledge and agree that
You are fully responsible for the configuration and management
of your Polls.
BigPulse shall not be liable for any loss or damages resulting
from operator
error, misconfigurations or misunderstanding in the use of the
Service.
5. CUSTOMER’S ACKNOWLEDGEMENTS AND OBLIGATIONS
5.1 The Customer
acknowledges and agrees:
(a) Proper Intent: The BigPulse Basic ElectionManager contains
many innovations
and trade secrets. Access to the Election Manager is provided on
the
understanding that the Customer, and anyone the Customer allows
to access the
Election Manager, has a genuine interest in using the Service.
The Customer
agrees not to access the Election Manager for the purpose of
assisting actual
or potential competitors of BigPulse.
(b) BigPulse Basic
Services are provided on a
non-exclusive basis and as such the Services may be licensed by
us to third
parties;
(c) You have no
Intellectual Property Rights in
the Software and/or the Materials except as otherwise provided
for in this
Agreement;
(d) BigPulse may from
time to time, without the
Customer's prior consent issue Updates and/or New Releases that
change, add or
delete the functions, features, performance or other
characteristics of the
BigPulse Basic Services but in a manner intended to improve the
Service;
(e) The Customer will
ensure that the BigPulse
Basic Services are at all times protected from access, use or
misuse and damage
and destruction by any person not authorized by BigPulse;
(f) The Customer may
send out voting links to
Customer members from BigPulse Basic via the BigPulse email
servers, however
BigPulse has no control over the delivery or security of voting
links sent by
email after they leave the BigPulse servers.
6. CONDITIONS OF USE
6.1 The Customer
further acknowledges and agrees:
(a) The Election will be used for the Customer’s use only and
the Customer
agrees not to provide people outside of its own organization
access to its
BigPulse Basic Election Manager. The Customer Election Manager
Service is not
to be used to operate elections on behalf of any other
organization unless it
has obtained prior written agreement from BigPulse.
(b) The Customer will
make all reasonable efforts
to avoid, or when necessary remove, any, postings or comments in
its Ballots
that do not comply with the BigPulse site Terms and Conditions and in
particular any material that is hateful, sexist, racist,
defamatory, containing
profanities, inciting violence or infringing any intellectual
property rights
or is otherwise contrary to applicable laws.
(c) In the case of
Ballots involving the
submission of comments from the Customer’s members or the public
that may be
published, the Customer is fully responsible for the moderation
and editing of
these comments., BigPulse accepts no responsibility or liability
for any
errors. The Customer agrees to check its Elections regularly for
errors,
illegal or inappropriate postings and to promptly remove the
same.
(d) The Customer indemnifies BigPulse against all claims,
actions, suits,
liabilities, costs and expenses incurred on any account by
BigPulse as a result
of any illegal use of data files, email lists, postings,
comments or material
that is published in it Ballots and any breach of its
representations and
warranties herein.
(e) BigPulse reserves
the right to delete any
Ballots or remove from any Ballots any postings or material that
may contain
material considered to be offensive or in violation of our site
Terms and
Conditions. Ballots inviting material of a pornographic nature
or contrary to
applicable laws or standards will be deleted.
(f) In the case of
some public election
applications You agree that BigPulse may include the following
disclaimer at
the bottom of the page in Customer elections: "No representation
of any
fact is made on this Election which contains information posted
by users.
Whilst the Election is checked for errors no warranty as to
accuracy of any
material can be given."
(g) The Customer
agrees to respect, at all times,
the privacy of all BigPulse users and will not attempt to use
its access to
BigPulse Basic Services in a manner that may interfere with the
privacy of any
users of the BigPulse service or people voting in the Customer's
Elections or
records of any other BigPulse customer.
(h) The Customer
agrees not to upload to the
Election Manager or send to BigPulse or use the Software for any
data lists
including emails lists that cannot be legally used with its
Elections
(i) The Customer
agrees not to unfairly blame
BigPulse or cause harm to BigPulse's reputation for any mistakes
or events
impacting the performance of the Ballots where such mistakes or
events are
beyond the control of BigPulse and particularly for any errors
or omissions
caused by the Customer including the Customer's failure to
properly test
Ballots or errors in data sent to BigPulse or any failure of the
Customer to
securely protect its sign-in details used for accessing the
Software from
unauthorized persons and malware on the Customer's computers.
