Terms of Use
These terms of use (the “Terms of Use”) are applicable between Benchmark.ai B.V., a private limited liability company incorporated under the laws of The Netherlands (“besloten vennootschap”), registered at the Chamber of Commerce (“Kamer van Koophandel”) under number 000; (“Benchmark.ai”) and the client, identified with the information provided by completing the Registration Form as below defined (the “Client”).
1. BACKGROUND
1.1. Benchmark.ai is a company that operates in the digital marketing and digital communications industry and has developed and designed a Software as a Service (SaaS) which it makes available to the Client via its Platform (as defined below). The Client knows and has carefully checked the features of the Platform and considers them suitable for its needs. The Platform is a tool reserved to professional users (as opposed to consumers) and the Client undertakes to use it exclusively in connection with its professional business (and not in a capacity of consumer).
1.2. These recitals, the schedules, and any external links referred to in these Terms of Use (e.g., the Privacy Policy, the Pricing Page, and the Support Pages, as defined below) constitute an integral and substantive part of these Terms of Use. These Terms of Use together with any Offer or SOW (if any) are applicable to the use of the Platform, the Website and/or the Services provided by Benchmark.ai and to any other (legal) actions between Benchmark.ai and the Client.
2. DEFINITIONS
2.1. Definitions. In these Terms of Use, the following terms shall have the following meaning when capitalized. Any reference in these Terms of Use to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
(1) 2FA: has the meaning set out in clause 4.2.
(2) AddOns: has the meaning set forth in Section 3.6;
(3) AddOns Provider: has the meaning as set out in clause 3.6.
(4) API: has the meaning set out in clause 4.3.
(5) Beta: has the meaning set out in clause 8.4.
(6) Billing Period: has the meaning set out in clause 7.2.
(7) Client: means the legal entity that makes use of the Platform, the Website and/or the Services provided by Benchmark.ai;
(8) Confidential Information: has the meaning set out in clause 10.1.
(9) Benchmark.ai: means the private limited liability company incorporated under the laws of The Netherlands (“besloten vennootschap”) Benchmark.ai B.V., registered at the Chamber of Commerce (“Kamer van Koophandel”) under number 000;
(10) Benchmark.ai Disabling Device: means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Benchmark.ai or its designee to disable Client’s access to or use of the Services automatically with the passage of time or under the positive control of Benchmark.ai or its designee.
(11) Benchmark.ai Indemnitee: has the meaning set out in clause 12.2.
(12) Deliverables: has the meaning set out in clause 3.2.
(13) Effective Date: means the date upon which the Client starts to use the Services.
(14) Feedback(s): has the meaning set out clause 15.10.
(15) Force Majeure: means force majeure as defined in article 6:75 of the Dutch Civil Code. Force majeure shall in any event include circumstances which cannot be attributed to Benchmark.ai and which do not fall within its sphere of risk, such as: new laws, rules, government measures and regulations which impede or restrict its obligations in relation to the Services (including software or any other IT related failures), strikes, fire, floods, lightning, windstorm, acts of God, natural or nuclear disasters, energy supply faults, disease on an unusual scale including but not limited to COVID-19 or any variant thereof, wars or threats of war and/or terrorist attacks or actions.
(16) Free Plan: has the meaning set out in clause 3.5.
(17) Intellectual Property Rights: means any and all intellectual property rights and related rights, including but not limited to copyrights, database rights, design rights, domain names, know how, patents, trademarks, trade name rights, trade secrets.
(18) Offer: means the offer in respect of the Services sent by Benchmark.ai to the Client.
(19) One Time Services: has the meaning set out in clause 3.2.
(20) Party(ies): means Benchmark.ai and the Client individually or collectively considered.
(21) Platform: means the platform on which the Services are made available to the Client by Benchmark.ai;
(22) Personal Data: has the meaning set out in clause 11.2.
(23) Platform: means the IT hosting platform for the Services. The Client accesses the Services via the Platform.
(24) Pricing Plan: means the type of account (including the related applicable pricing) that the Client has subscribed to for using the Services via the Platform depending on the exact Services that the Client wishes to make use of. The current available options are available at the Pricing Page (as defined below).
(25) Pricing Page: means the webpage available at https://benchmark.ai on which the pricing of Benchmark.ai is set out or any other means by which the pricing of Benchmark.ai is provided to the Client.
(26) Professional Services: has the meaning set out in clause 3.2.
(27) Registration Form: means the registration form that is to be filled in by the Client when purchasing the Services.
(28) Resultant Data: has the meaning set out in clause 11.3.
(29) Services: means the services (including the Platform) provided by Benchmark.ai to the Client via the Platform, by means of which the Client can bring data from various sources together in order to find trends and anomalies and compare results with industry standards in order to optimze marketing investments.
(30) SOW: has the meaning set out in clause 3.2.
