Foursixty Inc. (“Foursixty”, “we”, “us” and terms of similar meaning) provides this web site and the services provided by or through this web site to you and the entity you are signing up on behalf of (such entity is referred to herein, as “you”) subject to these terms and conditions of use (these “Terms”). These Terms and the other terms included on the sign-up page that links to these Terms (the “Sign-Up Page”) and the pricing page available at the following link: https://foursixty.com/460/pricing (the “Pricing Page”) are, collectively, the “Agreement”. This Agreement commences as of the date that you complete the Sign-Up Page and receive access to the Services (the “Effective Date”).
In these Terms we call this web site, any successor web sites (together, the “Site”) and the software we make available to you through the Site is the “Application”. The Application includes your use of the Foursixty API, and we refer to the services provided through the Application as the “Services”. References to the “Services” also includes, as applicable, any content contained within the Services, Application, and Site that is provided or made available by or on behalf of Foursixty.
BY USING THE SERVICES (INCLUDING THE SITE), YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, YOU WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. THE PERSON AGREEING TO THESE TERMS REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE COMPANY THAT HE OR SHE IS SIGNING ON BEHALF OF.
The Services are not intended to be used by children. Each user of the Services must be at least of the age of majority to use the Services.
We reserve the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline applicable to the Services, at any time and in its sole discretion. If we do so, we will notify you at the email address provided in the Registration Data, if any, or we will post a notice on the Site visible to you the next time you access the Site. If you do not agree with the changes, you can cancel your account with us without further obligation, except for the amount due (if any) for the balance of the billing period in which you cancel your account (if your billing period is monthly, we will prorate your account to the nearest month-end after cancellation). Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the Site, and your continued use of the Services after such time will constitute your acceptance of such changes or modifications. You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Services. The Terms will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using the Services (including removing the Foursixty API and deleting any content provided by Foursixty pursuant to the Services). Except as expressly provided above, no amendment, supplement, modification, waiver, or termination of this Agreement, or consent or approval by any party, will be binding unless executed in writing by the parties to be bound thereby.
If you have any questions about the Terms of your use of the Services, please email us at helpme@foursixty.com.
1. Privacy Policy; Personal Information
Foursixty has
implemented reasonable safeguards to protect personal information that it
processes on your behalf, as set out in the Data Processing Addendum attached
to these Terms. Foursixty will collect, use and disclose personal data on
behalf of Customer in accordance with its Privacy Policy, available at https://foursixty.com/460/
You represent and warrant to, and covenant with us that the User Content will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information in connection with the Services.
2. Registration Data; Account Security
You agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password and only share your account information and password with authorized individuals who work for your company; (c) maintain and promptly update the Registration Data, and any other information you provide to Foursixty, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Foursixty. You are responsible for all activity on your Foursixty account, and for all charges incurred by your Foursixty account. You will not share your account information with any other person. You will promptly notify us of any actual or suspected unauthorized use of the Services or your account. We reserve the right to suspend, deactivate, or replace your account if we determine that your account may have been used for an unauthorized purpose.
3. Fees; Charges; Taxes
Fees and any other charges for the use of the Services (the “Fees”) are described on the Pricing Page. We may change the Fees from time to time. If we change the Fees, we will give you at least 30 days’ notice. If they do change, your continued use of the Services after the change indicates your agreement with the new Fees after the effective date of the change. Any change to Fees will not be applicable to the billing period in which the change occurs.
To the extent that your use of the Services exceeds the applicable limits set out in the Pricing Page, you may be required to transition to a custom enterprise pricing plan. Additional information about our custom enterprise pricing plan is available upon request.
The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. You will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Foursixty.
Foursixty does not provide refunds. Unless otherwise noted on the Pricing Page, all Fees are identified in US dollars and are payable on a monthly basis as stipulated by your subscription start date. By using the Services, you authorize Foursixty to charge the credit card you have on file with Foursixty. If requested, Foursixty will provide, or provide you with the ability to generate, invoices for any Fees paid. If you believe we have charged or invoiced you incorrectly, you must contact us no later than 45 days after having been charged by us in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, you will pay any undisputed amounts in accordance with the payment terms herein, and you and we will discuss the disputed amounts in good faith in order to resolve the dispute.
You may not withhold or setoff any amounts due under this Agreement. We reserve the right to suspend your access to and use of the Services until all due amounts are paid in full. Any suspension of the Services by us pursuant to the terms of this Agreement will not excuse you from your obligation to make payments under this Agreement.
