GENERAL TERMS AND CONDITIONS LEADSTREET (POCKET KNIFE)

Leadstreet BV, a private limited company organized and existing under the laws of Belgium, with registered office at 8572 Anzegem, Juliaan Claerhoutstraat 13 and registered in the Register of Companies under number 0556.843.742 (hereinafter “Leadstreet”), is a software firm and partner of HubSpot, active in the design, development and operation of software and the thereto related services and, in this respect, the provision of licenses to the software product ‘Pocket Knife’, an Add On to the ‘HubSpot Platform’.

The customer may be any natural person or legal entity which enters into a contractual relationship of whichever nature with Leadstreet in connection with his or its trading, business, artisanal or professional activity (hereinafter the “Customer”).

Article 1        – Definitions

Except to the extent expressly provided otherwise, all words and definitions defined in these Terms and Conditions shall bear the following meaning:

Article 2        – Application

2.1    The conclusion of an agreement with Leadstreet shall entail the full and unconditional acceptance of these Terms and Conditions.

2.2    Leadstreet reserves the right to revise these general Terms and Conditions at any time in accordance with economic and legal needs. The revised terms and conditions shall be communicated to the Customer and shall automatically enter into force after a term of 10 (ten) Business Days. The Customer may terminate the Agreement with Leadstreet, without payment of any compensation and with immediate effect, provided that an e-mail is sent to Leadstreet within the term of 10 (ten) Business Days after the revised general terms and conditions have been notified to the Customer.

Article 3        – Agreement

3.1    An Agreement shall be concluded by and between

3.2     The Terms and Conditions contain the general contractual framework for the Services that may be provided by

• A right to use the Software Product (the “Software Product License”);
• A right to receive Services in relation to the Software Product.

3.3     Each Online Form mentions the specific terms agreed upon with regard to the relevant subject and applies in addition to these Terms and Conditions. In the event of a conflict or a conflict of interpretation between these Terms and Conditions and an Online Form, the provisions of the Online Form will prevail.

• – Setup of the Software Product

4.1     The setup of the Software Product shall be performed by the Customer in accordance with the instructions provided on the Website, and shall be the sole responsibility of the Customer.

4.2     Any issues that arise during the setup of the Software Product may be reported to Leadstreet via the support form on the Website.

4.3     The Customer acknowledges and agrees that Leadstreet will set up, monitor and maintain the infrastructure with third party service providers, such as, for example, Google Cloud.

Article 5        – Fees

5.1     The Fees for the Software Product License and Services provided under these Terms and Conditions are listed in the Order Form and fall due on the agreed payment milestones.

5.2     Leadstreet will not charge any additional fees for Updates or Upgrades supplied by Leadstreet for the Software Product during the Term. The cost for the use of such Upgrades and Updates is included in the Fees.

5.3    The Customer expressly agrees that Leadstreet is entitled, on a yearly basis, to proportionally adjust (in plus or in minus) the agreed Fees on the basis of the following formula:

p = p0 [a(S/S0) + b], whereby:

-        p   = adjusted fee

-        p0 = basic fee (as set out on the date of this Agreement)

-        S   = the Agoria Digital-reference wage costs of the month preceding the adjustment of the fee

-        S0 = the Agoria Digital-reference wage costs of the month preceding the date of this Agreement

-        a   = 80%

-        b   = 20%

If applicable, Leadstreet shall inform the Customer of the fee adjustment in writing.

Article 6        – Payment terms and taxes

6.1    Unless expressly agreed otherwise between the parties, an upfront payment is always required prior to the start of the Initial Period and the start of any subsequent periods of the Agreement.

6.2     Any payments made by the Customer to Leadstreet are non-refundable under any circumstances.

6.3     If a payment upon invoice is agreed upon by the parties, Leadstreet’s invoices must be paid by the Customer within 10 (ten) Business Days, starting on the invoice date to the account number as mentioned on the relevant invoice.

6.4    In case of any overdue payment, the relating invoice will, without prior notice of default, bear interest at the rate of 1% per month, as well as a contractual indemnity set at 10% of the total amount invoiced, with a minimum of 300,00 EUR (three hundred Euros).