(31) Subcontractor: has the meaning set out in clause 3.7.
(32) Term: has the meaning set out in clause 6.1.
(33) Terms of Use: means these terms of use.
(34) Website: means the website made available by Benchmark.ai through the URL https://benchmark.ai and all underlying pages.
3. LICENSEAND SERVICES
3.1. License. Subject to Client’s acceptance of and compliance with these Terms of Use and based on the plan activated by the Client, Benchmark.ai undertakes to provide to the Client a limited, worldwide, non-exclusive, non-assignable (except as specifically set out in these Terms of Use) and non-transferrable (except as specifically set out in these Terms of Use) right and license to access the Platform and use the Services as set out in these Terms of Use.
3.2. Professional Services. The Client may order from Benchmark.ai rights to access and use Platform related professional services (“Professional Services”). Where applicable, Benchmark.ai or its third-party providers will perform the Professional Services set forth on the applicable Offer (if any). The particulars of each Professional Services engagement will be as set forth in executed statements of work (each an “SOW”) entered into by the Parties. Certain Professional Services projects which are discreet in nature may be provided to the Client on a one-time basis without an executed SOW (“One-Time Services”). All One-Time Services shall be governed by this Terms of Use and shall be subject to the terms in the applicable SOW approved by the Client in writing. Benchmark.ai will retain all right, title and interest in and to all deliverables (including any and all intellectual, property rights therein) provided under each SOW (“Deliverables”) except to the extent that they contain any pre-existing Client intellectual property, or it is otherwise regulated and agreed between the Parties in each SOW.
3.3. Consumer Legal Framework. The Client is aware and expressly accepts that the Platform and the Services provided via the Platform are reserved to professional users, and therefore these Terms of Use are not subject to the legal framework applicable to agreements with consumers (e.g., the right of withdrawal within the first fourteen days).
3.4. Improvements. The Client recognizes that Benchmark.ai is always innovating and finding ways to improve the Platform and the Services with new features. Therefore, the Client agrees that the Platform and Services may change from time to time, and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Platform and the Services. In any case, Benchmark.ai will take all reasonable commercial efforts to inform the Client in advance of any changes that may result in a substantial reduction in the level and overall quality of the Platform and Services.
3.5. Free Plan. The Client may have access to basic functionality of the Services available on the Platform under the free plan if it elects to subscribe to the no-charge limited plan (“Free Plan”). The use of the Free Plan is regulated by the provisions of these Terms of Use. The obligations of Benchmark.ai on the basis of provisions of Sections 8.1 (Performance of the Service), 8.2 (Maintenance) and 8.3 (Support) of these Terms of Use are not applicable to and cannot be enforced by Clients which make use of the Services via the Free Plan. In deviation of Section 13.2 (Limitation of Liability) the maximum aggregate liability of Benchmark.ai in respect of Clients which make use of the Services via the Free Plan, shall be EUR 15,00 (in words: fifteen euro). To the maximum extent permitted by applicable law, Benchmark.ai disclaims all obligations or liabilities with respect to Free Plans, including any support services, warranty, and indemnity obligations.
3.6. AddOns, Plugins, and Integrations. Benchmark.ai in its absolute discretion may make available additional features, functionality, and services offered by third-party providers (“AddOns”) with the Platform. Client’s use of AddOns is subject to a separate agreement between Client and the third-party licensor of that AddOn (“AddOns Provider”) and Benchmark.ai is not and in no event will be considered as a party to, or a third-party beneficiary of, such agreement. Client’s use of the AddOn is strictly at Client’s risk. The AddOn Provider is solely responsible for that AddOn, its content, performance and security and the privacy and security of any of Client data processed or affected, directly or indirectly, by the AddOn. Neither Benchmark.ai nor any of Benchmark.ai affiliates make any warranties, express or implied, as to the AddOns, their security, legality, performance, accuracy, or reliability. Benchmark.ai disclaims any liability in connection with any claims that Client or any other party may have relating to any AddOn or Client’s use of that AddOn. By subscribing to or purchasing an AddOn, the Client represents and warrants that (i) it has the right to directly transfer Personal Data to the AddOn Provider; (ii) only if applicable, it grants Benchmark.ai permission to share Client Personal Data and Resultant Data with the AddOn Provider as necessary in order to provide Client the AddOn; and (iii) it has all permission to use them and to transfer any information related their use to Benchmark.ai. Benchmark.ai disclaims any responsibility as to AddOn Provider’s use or misuse of Client Personal Data and Resultant Data.
3.7. Subcontractors. Benchmark.ai may from time to time in its discretion engage third parties to perform Services (each a “Subcontractor”).