4. Ownership, Copyright and Trademarks; Listing You as a Customer
(a) You retain all ownership and intellectual property rights in and to data, content and information you input, provide or transmit to the Services (the “User Content”). You grant to us a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit User Content to provide the Services. We may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning User Content and data derived therefrom), and during and after the Term, we may use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services.
(b) We or our licensors retain all ownership and intellectual property rights in and to: (i) the Services, Application and Site (including, for greater certainty, all content, other than User Content, therein); (ii) anything developed or delivered by or on behalf of us under this Agreement; and (iii) any modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations to the foregoing (i) and (ii). All rights not expressly granted by us to you under this Agreement are reserved.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Foursixty.
We may use your logo and name to list you as a customer on our website and marketing materials.
5. User Content; Use of Third Party Content
(a) By posting or distributing User Content (including any content you have obtained from other parties (e.g. content generated by general Instagram users that you have separately uploaded) to or through the Services, you represent and warrant that: (a) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Services; and (b) the use and posting or other transmission of such User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity or violate any applicable laws, or infringe, violate or otherwise misappropriate the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity). In particular, if you provide User Content from another website, you represent and warrant that you are authorized to do so, and that doing so will not violate the terms of use of that website.
(b) To the extent that you use the Services to request rights to use photos, videos, or other user-generated content posted by third parties on social media platforms (the “Social Media Content”), you agree that: (i) you will obtain all necessary rights to Social Media Content from the content creator(s) and all other consent and authority required under applicable laws (including applicable federal and provincial privacy and anti-spam legislation) necessary to enable us to provide the Services to you, including with respect to the collection, storage, access, use, disclosure and transmission of any personal information in the Social Media Content; (ii) you will comply with all policies and procedures of the applicable social media platform in respect of the use of such Social Media Content; and (iii) you will hold Foursixty harmless in connection with any injuries, losses, or legal actions suffered by you from using Social Media Content acquired through Foursixty’s performance of Services in accordance with the terms hereof for which proper digital rights were not acquired.
We do not represent or warrant that use of the Services will provide you with such rights or consents.
6. Provision of Services; Restrictions on Use; Suspension of Access
Subject to your compliance with the terms and conditions of this Agreement, we will make the Services available to you and grant you a limited, revocable, non-exclusive, non-sublicensable license to install and use the Foursixty API solely for the Term on the terms and conditions set out in this Agreement.
Restrictions on Use
You must not, and will not permit others to: (a) except as expressly agreed by us in writing, sub-license, sell, rent, lend, lease or distribute the Site, Application or Services or any intellectual property rights therein or otherwise make the Site, Application or Services available to others; (b) except as expressly agreed by us in writing, use the Site, Application or Services to facilitate or provide timesharing, service bureau use or commercially exploit the Site, Application or Services; (c) use or access the Site, Application or Services in violation of any applicable law or intellectual property right (including any anti-spam laws); (d) use the Site, Application or Services in a manner that threatens their security or functionality; (e) use the Site, Application or Services to create, collect, transmit, store, use or process any User Content: (i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) that you do not have the lawful right to create, collect, transmit, store, use or process; or (iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (f) modify the Site, Application or Services; (g) reverse engineer, de-compile or disassemble the Site, Application or Services; (h) remove or obscure any proprietary notices or labels on the Site, Application or Services including brand, copyright, trademark and patent or patent pending notices; (i) use the Site, Application or Services for the purpose of building a competitive product or service; (j) perform any vulnerability, penetration or similar testing of the Site, Application or Services; (k) use the Site, Application, or Services to send text messages to anyone who has not consented to receive such messages; or (i) use the Site, Application or Services for any purpose or in any manner not expressly permitted in the Agreement.
Without limiting the generality of the foregoing, you also agree not to remove our logo that displays at the bottom of pop-up pages on your website when using our Services unless you have express written consent from us and agree to additional white-label terms and conditions with us.
Suspension of Access; Scheduled Downtime; Modifications
We may, in our discretion: (a) suspend your access to or use of the Site, Application or Services or any component thereof: (i) for scheduled maintenance; (ii) if you violate any provision of this Agreement; or (iii) to address any emergency security concerns; and (b) modify the Site, Application or Services.
You are required to accept all patches, bug fixes and updates made by or on behalf of us to the Site, Application or Services.