(j) Where a third party has referred You to us in a marketing or
sales
capacity, BigPulse may share with them a part of the fee we
receive from the
Customer at no extra cost to the Customer.
(k) BigPulse may, in
its sole discretion,
terminate this Agreement or terminate or suspend or partially
suspend the
Customer's access to BigPulse Basic Services, the Election
Manager and Software
by email notice to the Customer at any time if the Customer
breaches this
Agreement and particularly if BigPulse has reasonable grounds to
suspect the
Customer has used a member list illegally or has initiated or
encouraged any
form of vote rigging or attempted to misrepresent the vote
counts in any
Ballot. If BigPulse terminates this Agreement or suspends the
Customer’s access
pursuant to this clause, the Fee paid shall not be refunded.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Except as
otherwise provided for in this
Agreement, the Customer acknowledges and agrees that:
(a) BigPulse is the owner of all
Intellectual
Property Rights in BigPulse Basic Services, and that BigPulse
reserves all
rights, title and interest in and to BigPulse Basic Services
and all
Intellectual Property Rights and Moral Rights in them. Except
as otherwise
provided for herein, the Customer is not permitted to copy,
modify, or exploit,
in any manner or form, any proprietary technology of BigPulse
without the
express written consent of BigPulse; and
(b) No
right, title or ownership
interest in or BigPulse Basic Services provided under the
Agreement is granted,
assigned or transferred to You under or in connection with the
Agreement; and
(c) You
must not at any time or in
any way indicate ownership of or any right to BigPulse Basic
Services and must
not contest the right of BigPulse to the use of the same; and
(d) The
unauthorized disclosure, use
or copying of BigPulse Basic Services provided under the
Agreement may cause
BigPulse serious financial loss. Accordingly, if there is any
unauthorized
disclosure, use or copying of any Intellectual Property Rights
in the BigPulse
Basic Services, or Materials provided under the Agreement, the
Customer agrees
that BigPulse will have the right to seek injunctive or other
equitable relief.
8. DATA OWNERSHIP, VOTE DATA, DATA DELETION, DATA SECURITY
AND COMPLIANCE
8.1A Data
Ownership
Subject to the application of any law to the contrary the
Customer retains
ownership rights in the data harvested from your Elections.
8.1B Vote Data
Duly considering its obligations under Section 9.1(f) of this
Agreement, the
Customer acknowledges and agrees that BigPulse may store the IP
address and
browser signature with votes submitted by End Users and place
session cookies
or other web technologies on the device of the End User in a
manner that is
linked to the Personal Data of the End User and the conditions
there of are
disclosed in our site privacy agreement and available here: https://www.bigpulse.com/static/privacy.html.
8.1C Data Deletion
(iii) If
You delete Your account, all
Your Elections and Data
(Personal and
de-linked) would be permanently deleted. The only data that we
would continue
to hold after your account has been deleted is contact
information supplied by
You in Your account profile, any billing history and invoices.
(iv) You
agree that BigPulse does not
accept liability for the security of Personal Data held for more
than 30 days after
the close of Your Election.
(iv) You
agree that Personal Data
attached to voting results will
be
de-linked by BigPulse 30 days after the close of Your Election.
This means that
the End Users personal data will be deleted but the result of
their vote may
stay recorded.
(vi)
Using the software you can download Personal Data onto
your chosen
storage device at anytime up to 30 days after the close of Your
Election. BigPulse
accepts no liability for any data that You download. After 30 days if you have not
already deleted Personal
Data from Your account, BigPulse
will automatically de-link
Personal Vote
Data as outlined in 8.1C(iv)
(iv) In
the absence of any earlier
instruction to delete Personal Data, 30 days after your election
has closed
BigPulse automatically deletes
all
Personal Data or
your BigPulse Election
Manager account has been inactive for 60 days or more. When
BigPulse deletes
Personal Data, it may or may not delete the vote data harvested
from the End
Users who participated in your Elections in which case this vote
data (which
may include IP address and browser signature) will be de-linked
from any Personal
Data after the Personal Data has been deleted.