• In addition, in case of any overdue payment:

• Leadstreet may suspend the provision of Services and downgrade the package to the ‘basic’ package of the Software Product if any amount due to be paid by the Customer is overdue and Leadstreet has given to the Customer at least 15 (fifteen) Business Days' written notice following the amount becoming overdue of its intention to suspend the Services on this basis;

• Leadstreet can pursue any other remedies available under applicable law.

6.6    Unless explicitly agreed otherwise, all amounts are net of taxes. All taxes which are or may be levied in the future by a government authority in respect of the Services provided by Leadstreet under these Terms and Conditions, will be borne by the Customer.

6.7     Customer agrees to send documentary evidence to Leadstreet that the Customer has paid all local taxes. This evidence will be sent to Leadstreet within 30 (thirty) Business Days after Leadstreet’s written request.

Article 7        – Right of use

7.1    

Leadstreet grants to the Customer a worldwide, non-exclusive and non-transferable right to use the Software Product in accordance with these Terms and Conditions and the Documentation and for the Customer's own internal purposes and business operations exclusively.

7.2    

The Customer may not:

• copy, translate, modify, adapt, decompile, disassemble, reverse engineer the Software Product in whole or in part, except as and to the extent specifically authorized by applicable law;

• create derivative works on the basis of the Software Product, modify the design of the databases that underlie the Software Product;

• transfer the Software Product as a whole or in parts to the IT-environment of third parties without Leadstreet’s written consent;

• at any time deposit as security, assign, sub-license, sublease, sub-host, sell or give away control of any portion of the Software Product, without Leadstreet’s written consent.

7.3    

Nothing in these Terms and Conditions will create the transfer of title or (Intellectual) Property Rights to the Software Product and related objects, Documentation and related assets by Leadstreet to the Customer.

7.4    

Leadstreet is authorized to take technical measures to protect the Software Product against unauthorized use and/or copying.

Leadstreet is authorized to replace or modify the source code of the Software Product in order to adjust it to the evolution of the Software Product.

Leadstreet is authorized to apply (and push) Updates and Upgrades to the Software Product, without being obliged to do so.

7.5     The Customer must not use the Software Product in any way that is unlawful, illegal, or fraudulent.

7.6     The Customer must not use the Software Product in any way that causes, or may cause, damage to the Software Product.

Article 8        – Customer obligations

8.1     The Customer is required to properly fulfil its contractual obligations to Leadstreet and to provide Leadstreet with the correct and complete information necessary to enable Leadstreet to calculate a price in accordance with the actual cost price of the Services and to execute the Agreement.

• In order to respect the provision of Services under these Terms and Conditions, the Customer will:

• take full responsibility for keeping third party hardware and software versions under the control of the Customer, aligned to the minimum System Requirements;

• co-operate fully with Leadstreet in diagnosing Incidents, notifying Incidents to Leadstreet as they arise(s) and supplying Leadstreet with documented, reproducible examples of such Incidents through the support form on the Website (https://pocketknife.leadstreet.be/support);

• not request, permit or authorize anyone other than Leadstreet to provide any Services in respect of the Software Product without the written authorization of/or as suggested by the latter.

Article 9        – Maintenance and Support Services

9.1     Leadstreet shall provide the Maintenance and Support Services on a best effort basis during the term of the Agreement as stated in the Online Form.

9.2     Leadstreet shall maintain the availability of the Software Product to a sufficient level during the term of the Agreement as stated in the Online Form.

9.3    The Customer agrees that all contacts in relation to the Software Product and these Terms and Conditions will be communicated through e-mail via the support form or the live chat on the Website. Only when expressly agreed with the Customer in the Online Form, Leadstreet also provides telephone support.

9.4    Leadstreet reserves the right to limit its Maintenance and Support Services to the most recent versions of operating systems only, typically supporting the latest two stable major operating system versions.

Article 10     – Suspension

10.1   If any data or other input required from the Customer for the provision of the Services is not available to Leadstreet, not available in good time, or if the Customer does not fulfil its contractual obligations in any other way, Leadstreet will be entitled to suspend the execution of Services under these Terms and Conditions and/or charge extra expenses in accordance with the then current rates of Leadstreet.