7. User Feedback
If you send to Foursixty any information, ideas, or feedback regarding the Services or other products and services that Foursixty may offer (“User Submissions”), you acknowledge that Foursixty may use the User Submissions without acknowledgement or compensation to you, and you waive any claim of ownership or compensation or other rights you may have in relation to the User Submissions. We actively review User Submissions for new ideas. If you wish to preserve any interest you might have in your User Submissions, you should not send them to us.
8. Providing a Reliable and Secure Service
If you have spent any time reviewing the Services, you will hopefully have noticed that we take reliability and security seriously. We put a great deal of effort to make our Services operate all the time, and to provide a secure environment for your data. We use what we believe to be “best-of-class” hosting services and security technologies and services that we believe provide you with a secure and safe environment. More information about these services and technologies is available on the Site.
However, no system is perfectly secure or reliable, the Internet is an inherently insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, and other service providers cannot be assured. When you use the Site, Application, or Services, you accept these risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
9. No Responsibility for Third-Party Material
The Site may contain links to third-party Web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, payment processors and other payment intermediaries that you may use in connection with your use of the Services. You use links to Third-Party Sites and any Third-Party Content or service provided there, at your own risk.
Foursixty makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in the Services of a link to a Third-Party Site or Third-Party Content does not imply Foursixty's endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Foursixty accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or Web sites linking to the Services. When you leave the Services, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. Without limiting the generality of the foregoing, any fees or charges you incur in respect of such Third-Party Sites or Third-Party Content are solely your responsibility and any disputes related to the Third-Party Sites or Third-Party Content are between you and the provider of such Third-Party Sites or Third-Party Content.
10. Advertisements and Promotions
Foursixty may run advertisements and promotions from third parties on the Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Foursixty, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Foursixty is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Services.
11. Warranty Disclaimer; Indemnity
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) WE DO NOT WARRANT THAT THE SITE, APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY US TO YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WE EXPRESSLY DISCLAIM ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER.
(b) You will defend, indemnify and hold harmless us, and our employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any the following: (i) User Content; (ii) your breach of any of your obligations, representations or warranties under this Agreement; (iii) any claim, allegation or dispute arising out of your use of the Social Media Content; or (iv) use of the Site, Application or Services (or any part thereof) by you in combination with any third party software, application or service not provided by us to the extent such use or combination gave rise to the applicable claim or liability. You will fully cooperate with us in the defense of any claim defended by you pursuant to your indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of us.
While Foursixty attempts to make your access to and use of the Services safe, Foursixty does not represent or warrant that the Site, the Application or the Services are free of viruses or other harmful components.
12. Limitation of Liability; Indemnity
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF US IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL OUR THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
13. Notices
Notices that we give you (other than notice of amendment of these Terms, which is discussed in the introduction of these Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email you or telephone you at the contact information you provide in your Registration Data. Or we may post a notice in the dashboard area of your account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is your responsibility to periodically review the Site for notices.
Notices to us must be sent to the following address (or such other address as we provide notice to you):
Email: helpme@foursixty.com
Notices sent to either party will be effective when posted on the Site (if applicable), delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given.
14. Governing Law and Venue
The Services are controlled by Foursixty and operated by it from its offices in Toronto, Ontario. You and Foursixty both benefit from establishing a predictable legal environment in regard to the Services. Therefore, you and Foursixty explicitly agree that all disputes, claims or other matters arising from or relating to this Agreement will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein (excluding its conflict of laws provisions). The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving Foursixty and arising out of or relating to: (a) this Agreement; (b) the Site, the Content or the Services; (c) oral or written statements, advertisements or promotions relating to this Agreement or to the Site, the Content or the Services; or (d) the relationships that result from this Agreement or the Site, the Content or the Services (collectively, a “Claim”), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against Foursixty related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Foursixty. If you have a Claim, you should give written notice to arbitrate at the address specified above. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules in effect on the date of the notice in the Province of Ontario.
To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims will be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
15. Term
This Agreement will commence on the Effective Date and continue to be in effect unless terminated (the “Term”).
16. Inactive Accounts; Termination of Agreement
If your account is inactive for at least two months, we may deactivate your account. Deactivated accounts are not deleted—they are placed in storage and can be restored. We will notify you by email if we decide to deactivate your account. If you know in advance that your account will be inactive at some time and don’t want us to deactivate it, let us know in advance at helpme@foursixty.com. If after your account has been deactivated it stays inactive and we don’t hear from you, we may terminate it at any time and without notice. Inactivation of your account does not relieve you of your obligation to pay Fees during the period of time that your account is inactive.