You agree that BigPulse shall not be responsible for any
losses
occasioned to You by deletion of any
such data.
8.2 Data Security
(a) BigPulse's Security Measures. BigPulse may update or modify
the Security
Measures from time to time provided that such updates and
modifications do not
result in the degradation of the overall security of the
Services.
(b) Security Compliance by BigPulse Staff. BigPulse will take
appropriate steps
to ensure compliance with the Security Measures by its
employees, and
contractors to the extent applicable to their scope of
performance, including
ensuring that all persons authorized to process Personal Data
have committed
themselves to confidentiality or are under an appropriate
statutory obligation
of confidentiality.
(c) Client-Side Security Management Tools Provided by BigPulse.
The BigPulse
Service includes various services to help the Customer control
and manage the
security of Personal Data.
(d) BigPulse’s Security Assistance. BigPulse will (taking into
account the
nature of the processing of Personal Data and the information
available to
BigPulse) assist the Customer in ensuring compliance with any of
the Customer’s
obligations in respect of the security of Personal Data and
Personal Data
breaches, 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;
(ii) complying with the terms of Section 8.3 (Data Incidents);
and
(iii) providing the Customer with the Security Documentation in
accordance with
Section 8.5(a) (Reviews of Security Documentation).
8.3 Data Incidents
(a) Incident Notification. If BigPulse becomes aware of a Data
Incident,
BigPulse will:
(i) notify the Customer of the Data Incident promptly and
without undue delay;
and
(ii) promptly take reasonable steps to minimize harm and secure
the Customer
Data.
(b) Details of Data Incident. Notifications made pursuant to
this section will
describe, to the extent possible, details of the Data Incident,
including steps
taken to mitigate the potential risks and steps BigPulse
recommends the
Customer take to address the Data Incident.
(c) Delivery of Notification. Notification(s) of any Data
Incident(s) will be
delivered to the Notification Email Address. The Customer is
solely responsible
for ensuring that the Notification Email Address is current and
valid.
(d) No Assessment of Customer Data by BigPulse. BigPulse will
not assess the
contents of Customer Data in order to identify information
subject to any
specific legal requirements. The Customer is solely responsible
for complying
with incident notification laws applicable to Customer and
fulfilling any third
party notification obligations related to any Data Incident(s).
(e) No Acknowledgement of Fault by BigPulse. BigPulse’s
notification of or
response to a Data Incident under this Section 8.3 (Data
Incidents) will not be
construed as an acknowledgement by BigPulse of any fault or
liability with
respect to the Data Incident.
8.4 Customer’s Security Responsibilities and Assessment
(a) Customer’s Security Responsibilities. The Customer agrees
that, without
prejudice to BigPulse’s obligations under Section 8.2(a)
(BigPulse’s Security
Measures) and Section 8.3 (Data Incidents) that the Customer is
solely
responsible for its use of the Services, including:
(i) making appropriate use of the Services described in Section
8.2(c)
(Client-Side Security Management Tools Provided by BigPulse) to
ensure a level
of security appropriate to the risk in respect of the Customer
Data;
(ii) securing the account authentication credentials, systems
and devices the
Customer uses to access the Services;
(iii) backing up its Customer Data; and
(iv) BigPulse has no obligation to protect Customer Data that
the Customer
elects to store or transfer outside of BigPulse’s system (for
example, offline
or on-premise storage), or enforce the Customer’s proper use of
the Client-Side
Security Management Tools Provided by BigPulse described in
Section 8.2(c) to
protect Customer Data.
(b) Customer’s Security Assessment
(i) The Customer is solely responsible for reviewing the
Security Documentation
and evaluating for itself whether the Services, the Security
Measures and
BigPulse’s commitments under Section 8.2 (Data Security) will
meet the
Customer’s needs, including with respect to any security
obligations of the
Customer under the European Data Protection Legislation and/or
Non-European
Data Protection Legislation, as applicable; and
(ii) The Customer acknowledges and agrees that (taking into
account the state
of the art, costs on implementation and the nature, scope,
context and purposes
of the processing of the Personal Data as well as the risks to
individuals) the
Security Measures implemented and maintained by BigPulse as set
out in Section
8.2(a) (BigPulse’s Security Measures) provide a level of
security appropriate
to the risk in respect of the Customer Data.