Article 11     – Excluded matters

11.1   Leadstreet will have no obligation to provide Services for:

• the Software Product that has been modified, repaired altered or merged with unauthorized software by the Customer or third parties;

• use of the Software Product other than in accordance with the Documentation and/or for a purpose for which it was not designed;

• Customer’s failure to implement Leadstreet’s instructions in respect of solutions to Defects previously advised by Leadstreet.

Any service which is provided by Leadstreet as a result of any of the foregoing will be considered as additional Services out of scope and charged in accordance with the then current rates of Leadstreet.

Article 12     – Term and termination

12.1  This Agreement shall come into force upon the effective date and will remain in force and effect for one month or one year as stated in the Online Form (the “Initial Period”). Subsequently the Initial Period will be tacitly renewed for subsequent periods of the same term unless the Agreement is terminated by one of the parties upon written notice to the other party before the end of the then current period.

12.2  Despite the above, the parties will be entitled, without prejudice to their other rights or remedies, to terminate the Agreement at any time and with immediate effect by notice by e-mail to the other party if (“Termination for cause”):

• said party is in breach of any of its obligations under the Agreement and either that breach is incapable of remedy or the concerning party has failed to remedy that breach within 30 (thirty) days after receiving written notice requiring it to do so; or

• a court order is made for the winding up of said party;

• an effective resolution is passed for the winding up of said party (other than for the purposes of amalgamation or reconstruction);

• said party has a receiver, manager, administrative receiver or administrator appointed in respect of it; or

• said party is unable to pay its debts as they fall due or its assets are worth less than its liabilities on a balance sheet basis.

Such immediate termination of the Agreement will automatically cause the immediate termination of the Online Form.

12.3   Upon early termination of the Agreement (i) by Leadstreet due to the Customer’s breach, or (ii) by the Customer in breach of the Agreement, Leadstreet may require the payment of damages proportionate to the remaining Fees, without prejudice to any other indemnity exceeding this amount.  

12.4   Upon expiry or termination of the Agreement:

• the Customer’s right to receive and use the Software Product and/or Services under the Agreement will cease automatically;

• each party will immediately return to the other all property and materials belonging to that party, including all Confidential Information;

• all amounts due to Leadstreet hereunder will be paid immediately.

12.5   Any termination of the Agreement will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of these Terms and Conditions which are expressly, or by implication, intended to come into force or continue in force on or after termination.

Article 13     – Customer Data

13.1  The Customer hereby grants to Leadstreet a non-exclusive license to copy, distribute and adapt the Customer Data to the extent reasonably required for the performance of Leadstreet's Services and the exercise of Leadstreet's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers in this respect.

13.2   The Customer warrants to Leadstreet that the Customer Data will not infringe the Intellectual Property Rights of any third party, and will not breach the provisions of any law, statute or regulation.

Article 14     – Intellectual Property Rights

14.1   All Intellectual Property Rights in either party’s materials, information or data provided by that party to the other party under these Terms and Conditions will be and remain vested in that party. The other party will have no rights in respect thereof save for any rights granted to it by that party under these Terms and Conditions.

14.2   All Intellectual Property Rights in the Software Product and all signs and logos used in the Software Product will be and remain vested in Leadstreet at all times. The Customer will have no rights in respect thereof save for any rights granted to it by Leadstreet under these Terms and Conditions.

Article 15     – Force majeure

15.1   If the performance of the Agreement cannot take place due to a force majeure event, the failing party shall inform the other party within a period of 5 (five) Business Days after the commencement of the force majeure event. A force majeure event is any cause beyond the reasonable control of such party that prevents that party from performing under the Agreement, temporarily or permanently, even if the cause was foreseeable. Without being exhaustive, a force majeure event includes: exhaustion of the reserves, delays or non-deliveries by a party’s suppliers, machine failure, strike or lockout, fire, uprising, war, epidemic, flood, electrical, computer, internet or telecommunications failures, government related decisions and interventions, and third party errors and delays.

15.2   In case the force majeure event causes an interruption in performance, the term of delivery and the performance of obligations of the party concerned shall in any event be suspended for the duration of the interruption, increased by the time it takes to restart the Services. The parties will use best efforts to limit the consequences of the force majeure event.