You and Foursixty may terminate this Agreement at any time by providing notice to the other party. If you terminate this Agreement you must pay the Fees applicable for the balance of the then current billing period (if your billing period is monthly, we will prorate your account to the nearest month-end after termination). When this Agreement is terminated, your Foursixty account and your use of the Services will also be terminated and your User Content will, shortly thereafter, not appear on the Services. We may also retain an archival copy of your User Content after termination, and you hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
If these Terms expire or terminate for any reason, Sections 4, 8, 9, 11, 12, 13, 14, and 16, and any representation or warranty you make in this Agreement, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive indefinitely.
17. Miscellaneous
If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. Foursixty may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of Foursixty, and any such attempted assignment will be void and of no effect. This Agreement constitutes the entire agreement between you and Foursixty regarding your use of the Site, the Content and the Services, and supersedes all prior or contemporaneous communications whether electronic, oral or written between you and Foursixty regarding your use of them. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, have been and will be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions. Our relationship to you is that of an independent contractor, and neither party is an agent, employee or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party. Neither party will be liable for delays caused by any event or circumstances beyond a party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving a party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“Addendum”) is entered into by and between Foursixty Inc. (“Foursixty”) and you (“Customer”) as part of the Foursixty Terms and Conditions (the “Agreement”).
In the event of any conflict between the Agreement and this Addendum, the terms and conditions of this Addendum shall control. Except to the extent expressly superseded or modified in this Addendum, the terms and conditions of the Agreement will apply to this Addendum and remain in full force and effect.
1. Definitions.
“Processing” or “Process” means the collection, use, modification, retrieval, disclosure, storage, anonymization, deletion, and/or management of Personal Data.
“Personal Data” means information of an identified or identifiable individual transferred by Customer, or its permitted agents, to Foursixty hereunder, and any information derived or otherwise created by Foursixty in connection therewith.
“Privacy Laws” means all applicable laws and regulations governing the collection, use disclosure and protection of Personal Data.
2. Data Processing and Security Responsibilities.
a) Customer and Foursixty shall each comply with all Privacy Laws that apply to it in relation to any Personal Data Processed in connection with this Addendum, as set out in Annex A to this Addendum.
b) Foursixty takes the view that it is not in scope of the EU General Data Protection Regulation. However, this DPA incorporates the mandatory clauses required by Article 28(3) of the EU General Data Protection Regulation for contracts between Controllers and Processors.
3. Customer agrees that it has:
a)made and shall maintain all necessary registrations and notifications as required in order to permit Foursixty to perform its obligations and exercise its rights under this Addendum;
b) obtained and shall continue to obtain all consents necessary, and provide all necessary notices and otherwise have all authority, to permit Foursixty to perform its obligations and exercise its rights under this Addendum, and shall inform Foursixty immediately if any such consents are withdrawn;
c) ensured and shall continue to ensure that all Personal Data Processed by Foursixty is adequate, relevant, accurate and up-to-date, and limited to what is necessary to permit Foursixty to perform its obligations and exercise its rights under this Addendum; and
d) ensured and shall continue to ensure that there are valid legal grounds to enable Foursixty to Process Customer's Personal Data.