3.8. Suspension or Termination of Services. Benchmark.ai may, directly or indirectly, and by use of any Benchmark.ai Disabling Device or any other lawful means, suspend, terminate or otherwise deny Client’s or any other person's access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (a) Benchmark.ai receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Benchmark.ai to do so; or (b) Benchmark.ai believes, in its sole discretion, that: (i) Client has failed to comply with, any term of these Terms of Use, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms of Use or in any manner that does not comply with any instruction or requirement of the specifications; (ii) Client is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) the Services expires or are terminated. This Section 3.8 does not limit any of Benchmark.ai other rights or remedies, whether at law, in equity or under these Terms of Use.
4. SECURITY AND API
4.1. Registration, username and password. To use the Services on the Platform, the Client is first required to fill in the Registration Form and to register for an account. The Client must secure access to its account using an email address and password. The password must be kept strictly confidential and the email account adequately secured. Benchmark.ai may assume that all actions undertaken from the Client’s account after logging in with the Client’s email address and password is authorized and supervised by the Client. This means that the Client is liable for these actions, and the Client indemnify Benchmark.ai from any and all claims and damages resulting from that use. In the event the Client knows or has reasons to assume that the email address and password are used by someone else, the Client should immediately notify Benchmark.ai thereof in writing, notwithstanding the Client’s own obligation to take measures to prevent any (further) damages. The Client may include personal data in its account and warrants that the information entered therein or provided when registering for the Services is complete, up to date and accurate.
4.2. 2FA.The Platform support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Platform. The Client agrees to conform to the use of the 2FA software that is provided by Benchmark.ai, and to keep its software up to date to support 2FA. Client agrees to instruct its employees on the importance of complying with 2FA security requirements. Benchmark.ai therefore will not be responsible for any damages, losses or liability to Client or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA.
4.3. API. The Platform may make available to the Client some API (“API”). Through the API, the Client has the possibility of creating personalized integrations between the Platform and third-party applications in order to facilitate automatic data updating functions. The Client is the only responsible party for the use of the API and undertakes to use them with adequate tools and in accordance with the provisions of these Terms of Use. The use through the Platform of functions made available by third parties may be subject to acceptance of contractual conditions imposed by such third parties.
5. USE POLICY
5.1. Compliance with laws. It is not permitted to use the Services for any purpose that violates the laws of The Netherlands or any other applicable law or regulation.
5.2. Use in accordance with the Terms of Use and Offer. The Client warrants that its use of the Services is at all times in accordance with these Terms of Use and the Offer.
5.3. Violation. Should Benchmark.ai discover that the Client violates any of the above, or receives a complaint alleging the same, Benchmark.ai will issue a warning to the Client. If the warning does not lead to an resolution acceptable by Benchmark.ai, then Benchmark.ai may intervene to end the violation and may immediately suspend or terminate the provision of the Services to the Client. In urgent cases, to be determined at the sole discretion of Benchmark.ai, Benchmark.ai may intervene and immediately suspend or terminate the provision of the Services to the Client without warning.
5.4. Prevention to avoid damage or jeopardy. If in the opinion of Benchmark.ai the continued functioning of the Platform is actually (or under threat of) being damaged or jeopardized, for example through excessive transmission of data, leaks of personal data or virus activity, Benchmark.ai may take all steps it deems reasonably necessary to end or avert such damage or jeopardy, including suspending or terminating the Services provided to the Client.
5.5. No liability for results of the use of the Services. The Client acknowledges that any results that can be achieved by using the Services are dependent on the proper use of the Services by the Client and the way in which the Client decides to use the Services in order to achieve its goals. Benchmark.ai therefore only has the obligation to make the Services available to the Client (which the Client can then use in accordance with its individual goals) and cannot warrant any results (such as, but not limited to, a conversion uplift/ROI) to be achieved from making use of the Services. Benchmark.ai is in no event liable or responsible for the achievement or non-achievement of any Client intended results from using of the Services, irrespective of whether Benchmark.ai has been made aware of these intended results in advance by the Client.
5.6. Third party rights. The Client warrants that the use of the Services by the Client and the sharing of information via the Platform by the Client when making use of the Services does not infringe any third party rights, such as, but not limited to, rights to personal data, confidential data files, video, text, music, software, logos, design material and/or any other third party intellectual property rights.
5.7. Indemnification. The Client indemnifies Benchmark.ai from all claims, procedures, losses and/or direct and/or indirect damage suffered by third parties based on, or arising out of, or in any way related to (a violation of) the use of the Services and/or the Platform by the Client, unless this is the result of gross negligence or intent by Benchmark.ai and/or its management staff. Benchmark.ai may recoup from the Client all damages suffered as a result of the Client’s incorrect use of the Services and/or the violation of the Terms of Use (such as but not limited to a violation of the warranty provided by the Client in clause 5.6 above) and/or the Offer.
6. TERM AND TERMINATION
6.1. Term. These Terms of Use will be effective commencing on the Effective Date and shall apply for as long as the Services are being provided to the Client during the term as set out in the Offer, including any extension of such Term, unless the provision of the Services is terminated earlier in accordance with these Terms of Use and/or the applicable law (the “Term”).