15.3   If the force majeure event lasts longer than 20 (twenty) Business Days, each party shall be entitled to dissolve the Agreement without the intervention of the courts, without the other party being obliged to pay any compensation to the first party. With the exception of the Services which have already been delivered by Leadstreet prior to the force majeure event, which shall be at the expense of the Customer.     

Article 16     – Confidentiality obligations

16.1   The parties acknowledge that in the course of this Agreement, the parties may become privy to Confidential Information which is disclosed by the other party.

16.2   The Receiving Party will keep all Confidential Information confidential. The Receiving Party will not disclose Confidential Information to any other person and will not use Confidential Information for any purposes other than for the purposes of this Agreement. The Receiving Party will safeguard the Confidential Information to the same extent that it safeguards its own confidential and proprietary information and in any event with not less than a reasonable degree of protection.

16.3   The Receiving Party agrees to disclose Confidential Information only on a "need-to-know" basis to employees and independent contractors.

16.4   The Receiving Party agrees that before any of its subcontractors and/or agents may be given access to Confidential Information, each such subcontractor and/or agent will agree to be bound by a confidentiality undertaking comparable to the terms of this Agreement. Notwithstanding the return of any Confidential Information, the Receiving Party and its subcontractors and/or agents will continue to hold in confidence all Confidential Information, which obligation will survive any termination of this Agreement.

16.5   In the event the Receiving Party is requested or required to disclose, by court order or regulatory decision, any of the other party’s Confidential Information, the Receiving Party will provide the other party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. The Receiving Party will furnish only that portion of the Confidential Information which is legally required.

16.6  Within 10 (ten) Business Days upon (i) the termination of this Agreement or (ii) the Disclosing Party’s reasonable earlier request at any time, the Receiving Party will destroy or return to the Disclosing Party (at its option) any and all of Disclosing Party’s Confidential Information and will purge all copies and traces of the same from any storage location and/or media.

16.7   Confidential Information will not include any information that the Receiving Party can establish:

• prior to receipt from the Disclosing Party, in the possession of or rightfully known by the Receiving Party without an obligation to maintain its confidentiality;

• at the time of use or disclosure by the Disclosing Party was generally known to the public without violation of this Agreement and not as a result of any action or inaction of the Receiving Party;

• is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or

• is independently developed by the Receiving Party without the participation of employees or other individuals who have had access to Confidential Information of the Disclosing Party.

Article 17     – Publicity

17.1   Neither party may make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

17.2   Leadstreet will however always be allowed to communicate that the Customer is a customer of Leadstreet on its commercial documentation, without having to obtain the Customer’s prior written consent thereto.

Article 18     – Data protection

18.1   Each party shall, at all times, comply with its respective obligations under the General Data Protection Regulation 2016/679, as amended, and any further implementation or replacement of that law (“Data Protection Legislation”). The word "Process" and the expression "Personal Data", when used in this clause shall have the meaning assigned thereto in the Data Protection Legislation.

18.2  Leadstreet shall process Personal Data provided to it pursuant to these Terms and Conditions and the Processor Agreement (Annex I) in accordance with the Data Protection Legislation.

Article 19     – Warranties

19.1   Leadstreet warrants to the Customer that:

• Leadstreet has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

• Leadstreet will comply with all applicable legal and regulatory requirements applying to the exercise of Leadstreet's rights and the fulfilment of Leadstreet's contractual obligations;

• the Software Product will conform in all material respects with the Documentation:

• the Software Product will incorporate security features reflecting the requirements of good industry practice;

19.2   Leadstreet provides no other warranty. In particular, Leadstreet provides no warranties of any kind in relation to:

• the merchantability and/or fitness of the Software Product for a particular purpose;

• the compatibility of the Software Product with the software and/or the hardware of the Customer and/or any third-party;

• the expectation of the Customer that the Software Product will satisfy or may be customized to satisfy all or any of Customer’s specific requirements;

• the uninterrupted or error-free use of the Software Product by the Customer, regardless of whether such warranty would otherwise be imposed by contract, statute, course of dealing, custom and usage, or otherwise.

19.3   The Customer warrants to Leadstreet that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

19.4   All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

19.5   The Customer acknowledges that the Software Product is an Add On to the ‘Hubspot Platform’ and therefore the Software Product cannot function without a license of the Customer on the ‘Hubspot Platform’.