4. In the course of Processing Personal Data on behalf of Customer in connection with the Foursixty Offering as set out in Annex A to this Addendum, Foursixty shall:
a) only Process Personal Data for the purposes of rendering the Foursixty Offering and as otherwise instructed by Customer in writing from time to time, and not Process any Personal Data in any other manner without the express prior written consent of Customer unless required to do so by applicable law, including applicable laws of Canada, the European Union (EU) or the laws of an EU Member State to which Foursixty is subject;
b) immediately inform the Customer if, in Foursixty’s opinion, any instruction received from the Customer infringes any Privacy Laws;
c) not disclose (and not allow any of its employees, or permitted agents or representatives to disclose) in any manner whatsoever any Personal Data to any third party without the prior written consent of Customer unless required to do so under applicable law;
d) where any disclosure, transfer or other Processing of Personal Data is required by applicable law, including applicable laws of Canada, the European Union (EU) or the law of an EU Member State to which Foursixty is subject, promptly notify Customer in writing before complying with any such requirement and comply with all reasonable directions of Customer relating thereto;
e) immediately notify Customer in writing of any (i) enquiry received from individuals relating to, among other things, the individual’s right to access, modify, correct, erase or restrict the processing of Personal Data or to exercise their right of data portability or an objection in accordance with Privacy Laws, (ii) complaint received by Foursixty relating to the Processing of Personal Data, and (iii) order, demand, warrant or any other document purporting to compel the production of any Personal Data, and promptly comply and fully co-operate with all reasonable instructions of Customer with respect to any action taken with respect to such enquiry or complaint;
f) implement appropriate physical, technical, administrative and organizational measures appropriate to the sensitivity of the Personal Data to protect the Personal Data against loss, theft, destruction, damage, alteration and unauthorized or unlawful access, use, disclosure or other processing and provide reasonable assistance to Customer, at Customer's cost, to ensure compliance with Customer's obligations to implement such security measures;
g) limit access to Personal Data only to those employees and authorized agents of Foursixty who need to have access to the Personal Data solely for the purposes of Foursixty rendering the Foursixty Offering;
h) ensure or cause each of the employees and permitted contractors of Foursixty to agree, in writing, to protect the confidentiality and security of the Personal Data in accordance with the terms of this Addendum, and otherwise properly advise and train each of its employees and permitted subcontractor of the requirements of Foursixty under this Addendum and applicable Privacy Law;
i) ensure that each employee or permitted contractor of Foursixty involved in rendering the Foursixty Offering hereunder is appropriately screened to confirm the suitability of the performance of their duties in connection with the Foursixty Offering, including the access to and Processing of Personal Data;
j) except as otherwise agreed to in writing by Customer only maintain and otherwise process the Personal Data in North America (Canada or the United States), Europe, Asia, Australia as well as the jurisdiction in which the customer resides; and
k) provide all reasonable assistance, upon request, to Customer in connection with its obligations under Privacy Laws to carry out a data protection impact assessment (and, where required by the Privacy Laws, consulting with the relevant supervisory authority in respect of any such data protection impact assessment).
5. Audit Rights
Foursixty shall provide Customer (or its representatives) with access to the records, facilities and premises of Foursixty during business hours and upon at least 30 days advance notice in writing, for the purposes of verifying Foursixty’s compliance with this Addendum, and in the event that any such audit, inspection or examination reveals that Foursixty is non-compliant with its obligations under the foregoing provisions, Foursixty shall promptly bring itself into compliance.
6. Subcontracting.
Customer acknowledges and agrees that Foursixty shall use sub-processors (including Foursixty affiliates) to provide the Offering as set out in Annex B. Foursixty shall enter into a written agreement with each such sub-processor that imposes obligations on the sub-processor that are substantially similar to those imposed on Foursixty under this Addendum. Foursixty shall only retain sub-processors that Foursixty can reasonably expect to appropriately protect the privacy, confidentiality and security of the Personal Data. Where such sub-processors fail to fulfil their data protection obligations, Foursixty shall remain fully liable to the Customer for the performance of those sub-processor’s obligations. Prior to appointing any new sub-processor in addition to or in lieu of those listed in Annex B, Foursixty shall notify Customer of such sub-processors, whereupon Customer shall have 30 days to object to such appointment by providing detailed reasons for such objection to Foursixty.
7. Security Breach Notification.
a) Foursixty shall notify Customer in writing within 48 hours upon Foursixty becoming aware of, or suspecting any loss, theft, damage or unauthorized or unlawful access to or use, disclosure or other Processing of Personal Data in Foursixty’s or its agent’s or sub-processor’s custody or control (“Privacy Breach”);
b) The notice referred to in (a) above shall include, in reasonable detail and to the extent known at the time of such notice, a description of the circumstances of the Privacy Breach and the cause of the Privacy Breach, the date and/or time period during which the Privacy Breach is believed to have occurred or, if neither is known, the approximate period, a description of the Personal Information involved in the Privacy Breach, the number of affected individuals or, if unknown, the approximate number, and a description of the steps taken or to be taken by Foursixty to reduce the risk of harm to affected individuals that could result from the breach or to mitigate that harm. Foursixty shall provide regular updates to Customer as additional information becomes available;
c) Foursixty shall promptly take all necessary and advisable corrective actions, and shall cooperate fully with Customer in all reasonable and lawful efforts to prevent, mitigate, rectify or remediate such Privacy Breach. Without limiting the foregoing, Foursixty shall cooperate with Customer in investigating and responding to the foregoing, notifying affected individuals and other parties in accordance with applicable law, and seeking injunctive or other equitable relief against any such person or persons who have violated or attempted to violate the security of Personal Data;
d) promptly upon learning of an actual or suspected Privacy Breach, Foursixty shall, if appropriate, retain a reputable forensics expert to recommend to Foursixty steps necessary to stop any ongoing Privacy Breach, to preserve all records and information related to such activities and to investigate the nature and scope of the incident;
e) in the event that applicable law or contract requires that any individuals, organizations, regulators or other parties be notified of a Privacy Breach involving Personal Data, Customer shall determine whether such notice shall come from Customer or Foursixty. In any event, the content, timing and other details of such notice shall be subject to Customer prior written approval, in Customer sole discretion; and
f) without limitation of the foregoing, Foursixty shall keep and maintain a record of every Privacy Breach in connection with the Foursixty Offering provided by Foursixty and provide a copy of such records to Customer promptly upon request.