6.2. Renewal. After the initial Term as set out in the Offer, as indicated in the previous clause, the provision of the Services is silently renewed with successive terms of the same period. The Client can terminate the use of the Services by the end of the relevant Term set out in the Offer (or of any extended Term) with a notice period of one (1) calendar month by (i) clicking “Cancel subscription” under the heading “Billing” in the Platform, and (ii) deleting the online tracking the online tracking pixel before the end of the relevant Term. The Client is aware and accepts that the failure to perform even one of these two conditions will cause the automatic and silent renewal of the Services for successive terms of the same period.
6.3. Upgrade or downgrade. The Client is allowed at any time to upgrade its Pricing Plan in relation to the Services (for example by going from a standard pricing plan to a premium pricing plan) via the Platform by adding additional modules. The Client can only downgrade its Pricing Plan in relation to the Services by terminating added modules at the end of the term indicated in the Offer (or at the end of any extended term), taking into account the formalities set out in this clause 6.
6.4. Termination for convenience. Benchmark.ai is entitled to terminate the provision of the Service at any time and for any reason taking into account a notice period of one month.
6.5. Termination for material breach. In addition, and notwithstanding any other statutory or contractual rights that Benchmark.ai may have, Benchmark.ai is entitled to terminate this Terms of Use and the provision of the Services with immediate effect without taking into account any notice period if:
a) the Client does not comply with the applicable law when using the Services;
b) the Client infringes or Benchmark.ai has reason to believe that the Client infringes Benchmark.ai’ Intellectual Property Rights or in the event of a third party alleges that the Client has infringed the Intellectual Property Rights of such third party;
c) the Client breaches its payment obligations under clause 7 or commits any other material breach; and/or,
d) the Client applies or files for a moratorium (in Dutch: surseance van betaling) or for a bankruptcy.
6.6. Termination of the Free Plan. Benchmark.ai and Client may at any time terminate a Free Plan effective immediately upon written notice to the Client.
6.7. Effect of Expiration or Termination. Upon any expiration or termination of this Terms of Use, except as expressly otherwise provided in this Terms of Use:
a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
b) Client will immediately lose access to Client Data; it will be Client’s sole responsibility to ensure that Client Data are exported from the Platform during the applicable Term;
c) The Client shall stop all use of the Services, including but not limited to deactivating the use of all synchronisation activities such as deleting the online tracking pixel from all web properties of the Client and disconnecting all channels;
d) Client shall immediately cease all use of any Services and (i) at Benchmark.ai’ written request destroy all documents and tangible materials containing, reflecting, incorporating or based on Benchmark.ai Confidential Information; and (ii) permanently erase Benchmark.ai’ Confidential Information from all systems Client directly or indirectly controls;
e) Benchmark.ai may disable all Client access to the Platform and Services;
f) if Benchmark.ai terminates these Term of Use, all fees that would have become payable had the Terms of Use remained in effect until expiration of the Term will become immediately due and payable, and Client shall pay such fees, together with all previously accrued but not yet paid fees, on receipt of Benchmark.ai’ invoice therefor.
6.8. Charge use of Services prior to termination date. The Client shall be charged for all use of the Services prior to the termination date.
6.9. No refunds or compensations. Benchmark.ai will never be held to refund any money received, or be liable for any compensation regarding the cancellation, rescission or other termination of the Services. Amounts invoiced by Benchmark.ai before the termination remain unaffected and will be due immediately upon termination.
7. SUBSCRIPTION FEE AND PAYMENT
7.1. Subscription Fee. Benchmark.ai offers various subscriptions, as described in the Offer and/or on the Website. The use of the Services is subject to a subscription fee, as stated in the Offer and/or on the Website, which includes an agreed amount of features. The applicable subscription fee may vary according to the (additional) Services used.
7.2. Billing Period. The Client undertakes to pay, during the Term mentioned in the Offer, on a monthly basis (the “Billing Period”) a recurring subscription fee, as specified in the initial purchase order or any subsequent purchase order submitted by you. Benchmark.ai is allowed to bill in advance.
7.3. Payment Method. Payment is possible through direct debit payments, by making a wire transfer to the bank account of Benchmark.ai, or as explained further on the Website and in the Services.
7.4. Stripe. Benchmark.ai uses Stripe to process the Client’s Direct Debit payments. More information on how Stripe processes personal data and data protection rights, including the Client’s right to object, is available at https://stripe.com/privacy.
7.5. Electronic invoicing. The Client agrees with electronic invoicing.
7.6. VAT and Euros. All amounts mentioned by Benchmark.ai are exclusive of VAT and in euros.
7.7. Payment period. Benchmark.ai handles a payment period of thirty (30) calendar days. The Client is obliged to pay the fees within the agreed thirty (30) calendar days payment period. The end of this payment period is a fatal deadline and the Client will immediately be in default, without further notice being required, if the datal deadline is not met.