19.6   The Customer acknowledges that complex software is never wholly free from defects, errors and bugs, and subject to the other provisions of this Agreement, Leadstreet gives no warranty or representation that the Software Product will be wholly free from Defects.

19.7   The Customer acknowledges that complex software is never entirely free from security vulnerabilities, and subject to the other provisions of this Agreement, Leadstreet gives no warranty or representation that the Software Product will be entirely secure.

19.8   The Customer acknowledges that the Software Product is designed to be compatible only with that software and those systems specified as compatible in the Documentation, and Leadstreet does not warrant or represent that the Software Product will be compatible with any other software or systems.

Article 20     – Limitations and exclusions of liability

20.1   Nothing in this Agreement will:

• limit or exclude any liability for death or personal injury resulting from negligence;
• limit or exclude any liability for fraud or fraudulent misrepresentation;
• limit any liabilities in any way that is not permitted under applicable law; or
• exclude any liabilities that may not be excluded under applicable law.

20.2   Neither party shall be liable to the other party in respect of any loss of revenue or income, loss of use or production, loss of business, contracts or opportunities, loss or corruption of any data, database, special, indirect or consequential loss or damage.

20.3   The aggregate liability of Leadstreet to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amounts already invoiced and also paid under this Agreement in the 12 (twelve) months period preceding the commencement of the event or events.

Article 21     – Indemnity for breach of third party rights

21.1   Without prejudice to article 20 of these Terms and Conditions, Leadstreet will indemnify the Customer against any direct damages which may be awarded against it by an enforceable court decision, as a result of the Software Product being held to infringe an Intellectual Property Right of a third party, but only if:

• the Customer notifies Leadstreet promptly by e-mail, immediately confirmed by registered mail, upon learning that a claim might be asserted;

• Leadstreet has sole control over the defence of the claim and of any negotiations for its settlement or compromise;

• the Customer takes no action that is contrary to Leadstreet’s interests.

21.2   If a claim, as described in article 21.1 of these Terms and Conditions, may be or has been asserted, the Customer will permit Leadstreet, at the latter’s option and expense, to:

• procure the right to continue using the Software Product;

• replace or modify the Software Product to eliminate the infringement while providing functionally equivalent performance; or

• return the Software Product and refund to the Customer a pro rata share of Fees that the Customer has actually paid for the period that the Software Product is/was not usable.

21.3   Leadstreet will have no indemnity obligation whatsoever to the Customer under this article if the Intellectual Property Rights infringement claim results from:

• a correction or modification of the Software Product not provided by Leadstreet;

• the use of the Software Product by the Customer in a manner not consistent with these Terms and Conditions, the Documentation or the reasonable instructions of Leadstreet; or

• the combination of the Software Product with other software not agreed upon by Leadstreet.

Article 22     – Subcontracting and assignment

22.1   Leadstreet will be entitled to use the services of subcontractors for the performance of any Services under this Agreement. In such case, Leadstreet will remain liable towards the Customer for the performance of these services.

22.2   Neither party will be entitled to assign any right or obligation under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed.

Article 23     – Miscellaneous

23.1   Waiver

The failure of either party at any time to insist upon strict performance of any of the Terms and Conditions in this Agreement will not be deemed a waiver of its right at any time thereafter to insist upon strict performance.

23.2   Notices

All notices, demands or consents required or permitted under this Agreement will be in writing. Notice will be sent to the parties at the addresses set forth on the signature page of this Agreement, or at such other address as will be given by either Party to the other in writing.

23.3   Entire agreement

This Agreement is the complete agreement of the parties and cancels and supersedes all prior and contemporaneous agreements, negotiations, understandings and proposals, whether oral or in writing, between them relating to the subject matter hereof.

23.4   Modification

This Agreement may be modified only by a written agreement duly executed by all parties. No amendment, modification or waiver of any provision of this Agreement, nor consent to any departure by any party, will in any event be effective unless the same will be in writing and signed by both parties, and then such amendment, modification, waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given.

23.5   Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision will be severed and the remainder of the provisions of this Agreement will continue in full force and effect as if this Agreement has been executed with the invalid, illegal or unenforceable provision eliminated. The parties will immediately commence negotiations in good faith to remedy this invalidity.