8.5 Reviews and Audits of Compliance
(a) Reviews of Security Documentation. On request BigPulse will
make available
for review by the Customer the Security Documents subject to the
Customer's
agreement to BigPulse's confidentiality and non-disclosure
terms.
(b) Customer’s Audit Rights
(i) If the European Data Protection Legislation applies to the
processing of
Personal Data, BigPulse will allow the Customer or an
independent auditor
appointed by the Customer (and approved by BigPulse) to conduct
audits
(including inspections but not access to source code and not
access to data
that is owned or related to other clients of BigPulse) to verify
BigPulse’s
compliance with its obligations under this Agreement in
accordance with Section
8.5(c) (Additional Business Terms for Reviews and Audits).
(ii) Notwithstanding anything to the contrary in this Agreement,
where BigPulse
is not a party to such agreement, BigPulse will be a third party
beneficiary of
Section 8.5 (Reviews and Audits of Compliance).
(c) Additional Business Terms for Reviews and Audits
(i) The Customer must send any requests for audits under Section
8.5(b)(i) to
the Security Email address as described in Section 8.9 (Data
Protection Team).
(ii) Following receipt by BigPulse of a request under Section
8.5(b)(i),
BigPulse and the Customer will discuss and agree in advance on:
(A) the reasonable date(s) of and security and confidentiality
controls
applicable to any review of the documentation under Section
8.5(b)(i); and
(B) the reasonable start date, scope and duration of and
security and
confidentiality controls applicable to any audit under Section
8.5(b)(i).
(iii) BigPulse may charge a fee (based on BigPulse’s reasonable
costs) for any
audit under Section 8.5(b)(i). BigPulse will provide the
Customer with further
details of any applicable fee, and the basis of its calculation,
in advance on
any such review or audit. The Customer will be responsible for
any fees charged
by any auditor appointed by the Customer to execute any such
audit.
(iv) BigPulse may object in writing to an auditor appointed by
the Customer to
conduct any audit under Section 8.5(b)(i) if the auditor is, in
BigPulse’s
reasonable opinion, not suitably qualified or independent, a
competitor of
BigPulse, or otherwise manifestly unsuitable. Any such objection
by BigPulse
will require the Customer to appoint another auditor or conduct
the audit
itself.
(v) The appointed auditor will sign a confidentiality agreement
approved by
BigPulse and returned to BigPulse before gaining access to any
Security
Documentation.
(vi) The auditor will be given access to the Security
Documentation, the
Software activity logs relevant to the Customer, any relevant
certifications
and evidence of compliance with the standards of those
certifications.
8.6 Compliance assistance
BigPulse will assist the Customer in ensuring compliance with
any obligations
of the Customer in respect of data protection impact assessments
and prior
consultation, including if applicable the Customer’s obligations
pursuant to
Articles 35 and 36 of GDPR, by providing the Client-Side
Security Management
Tools Provided by BigPulse in accordance with Section 8.2(c) and
the Security
Documentation in accordance with Section 8.5(a) (Reviews of
Security
Documentation).
8.7 Data subject rights; data export
(a) Access; Rectification; Restricted Processing; Portability.
During the applicable
License Subscription Period, BigPulse will, in a manner
consistent with the
functionality of the Services, enable the Customer to access and
amend Customer
Data, including via the deletion functionality provided by
BigPulse as
described in Section 8.1C (Data Deletion), and to export
Customer Data.
(b) Data Subject Requests
(i) Customer’s responsibility for request. During the applicable
Customer
access to BigPulse Basic if BigPulse receives any request from a
data subject
in relation to the Customer’s Personal Data, BigPulse will
advise the data
subject to submit his/her request to the Customer, and the
Customer will be
responsible for responding to any such request including, where
necessary, by
using the functionality of the Services.