8. Termination.
In the event a law, or legal requirement, or privacy or information security enforcement action, investigation, litigation or claim, or any other circumstance, is reasonably likely to adversely affect Foursixty’s ability to fulfill its obligations under this Addendum, Foursixty shall promptly notify Customer in writing and Customer may, in its sole discretion and without penalty of any kind to Customer, suspend the transfer or disclosure of Personal Data to Foursixty or access to Personal Data by Foursixty, terminate any further Processing of Personal Data by Foursixty, and terminate the Agreement.
Upon the termination of the Agreement or at such other times as instructed by Customer in writing, immediately return (or, upon the written instruction of Customer, securely dispose of) each and every original and copy in every media of all Personal Data in the possession or control of Foursixty and certify to Customer in writing upon completion of any such delivery or disposal. In the event applicable law does not permit Foursixty to comply with the delivery or destruction of the Personal Data, Foursixty warrants that it shall ensure the strict confidentiality of the Personal Data and that it shall not Process any Personal Data by or on behalf of Customer after termination of the Agreement.
ANNEX A
DATA PROCESSING DESCRIPTION
Subject-matter and duration of the Processing:
Foursixty provides social commerce and social content management services for brands, bloggers, and advertising agencies. Foursixty provides Customers with an API and related website services that enable the Customer to create shoppable Instagram galleries on its website, and secure rights to use photos and videos that have been posted on Instagram (“Services”).
The duration of the Processing is the term of the Data Processing Addendum.
Nature and purposes of the Processing:
Personal Data are Processed for the following purposes:
· Personal data of end users and social media users will be collected, used, stored, and analyzed for the purposes of providing the Services, contacting social media users in order to request rights to use photos posted on Instagram, tracking and analyzing which digital assets an end-user interacted with in order to show conversion data to Customers, analyzing the use of the Services by end users in order to improve the marketing, analytics and functionality of the Services.
· Foursixty processes personal data of Permitted Users in order to provide and administer log-in accounts necessary to access and use the Services on behalf of Customer.
Data Subjects
Personal Data regarding the following categories of Data Subjects are involved:
· End users (individuals who visit the Customer’s Instagram gallery)
· Social media users (individuals who post content on Instagram that may be collected and used by Customer)
· Employees and independent contractors of Customer who are authorized to access and use the Foursixty services (“Permitted Users”).
Data Categories
The following categories of Personal Data are involved:
With respect to end users:
· Log data (Internet Protocol address, cookies, date/timestamp, clicks)
· Cookie data to track if a session has interacted with a Foursixty post
With respect to social media users:
· Social media username
· Public uploads and posts from social media sites (including publicly posted photographs and videos, along with the Instagram URL, date/time of posting and associated metadata and caption of the posts).
With respect to Permitted Users of data exporter:
· First and last name
· Business email address
ANNEX B
SUBCONTRACTORS
Amazon Web Services (AWS)
1200 12th Avenue South
Suite 1200
Seattle, WA 98144
United States
206-266-4064
Customer.io
921 SW Washington Street
Suite 820
Portland, Oregon, 97205
Digital Ocean
101 6th Avenue
New York, New York
10013
Intercom
55 2nd Street
4th Floor
San Francisco, CA 94105
877-595-5175
Mail Chimp
The Rocket Science Group, LLC
675 Ponce de Leon Ave NE
Suite 5000
Atlanta, GA 30308 USA
Salesforce
The Landmark @ One Market
Suite 300
San Francisco, CA 94105
415-901-7000
Twilio
375 Beale Street, Suite 300
San Francisco, CA
94105
(877) 889-4546
Last updated: July 4th, 2018