Article 24     – Law and jurisdiction

24.1   This Agreement shall be governed by and construed in accordance with Belgian law.

24.2   Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ghent, Kortrijk division (Belgium).

***

Annex I: Processor Agreement

Parties:

1. The Customer (hereinafter: the "Controller”)
2. Leadstreet (hereinafter: the “Processor")

take into consideration that:

1. The Processor shall, within the framework of the execution or preparation of the Agreement, process personal data on behalf of the Controller;
2. The Parties wish to lay down in this Processor Agreement the arrangements regarding the processing of personal data by the Processor;

have agreed as follows:

• Definitions

Unless otherwise defined below, the definitions set forth in the Terms and Conditions shall apply.

• GDP: the General Data Protection Regulation (Regulation (EU) 2016/679) including its implementing law.
• Data Subject: the person to whom Personal Data relates, as referred to in Article 4(1) of the GDP.
• Personal Data Breach: a breach of security leading accidentally or unlawfully to the destruction, loss, alteration or unauthorized disclosure of, or unauthorized access to, personal data transmitted, stored or otherwise processed as referred to in Article 4(12) GDP.
• Employees: Persons employed by Controller or by Processor, either in employment or temporarily hired.
• Recipient: a natural or legal person, a government agency, a service or another body, whether or not a third party, to whom/to which Personal Data is provided.
• Parties: Controller and Processor.
• Personal Data: any information about an identified or identifiable natural person (the Data Subject) processed within the framework of the Agreement as referred to in Article 4(1) GDP; an identifiable person is considered to be a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more elements characterizing the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person.
• Subprocessor means another processor engaged by the Processor to Process Personal Data on behalf of a Controller.
• Processor: the natural or legal person, a government organization, a service or another body which processes Personal Data on behalf of the Controller as referred to in Article 4 (8) GDP.
• Processing/Processing: an operation or set of operations involving Personal Data or a set of Personal Data, whether or not carried out through automated processes, such as the collection, recording, organization, structuring, storage, updating or modification, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction of data as referred to in Article 4 (2) GDP.
• Controller: the natural or legal person, a government organization, a service or another body which, alone or jointly with others, determines the purpose of and the means for Processing Personal Data as referred to in Article 4(7) GDP.
• Processor Agreement: this Processor Agreement to lay down the arrangements as referred to in Article 28 paragraph 3 GDP.

• Applicability
  • This Processor Agreement relates to the Processing of Personal Data by Processor on behalf of the Controller in the context of the performance of the Agreement.
  • The nature and purpose of the Processing, the type of Personal Data, the categories of Personal Data, the Data Subjects and Recipients are defined in Annex 1.
  • Processor guarantees to comply with the requirements of the applicable laws and regulations regarding the Processing of Personal Data.

• Duration and Termination.
  • This Processor Agreement shall enter into force when the Agreement enters into force.
  • The Processor Agreement ends when the Agreement ends.
  • Neither party may terminate this Processor Agreement separately from the Agreement in the interim.
  • Obligations which by their nature are intended to continue even after termination of this Processor Agreement shall continue to apply after termination of this Processor Agreement. Such provisions include, for example, those arising from the provisions on confidentiality, liability, dispute resolution and applicable law.

• Processing
  • Processor Processes the Personal Data only on the instructions and based on written instructions of Controller subject to different legal requirements applicable to Processor. Processor shall not Process Personal Data longer or more extensively than necessary for the performance of the Agreement.
  • If in the opinion of Processor an instruction referred to in the first paragraph of this Article violates a statutory data protection regulation, it shall notify Controller prior to the Processing, unless a statutory regulation prohibits such notification.
  • If Processor is required to disclose Personal Data pursuant to a statutory regulation, it shall inform Controller immediately, and if possible prior to the disclosure.
  • Processor shall ensure that only its Employees have access to the Personal Data. The exception to this is the use of Subprocessors in accordance with the provisions of Article 11 of this Processor Agreement. Processor limits access to Employees for whom access is necessary for their work, whereby access is limited to Personal Data that these Employees need for their work. Processor shall also ensure that the Employees who have access to the Personal Data have received a proper and complete instruction on handling Personal Data and that they are familiar with the responsibilities and legal obligations.
  • Controller is legally obliged to comply with the applicable privacy laws and regulations. In particular, Controller shall determine whether there is a lawful basis for Processing the Personal Data. Processor shall ensure that it complies with the regulations applicable to it as Processor regarding the Processing of Personal Data and the agreements made in this Processor Agreement.
  • The Processing takes place under the responsibility of Controller. Processor has no control over the purpose and means of the Processing and does not make decisions on matters such as the use of Personal Data, the retention period of Personal Data processed for Controller and the disclosure of Personal Data to third parties. Controller must ensure that it has clearly defined the purpose and means of Processing Personal Data.
  • Controller shall take reasonable steps to keep Personal Data up to date to ensure the data are not inaccurate or incomplete with regard to the purposes for which they are collected.