(ii) BigPulse’s subject request assistance. BigPulse will assist
the Customer
in fulfilling any obligation to respond to requests by data
subjects, including
if applicable the Customer’s obligation to respond to requests
for exercising
the data subject’s rights laid down in Chapter III of the GDPR,
by:
(A) providing the Client-Side Security Management Tools Provided
by BigPulse in
accordance with Section 8.2(c); and
(B) complying with the commitments set out in Section 8.6
(Compliance
assistance) and Section 8.7(b)(i) (Customer’s Responsibility for
Requests).
8.8 Data centers and data transfers
(a) Data storage and processing facilities center information.
Information
about the locations of BigPulse’s data centers is available in
the Security
Documentation (as may be updated by BigPulse from time to
time).
(b) You agree to use only the secure transfer process provided
in the BigPulse
Software for transmitting Personal Data to BigPulse. BigPulse
does not accept
any responsibility for the security of the Customer's Data
files which are
transmitted as emailed attachments.
8.9 Data protection team
(a) BigPulse’s Data Protection Team. BigPulse’s Data
Protection Team can be
contacted using the support button or link provided in the
Software or by using
the Notification Email Address.
8.10 BigPulse’s Processing Records
If the GDPR applies to the processing of the Personal Data the
Customer
acknowledges that BigPulse is
required to:
(a) collect and maintain records of the name and contact details
of the
Customer’s data protection officer; and
(b) make such information available to the supervisory
authorities when
requested. Accordingly, the Customer will, where requested,
provide such
information to BigPulse via the BigPulse support service or
other means as may
be requested by BigPulse, and will ensure that all information
provided is kept
accurate and up-to-date.
9. PRIVACY AND CONFIDENTIAL INFORMATION
9.1 The Parties
acknowledge and agree as follows:
(a) BigPulse Basic Services contain Confidential Information
belonging to BigPulse;
(b) Each Party must only use the other Party’s Confidential
Information for the
purpose of performing the obligations under the Agreement, or if
the recipient
is a professional adviser, the professional adviser may use the
Confidential
Information for purposes connected with advising on or reporting
on the
Agreement.
(c) Each Party must use any Personal Data of which it becomes
aware in
connection with the Agreement in accordance with the law and the
terms of this
Agreement;
(d) BigPulse agrees to treat as confidential any information
that the Customer
identifies in writing or electronically to BigPulse as
confidential prior to
providing it to BigPulse. If the Customer identifies any aspect
of its
Elections as confidential, then it agrees to bind all potential
Election
recipients on its voter or member lists, administrator lists and
test lists to
treat it as confidential.
(f) The Customer warrants that (i) it has an existing
relationship (an
employment relationship or other ongoing contractual
relationship) with each
End User, and (ii) each end user is an adult; and (iii) the use
of the BigPulse
Basic Services arises out of that existing relationship, and
(iii) that it will
provide each End User invited to use the BigPulse service with
an explanation for
the invitation.
(g) The Customer may not use BigPulse’s trademarks, logos, get
up or other
branding without obtaining BigPulse’s express written consent.
The Customer may
refer to its Polls as the Customer name BigPulse polls.
(h) In the unlikely event the Customer becomes aware of an
actual or potential
vulnerability in the BigPulse Basic software the Customer agrees
not to attempt
to exploit the vulnerability and to immediately report the
matter to BigPulse
and only to BigPulse, keeping the matter confidential at all
times. BigPulse
agrees to immediately investigate any reported vulnerabilities
and take
whatever action it deems necessary and technically practical to
maintain a
secure service for all its Customers.
(i) BigPulse is permitted to disclose to others that the
Customer uses the
BigPulse Basic Services.
9.2 This clause 9 survives expiry or termination of this
Agreement.
10. PROCESSING OF DATA
10.1 If the European
Data Protection Legislation
applies to the processing of Personal Data, the parties
acknowledge and agree
that:
(a) BigPulse is a processor, as applicable, of that Personal
Data (Personal
Information) under the European Data Protection Legislation.
(b) The Customer is a controller or processor, as applicable, of
that Personal
Information under the European Data Protection Legislation.