7.8. Failure to Pay. In the case the Client fails to pay within the above-mentioned payment period, Benchmark.ai is allowed to suspend (partly or fully) and/or to terminate the provision of the Services. Also, the Client is obliged to pay the commercial legal interest rate for the outstanding amount on the basis of article 6:119a of the Dutch Civil Code. This is owed from the first day after expiration of the payment period, without requiring a notice of default. The Client is also held to pay full compensation for all extrajudicial and judicial (collection) costs, including but not limited to costs for attorneys, bailiffs and debt collection agencies. Benchmark.ai is entitled to charge 15% of the outstanding amount to the Client, with a minimum of EUR 40,-, without prejudice to Benchmark.aiʼ right to charge the Client for the actual costs and/or damages suffered if these actual costs and/or damages exceed the aforementioned chargeable 15% of the outstanding amount.
7.9. Annual Subscription. If the Client subscribed for an annual subscription Pricing Plan with a monthly payment, the Client may be entitled to a discount. In this case if the payment is made by (i) credit card and if the Client fails to pay the subscription fee for five (5) times or (ii) wire transfer and the Client fails to pay the subscription fee, and this breach is not cured within fifty-five (55) calendar day starting from the due date of the invoice, Benchmark.ai shall have the right to:
a) suspend the performance of the Platform and Services without further notice and without incurring any obligation or liability to the Client or any other person by reason of such suspension and the block the access and the use of the Services;
b) charge the total discount (if any) benefited by the Client over the annual subscription;
c) charge over the period that the subscription fee is outstanding, an extra 50% of the subscription fee; and
d) terminate the provision of the Services to the Client;
without prejudice to Benchmark.aiʼ any other rights, including but not limited to its rights as set out in clause 8.10 of these Terms of Use.
7.10. No Deductions or Set-offs. The Client is not entitled to set-off (in Dutch: verrekenen) or suspend (in Dutch: opschorten) any payment or due amount, for any reason whatsoever. All amounts payable to Benchmark.ai under this Terms of Use and any Offers shall be paid by the Client to Benchmark.ai in full without any sett-off, recoupment, counterclaim, deduction, debit or withholding for any reasons.
7.11. Amendment of prices and fees. Benchmark.ai may unilaterally change its prices and the agreed subscription fee or introduce fees for the Free Plan at any time. Benchmark.ai shall announce via the Platform any such changes at least thirty (30) calendar days before they take effect. If the Client does not accept such change, the Client can terminate (in Dutch: opzeggen) the use of the Services until the date that the change takes effect (i.e. until 30 calendar days after the change has been announced through the Services). Use of the Services after the date on which the change has taken effect shall constitute the Client’s acceptance of such change.
8. SLA, SUPPORT AND BETA
8.1. Performance of the Services. Benchmark.ai uses reasonable commercial efforts to ensure the availability of the Platform. Benchmark.ai does not provide any specific guarantees as to the availability of the Platform or the performance of the Services, unless separately agreed upon between Benchmark.ai and the Client in writing, for example, if applicable, in a service level agreement.
8.2. Maintenance. Benchmark.ai actively maintains the Platform. Maintenance can take place at any time, even if this may negatively impact the availability of the Services. Maintenance is announced in advance by Benchmark.ai whenever possible.
8.3. Support. If a Client has subscribed to a Free Plan, Benchmark.ai will not provide any direct support to the Client, but online manuals and other documentation is available at: www.benchmark.ai. If a Client has subscribed to a paid Pricing Plan, Benchmark.ai undertakes to provide technical assistance related to the proper functioning of the Services.
8.4. Beta. If Benchmark.ai grants to the Client specific functioning of the Platform or the Services in alpha, beta or similar mode (“Beta”), the use thereof is permitted only for the trial purpose of the Client during the period designated, in Benchmark.ai’ sole discretion, by Benchmark.ai. The use of Beta is optional and either Party may discontinue its use or provision at any time and for any reason. The Client is aware and accepts that the Beta may be incomplete, not properly functioning or include features that Benchmark.ai may, in its sole discretion, never release. It is understood that Beta is provided on an “as is” basis and is excluded from any form of minimum level of functionality guaranteed by Benchmark.ai under these Terms of Use or elsewhere, if any. Benchmark.ai grants to the Client a non-exclusive, revocable, non-sublicensable and non-transferable license to use the Beta for testing purposes only. Benchmark.ai does not provide any guarantee, indemnity or support for Beta and, except in cases of intent and gross negligence, any form of liability of Benchmark.ai is excluded. Benchmark.ai recommends that the Client use all due caution and not rely in any way on the proper functioning or performance of the Beta and / or any accompanying documentation.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Intellectual Property Rights. The Services, the Platform, the Website and all accompanying software as well as all information, images, audio-visual material and texts are protected by the Intellectual Property Rights of Benchmark.ai and/or its licensors. None of these items may be copied or used without prior written permission of Benchmark.ai, except and to the extent permitted by mandatory law.