• Security
  • Processor has taken all reasonable measures to implement the appropriate security measures listed in the Appendix 2 accompanying this Processor Agreement. In taking the security measures, account has been taken of the risks to be mitigated, the state of the art and the costs of the security measures.
  • Controller has properly informed itself about the security measures taken by Processor and believes that these measures have a security level appropriate to the nature of the Personal Data and the scope, context, purposes and risks of the Processing.
  • The parties recognize that ensuring an appropriate level of security may continually force the implementation of additional security measures. Processor shall ensure a security level appropriate to the current risk. Processor shall inform Controller if any of the security measures change substantially.
  • Processor shall provide appropriate safeguards for the application of the technical and organizational security measures in relation to the Processing to be performed. If Controller wishes to have the manner in which Processor complies with the security measures inspected, Controller may make a request to Processor to do so. Processor and Controller will make joint arrangements in this regard. The costs of an inspection shall be borne by Controller. Controller shall make a copy of the inspection report available to Processor.
  • Processor shall not, unless it has obtained express prior written consent to do so from the Controller, Process or have Processed Personal Data processed by itself or by third parties in countries outside the European Union ("EU").

• Confidentiality
  • All Personal Data that the Processor receives from the Controller and/or collects or is required to collect itself for the purpose of Processing in accordance with the provisions of the Agreement for that purpose shall be subject to an obligation of confidentiality towards third parties.
  • Processor shall not use the Personal Data for a purpose other than that for which it obtained it, even if it is put in such a form that it is not traceable to Controller or natural persons, such as the Data Subject.
  • Processor shall ensure that the persons authorized to Process the Personal Data have undertaken to observe confidentiality, or are bound by an appropriate legal obligation of confidentiality.
  • The obligation of confidentiality shall not apply insofar as Controller or the Data Subject himself/herself has expressly consented to the disclosure of the Personal Data to a third party or if and insofar as there is a legal obligation to disclose information to a third party.
  • If Processor uses the services of Sub-processors, it shall unconditionally ensure that the Sub-processors shall accept in writing the same duty of confidentiality as agreed between the Parties and shall strictly observe such duty of confidentiality.

• TransferabilityThe Parties shall not be permitted to transfer this Processor Agreement and the rights and obligations associated with this Processor Agreement to another person unless they jointly agree and agree in writing.

• Liability
  • Controller warrants that the Processing of Personal Data on the basis of this Processor Agreement is not unlawful and does not infringe the rights of Data Subject(s).
  • Processor shall not be liable for damages resulting from Controller's failure to comply with the GDP or other laws or regulations.
  • The limitation of Processor's liability agreed in the Agreement shall apply to the obligations set forth in this Processor Agreement.

• Co-operation obligations
  • The GDP and other (privacy) legislation grants certain rights to the Data Subject. Processor shall provide its full and timely cooperation to Controller in the performance of Controller's obligations towards the Data Subject.
  • A complaint received by Processor or a request from a Data Subject regarding Processing of Personal Data shall be forwarded by Processor to Controller without delay.
  • Upon the first request to that effect by the Controller, the Processor shall provide the Controller with all relevant information concerning the aspects of the Processing of Personal Data performed by it so that the Controller can demonstrate, partly on the basis of that information, that it complies with the applicable (privacy) legislation.
  • Processor shall furthermore provide all necessary assistance at the first request of Controller in complying with the statutory obligations imposed on Controller under the applicable privacy laws (such as, for example, conducting a privacy impact assessment). Processor may charge Controller for the assistance rendered in connection with such requests.