(c) Each party will comply with the obligations applicable to it
under the
European Data Protection Legislation with respect to the
processing of that
Personal Data.
(d) If the European Data Protection Legislation applies to the
processing of
Personal Data and the Customer is a processor, the Customer
warrants to
BigPulse that the Customer’s instructions and actions with
respect to that
Personal Data, including its appointment of BigPulse as another
processor, have
been authorized by the relevant controller.
(e) If EU or EU Member State law to which BigPulse is subject
requires other
processing of Personal Data by BigPulse, then BigPulse will
inform the Customer
(unless that law prohibits BigPulse from doing so on important
grounds of
public interest) via the Notification Email Address.
10.2 The subject matter and details of the data processing are:
(a) The duration of the Processing is
the License
Period which ends at close of the Election plus the period
from expiry of such
License until deletion of all Customer Data by BigPulse in
accordance with this
Agreement.
(b) BigPulse will
process the Personal Data
submitted for the purposes of providing the BigPulse Service.
(c) Personal Data submitted, stored,
sent or received
by the Customer or End Users via the BigPulse Basic Service
may include the
following categories of data: user IDs, user email addresses,
documents, images
and other data. Vote date/time, IP addresses, browser
signatures and comments
submitted by End Users is not considered Personal Data after
the time it has
been de-linked from any Personal Data.
(d) Personal Data submitted, stored, sent or received via the
BigPulse Basic
Service may concern the following categories of data subjects:
End Users.
11. WARRANTIES, LIABILITY AND INDEMNITIES
11.1 The Parties
Agree as follows:
(a) Except as otherwise provided in this Agreement, all
warranties, terms or
conditions relating in any way to the subject matter of this
Agreement other
than non-excludable warranties, terms or conditions implied by
statute or
applicable law are expressly excluded.
(b) BigPulse represents and warrants that it will carry out the
services
competently and professionally having regard to the terms of
this Agreement.
The Customer warrants that it has not relied upon any warranty
or
representation made by BigPulse other than as set out in this
Agreement.
(c) Where statute or applicable law implies any term, condition
or warranty,
and that statute or applicable law prohibits provisions in a
contract excluding
or modifying the application of or liability under such term,
condition or
warranty (a “Non-Excludable Term”), such Non-Excludable Term is
included in
this Agreement. However, BigPulse’s liability for any breach of
a Non-Excludable
Term is, if permitted by the statute or applicable law, limited
at the option
of BigPulse to the replacement of the good or resupply of the
service or to
payment of the cost of replacement or resupply.
(d) Despite anything else in this Agreement except (c) above and
to the fullest
extent permitted by law, BigPulse excludes all liability for:
(i) indirect,
special, incidental and consequential losses and damages; and
(ii) loss or
damage directly or indirectly resulting from business
disruption, loss of revenue,
loss of profits, failure to realize expected profits or savings,
damage to
systems or data and commercial or economic loss of any kind,
whether in an
action for tort (including negligence) or contract or otherwise,
arising in any
way from this Agreement or the relationship created by it, even
if BigPulse has
been advised of the possibility of such loss or damage.
(e) To the extent permitted by Law, BigPulse will not be liable
for any loss,
damage or expense which the Customer or its members may incur as
the result of
any change, addition, deletion, error correction, patch, Update
or New Release
in any circumstances.
(f) BigPulse shall not be liable for any malfunction or virus in
the
computer(s) or Internet connection(s) used by the Customer or
its members or
users to access its Election Manager or Elections
(g) BigPulse is not responsible for the content posted on the
Customer
Elections and shall not be liable for any losses or damages in
connection with
such content and the Customer indemnifies BigPulse against
losses and damages
suffered by BigPulse arising from the Customers content.
(h) BigPulse may at times provide support or consulting services
to the
Customer, which are beyond the scope of this Agreement, for the
purpose of
assisting the Customer in its use of The Services. Such services
are provided
on an "AS IS" basis, without any representations or warranties
to the
extent legally permitted. BigPulse accepts no liability for its
efforts to
assist the Customer in this manner.