9.2. Use of Services. The Client obtains the right to use the Services, which right of use shall always be non-exclusive, non-transferable and non-sublicensable, and under the condition precedent of payment of the applicable fees (Article 8). The Client may use the Services solely in, and on behalf of, its own company or organization and for the intended use only.
9.3. Information. Information the Client stores or processes using the Services is and remains the property of the Client and the Client’s risk and responsibility. In as far as necessary, Benchmark.ai receives a license to use this information in relation to (the operating of) the Services, including for any future aspects or improvements thereof.
9.4. Trade names, trademarks and logos. The Client is not authorized to use Benchmark.aiʼ trade name(s), trademark(s) and/or logo(s), also not in the context of promotional activities, including listing on the Client’s website, without Benchmark.aiʼ prior written consent. Benchmark.ai is a registered trademark.
10. CONFIDENTIALITY
10.1. Confidential Information. Each Party acknowledges that it may have access to certain confidential information of the other Party concerning the other party's business, plans, clients, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, client and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each Party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by these Terms of Use, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants, and other advisors as reasonably necessary), any of the other Party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) the receiving party can demonstrate by written or other documentary records is independently developed by the receiving party without reference to or use of any Confidential Information.
11. PRIVACY AND DATA PROTECTION
11.1. Privacy Policy. Each Party undertakes to comply with the data protection legislation applicable at the time and place and to process all personal data and information of the other Party, its legal representatives and/or employees and/or collaborators to which it may have access in the context of the conclusion and execution of these Terms of Use and any Offers, solely for specified and legitimate purposes. Without prejudice to Section 11.2 below, Benchmark.ai will process these data in compliance with its privacy policy, which is available at https://benchmark.ai/privacy.
11.2. Appointment as Data Processor. The Client is solely responsible for the personal data as set out in the General Data Protection Act (the “Personal Data”) processed by the Client following the use of the Services. The Client may act as Data Controller in the sense of the General Data Protection Act, or, as the case may be, as Data Processor. Benchmark.ai may act as Data Processor or, as the case may be, as Sub Data Processor. By making use of the Services and in accordance with article 28 of the GDPR, having considered Benchmark.ai as a suitable and reliable company, the Client appoints Benchmark.ai as the Data Processor or, as the case may be, as Sub-Data Processor. Benchmark.ai accepts this appointment and confirms to have the in-depth knowledge of any related obligations, representing to have the ability, expertise, and skills as required to take on such role. Benchmark.ai undertakes to process the Personal Data in compliance with the instructions and provisions set forth under the data processing agreement attached as Annex A to these Terms of Use.
11.3. Resultant Data. As established between the Parties, Benchmark.ai holds all rights to the use of statistical information, data and related analyses in aggregate form, deriving from the Clients’ use of the Platform and the Services (“Resultant Data”). The Resultant Data is in aggregate and or anonymized form and does not include Personal Data. The Client expressly authorizes Benchmark.ai to use the Resultant Data in order to improve the functioning of the Platform and the Services or for statistical information that may be published in aggregate form.
12. REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
12.1. Client’s Representation and Warranties. The Client represents and warrants: (i) that all Client’s materials, contents of the messages, data and information provided by the Client to Benchmark.ai is complete, accurate and updated; (ii) that the Client is entitled to authorize, and does authorize Benchmark.ai to exercise all rights necessary to be able to provide the Services to the Client via the Platform; and (iii) Client’s materials, contents of the messages, data, and information provided by Client when using the Services and the Platform do not violate any applicable law or regulation.
12.2. Client’s Indemnification. The Client shall indemnify, defend and hold harmless (in Dutch: vrijwaren en schadeloos stellen) Benchmark.ai and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, successors and assigns (each a “Benchmark.ai Indemnitee”) from and against any all damages, losses, liabilities, costs, charges and expenses, including any legal fees and expenses, incurred or suffered by such Benchmark.ai Indemnitee:
i. that would not have been incurred or suffered if (a) Client had fulfilled the obligations undertaken upon entering into these Terms of Use and/or (b) the representations and warranties provided by Client when entering into these Terms of Use had been truthful, accurate, complete, and not misleading;
ii. in connection with any claim, suit, action or proceeding by a third party that arise out of or relate to any (a) Client’s materials, including any processing of Client’s Personal Data by or on behalf of Benchmark.ai in accordance with these Terms of Use; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client, including Benchmark.ai’ compliance with any specifications or directions provided by or on behalf of Client; (c) allegation of facts that, if true, would constitute Client's breach of any of its representations, warranties, covenants or obligations under these Terms of Use; and/or (d) negligence act or omission by Client or any third party (including employees, personnel and collaborators) on behalf of Client, in connection with these Terms of Use.