• Breach in connection with Personal Data.
  • Processor shall inform Controller without unreasonable delay, as soon as it becomes aware of a Personal Data Breach, in accordance with the arrangements set forth in Appendix 3. Processor shall endeavor to inform Controller within 48 hours after Processor discovers the Personal Data Breach or as soon as possible after Processor is informed about it by a Subprocessor.
  • Processor shall also inform Controller of developments regarding the Personal Data Breach reported by Processor.
  • The notification of a Personal Data Breach to the Personal Data Authority and Data Subject(s) (if any) is always the own responsibility of a Controller.
  • The Processor’s obligation to report or respond to a Personal Data Breach is not and will not be construed as an acknowledgement by the Processor of any fault or liability with respect to the Personal Data Breach.
  • (Maintaining) a register of Personal Data Breaches is always a Controller's own responsibility.
  • Any costs incurred by the Processor for the services delivered in relation to the aforementioned assistance related to Personal Data Breaches caused by the Controller, will be charged to the Controller.
  • Controller remains fully responsible for Personal Data Breaches caused by Controller’s actions or negligence.

• Engagement of Subprocessors
  • Processor may outsource (part of) its activities consisting of Processing Personal Data to a Subprocessor.
  • Processor shall impose the same or more stringent obligations on this Subprocessor as arise for itself from this Processor Agreement and the law. Processor shall set out these agreements in writing and shall monitor compliance with them by the Subprocessor.
  • Processor remains fully liable to Controller for the consequences of outsourcing work to a Subprocessor.

• Information obligation and audits.
  • Processor shall make available all information necessary to demonstrate that the obligations under this Processor Agreement have been and are being fulfilled.
  • Processor shall make available to the Controller all information necessary to:
    • demonstrate compliance with the obligations set forth in this Processor Agreement including the obligations listed in Articles 5.1 to 5.3 of this Processor Agreement;
    • enable audits, including inspections, by the Controller or an auditor authorized by the Controller.

• Return or erasure
  • Within a period of 90 (ninety) calendar days upon termination of the Processor Agreement, Processor shall, at Controller's option, ensure the return to Controller or erasure of all Personal Data. Processor shall delete copies, subject to differing legal requirements.
  • The Processor may retain Personal Data to the extent required by Union or Member State law, and only to the extent and for such period as required by Union or Member State law, and always provided that the Processor shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the Union or Member State law requiring its storage and for no other purpose.

• Applicable law and competent court
  • The Processing Agreement shall be governed by Belgian law.
  • Disputes regarding the content and execution of the Processor Agreement shall be settled by the court within the district where the Processor is located.

Appendix 1. Processing of Personal Data.

Description of Processing Activities by Processor:

Processor commercializes an application that adds automation features on the connected Hubspot account. All features and details are available on the following webpage: https://pocketknife.leadstreet.be/features 

Processing purposes:

- Execution or preparation of the Agreement.

An intermediate server may be used (app.leadstreet.be, hosting by Combell nv or a Google Cloud Server, hosting by Google) which itself does not store data in case of synchronizations.

Personal data processed: first name, last name, email, telephone, address, fax, ... plus profiling data.

Retention Period: Processor does not retain Personal Data longer than strictly necessary to fulfill the purposes for which the Personal Data is collected.

Other Sub-data processors: are listed on the following webpage: https://pocketknife.leadstreet.be/request-subcontractors-leadstreet

Appendix 2: Appropriate technical and organizational measures

Technical security measures:

☐ Up-to-date virus scan

☐ LastPass access mechanism

☐ Unique login code and password (change regularly)

☐ Use of SaaS products that are GDPR compliant

☐ Make use of 2FA where possible

Organizational security measures

☐ Locking desktop and laptop computers

☐ Internal privacy clauses

☐ NDA with sub-processors

Appendix 3: Agreements regarding Personal Data Breach.

In the event of a Personal Data security breach discovered by Processor or a loss or compromise of Personal Data, Processor shall notify Controller within 48 (forty-eight) hours of discovery by sending an email to the Controller.

In this email, Processor shall at least indicate that there has been a Personal Data Breach, what is the (alleged) cause thereof it the Personal Data Breach, what is the (as yet known and/or expected) consequence, what is the (proposed) solution and who has already been informed.