(i) Despite anything else in this Agreement except (c) – (h)
above and to the
extent that BigPulse’s liability is not otherwise excluded by
the other terms
of this Agreement, BigPulse’s maximum aggregate liability for
losses, costs,
claims and damages under this Agreement, whether in an action
for contract or
tort (including negligence) or otherwise, arising in any way out
of this
Agreement or the relationship created by it is limited to an
amount equal to
the total fees paid to BigPulse by the Customer in the 12 months
immediately
preceding the relevant loss, cost, claim or damage.
(j) Each Party must make every effort to mitigate any loss,
damage or expense
that it may suffer arising out of or in connection with BigPulse
Basic
Services, this Agreement or the relationship created by it.
(k) The Customer indemnifies BigPulse and its officers, agents
and employees
from and against all claims, losses, demands, actions and
damages caused by the
Customer or arising directly or indirectly from the Customer’s
use of the
BigPulse Basic Services, a breach of this Agreement by the
Customer, from the
negligence, acts or omissions of the Customer or otherwise in
relation to the
performance of this Agreement.
11.2 This clause 11 survives expiry and termination of this
Agreement.
12. DISPUTE RESOLUTION
(a) In the event of a
dispute arising between the
parties in respect of any right or obligation under this
Agreement, each party
covenants with the other in good faith to take all steps
necessary to attempt
to resolve the dispute.
(b)Any dispute that
relates to Election results
must be lodged within 21 days after close of the Election and
before deletion
of Vote data.
(c) In the event that
the parties are unable
between themselves to resolve a dispute within a reasonable
period having regard
to the nature of the License and the dispute, then either party
may apply for
Dispute Resolution.
13. FORCE MAJEURE
Neither party will be
liable for or will be
considered to be in breach of or in default under this agreement
on account of,
any delay or failure to perform any obligation as required by
this Agreement
(excluding any obligation to pay fees) as a result of any causes
or conditions
that are beyond such Party's reasonable control and that such
Party is unable
to overcome through the exercise of commercially reasonable
diligence.
14. SUCCESSORS
The parties agree
that the provisions of this
agreement shall be binding upon and shall inure to the benefit
of the parties
hereto, their heirs, administrators, successors and assigns.
15. SEVERABILITY
If any term, clause
or provision hereof is held
invalid or unenforceable by a Court of competent jurisdiction,
such invalidity
shall not affect the validity or operation of any other terms,
clause or
provision and such invalid term, clause or provision will be
severed from this
Agreement.
16. WAIVER
No waiver by either
party of any default shall be
deemed as a waiver of prior or subsequent default of the same or
other
provisions of this Agreement.
17. ASSIGNMENT
The Customer may not
assign or transfer this
Agreement or the rights and obligations thereunder to any third
party without
the express written approval of BigPulse. BigPulse reserves the
right to assign
or transfer this Agreement.
18. ENTIRE AGREEMENT
(a) This document
(including Special Conditions,
if any) constitutes the entire understanding of the parties and
revokes and
supersedes all prior agreements between the parties and is
intended to be the
final agreement.
(b) Subject to rights existing under relevant legislation, any
condition,
representation or warranty that would otherwise be implied in
this Agreement is
hereby excluded.
19. RELATIONSHIP OF PARTIES
The relationship
between the parties is one of
Customer and service provider and this agreement shall not be
deemed to be one
of agency, contractor, employment, joint venture, or
partnership.
20. PAYMENTS &
REFUNDS
20.1 Payment Methods
BigPulse Basic
accepts Credit and Debit Cards
(Visa, Mastercard).
20.2 Refunds
(a)No
refunds
allowed except where required by law.
(b) At BigPulse's
discretion refunds might be
allowed if requested before the Election has started. Any
refunds allowed will
be minus any bank charges plus an administrative fee up to a
maximum of USD
100.
21. Governing Law & Jurisdiction
With the exception of residents of North
America, the laws governing
this contract shall be the laws of the State of New South Wales,
Australia and
the parties agree to submit to the jurisdiction of the courts
and tribunals of
that State.
For residents
of
North America the laws governing this contract shall be
the laws of the
State of California and the parties agree to submit to the
non-exclusive
jurisdiction of the courts of the State of California.