12.3. No Warranties, Commitments or Indemnifications. Except as otherwise expressly provided in this Terms of Use or in any Offer or SOW, Benchmark.ai does not provide any warranties, commitments or indemnifications in any form whatsoever regarding the quality, safety, legality, integrity, suitability and correctness of the Services and/or the Platform.
13. LIMITATION OF LIABILITY
13.1. Benchmark.ai’ Liability. Benchmark.ai shall not have any liability, whether in contract or tort (including negligence), for breach of statutory or contractual duty, or otherwise, arising under or in connection with the provision of the Services, the Offer and/or the Terms of Use for (i) any indirect or consequential damages or any kind whatsoever and however caused and/or (ii) loss of use, profit, revenues, business, goodwill, production, turnover, anticipated savings and/or the like and/or (iii) any damages resulting from information stored by the Client on its account and/or the Platform.
13.2. Limitation of liability. Benchmark.aiʼ liability, whether in contract or tort (including negligence), for breach of contractual and/or statutory duty, or otherwise, arising under or in connection with the provision of the Services, the Offer and/or the Terms of Use shall not exceed the amount paid by the Client in the three months prior to the moment the cause of the damage occurred, with a maximum of EUR 15,000 (in words: fifteen thousand euro).
13.3. No exclusion or limitation of liability regarding following events. Nothing in these Terms of Use shall intend to exclude or limit the liability of Benchmark.ai: (i) for death or personal injury resulting from the negligence of Benchmark.ai or its employees acting in the course of their employment (ii) for fraudulent misrepresentation or any other fraud (iii) for damage caused by gross negligence (in Dutch: bewuste roekeloosheid) or wilful misconduct (in Dutch: opzet) of Benchmark.ai or its managerial personnel (in Dutch: leidinggevend personeel) and/or (iv) for any loss or liability which is not permitted to be excluded or limited by law.
13.4. Obligation to report damages. Damages may only be claimed if reported by the Client in writing to Benchmark.ai no longer than two months after discovery thereof by the Client.
13.5. Notice of default. Unless performance (in Dutch: nakoming) by Benchmark.ai is permanently impossible, Benchmark.ai shall only be liable for attributable failures in the performance of providing the Services in accordance with the Offer and these Terms of Use if the Client immediately, or as soon as reasonably possible, sends Benchmark.ai a written notice of default (in Dutch: ingebrekestelling), detailing the non-performance on the side of Benchmark.ai and setting a term of at least one month (or longer, if deemed reasonable by Benchmark.ai depending on the nature of the non-performance), for the remedy of the failure by Benchmark.ai, and Benchmark.ai, also after this term has lapsed, has failed to remedy the non-performance. The notice of default must contain a complete and detailed description of the failures (substantiated with written evidence, where possible) so that Benchmark.ai is given the opportunity to respond adequately.
13.6. Force Majeure. In case of a Force Majeure event (which shall in any event also include Covid-19 or any variants thereof and/or any other pandemic and any measures taken by the government or any other local authority in that respect), Benchmark.ai cannot be held to compensate damages suffered by the Client and Benchmark.ai is entitled to suspend or terminate the provision of the Services.
14. GOVERNING LAW AND JURISDICTION
14.1. Governing Law. The laws of the Netherlands apply to these Terms of Use, the Offer, the provision of the Services as well as to any other (legal) acts between Benchmark.ai and the Client. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) is hereby excluded.
14.2. Jurisdiction. All disputes (whether contractual or non-contractual) arising from or in connection with these Terms of Use, the Offer, the provision of the Services as well as to any other (legal) acts between Benchmark.ai and the Client shall be submitted exclusively to the court of Overijssel, the Netherlands.
15. MISCELLANEOUS
15.1. Deviations. Deviations from these Terms of Use are valid only if they have been accepted in writing by Benchmark.ai.
15.2. Terms of Client. Applicability of any terms of the Client, including the Client’s terms and conditions of purchase, is hereby expressly rejected.
15.3. Modify or supplement Terms of Use. Benchmark.ai reserves the right to modify or amend any of the terms of this Terms of Use. All amendments will be effective from the moment in which the new version of the Terms of Use is published on our Website or communicated by email to the email address provided by the Client. The subsequent use of the Platform and/or the Services is to be deemed an acceptance by the Client of the same amendments and/or supplements. In the event that the Client does not intend to accept those changes, the Client shall terminate the Terms of Use and all the related Services notifying Benchmark.ai by registered mail within 10 (ten) days from the receipt of the aforementioned email or from the publishing of the new version of the terms of this Terms of Use. In this case, the Client will not be entitled to a refund for any prepaid amounts or reimbursement for unused Services and Benchmark.ai will reserve the right to demand any outstanding fee.
15.4. Void provision. If a provision of the Offer and/or the Terms of Use is void or is voided, the other provisions will remain fully in effect. In such case, Benchmark.ai and the Client will consult with one another to agree new provisions to replace the void or voided ones, in which the purpose and meaning of the void or voided provisions will be taken into account to the extent possible.
15.5. Communication. The version of any communication and/or (monitored) information as recorded by Benchmark.ai shall be deemed to be authentic, unless the Client supplies proof to the contrary.
15.6. Transfer rights and obligations. Benchmark.ai is entitled to transfer its rights and obligations towards the Client under the Offer and/or these Terms of Use to a third party as part of an acquisition of the Services or associated business activities.
15.7. Headings. In these Terms of Use the headings of articles, sections, portions or paragraphs of the Terms of Use and the Offer are for ease of reference only and shall not affect the interpretation of the respective rights and obligations of Benchmark.ai and the Client and shall not form any part of the Terms of Use and the Offer.
15.8. Wording. The wording of the Terms of Use and the Offer shall be decisive in interpreting the mutual rights and obligations of Benchmark.ai and the Client.
15.9. Order of precedence. If the Offer, the Terms of Use, the Data Processing Agreement or any Annexes attached thereto appear to be contradictory, the following order of priority will apply:
a) the Offer;
b) the SOW (if any);
c) the Terms of Use (as updated from time to time);
d) the Data Processing Agreement;
e) the Annexes, whereby an Annex with an earlier number shall prevail over any Annexes with a later number (e.g. 1 shall prevail over 2, and 2 shall prevail over 3 etc.), unless the Annex with the later number expressly states that it takes precedence over (an inconsistent or conflicting term in) the Annex with an earlier number.
15.10. Feedback. The Client may provide or Benchmark.ai may ask the Client to provide suggestions, comments, input or other feedback regarding the Benchmark.ai Platform and the Services (“Feedback”). If the Client provides Benchmark.ai with any Feedback, then you grant Benchmark.ai a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as Benchmark.ai sees fit. Any Feedback the Client chooses to provide is given entirely voluntarily. The Client is aware and accepts that it will not receive any compensation for its Feedback, and that Benchmark.ai may use any Feedback Client provides to improve the Benchmark.ai Platform and the Services or to develop new features and services.
15.11. Notice. Any notice to the Client will be effective when Benchmark.ai sends it to the last email or physical address the Client gave to Benchmark.ai or when posted on Benchmark.ai’ website. The Client is aware and accepts that, for purposes of providing notice, Benchmark.ai may use any email or physical address within the Client's account, including contact information associated with an account’s primary contact, billing contact, owner profile, or any other profile or seat associated with the account. Any notice to Benchmark.ai will be effective when receipt by Benchmark.ai in compliance with this Terms of Use.
ANNEX A
DATA PROCESSING AGREEMENT
This data processing agreement (the “Data Processing Agreement”) is in addition to the Terms of Use entered between Benchmark.ai B.V. (“Benchmark.ai”) and the Client that incorporates this Data Processing Agreement by reference (the “Terms of Use”) and governs the Processing of Personal Data by Benchmark.ai in providing its service pursuant to the Agreement. This Data Processing Agreement contains the provisions of Article 28 GDPR as interpreted by the European Data Protection Board in Opinion 14/2019. The Data Processing Agreement will be effective and supersede any other previously applicable agreement between the parties relating to the same subject matter (including any amendment or addendum to the processing of data relating to the Processor Services), from the Effective Date and for the entire Terms of Use Term.
1. PREAMBLE
The Data Processing Agreement reflects the agreements of the parties on the processing of Client Personal Data as governed by European and Domestic Legislation.
2. DEFINITIONS
2.1 All capitalized terms in the Data Processing Agreement shall have the following meanings:
“Additional Instructions” refers to the additional instructions which reflect the Parties' agreement on the additional conditions governing the processing of certain data in relation to certain Processor Services.
“Client Personal Data” refers to the personal data processed by Benchmark.ai on behalf of the Client in the provision of the Processor Services.
“Data Breach” refers to a breach of Benchmark.ai security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Client Personal Data on systems managed or otherwise controlled by Benchmark.ai.
“EEA” refers to the European Economic Area.
“Effective Date” has the meaning defined in the Definition section of the Terms of Use.
“European and Domestic Legislation” refers to the GDPR and the EU Member State legislation applicable to the processing of Client Personal Data.
“GDPR” refers to Regulation (EU) 2016/679 of the European Parliament and of the Council dated 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC.
“Notification E-mail Address” refers to the email address entered by the Client in the Registration Form or any email address provided in compliance with Section 16.11 of the Terms of Use.
“Term” has the meaning defined in the Definition section of the Terms of Use.
“Security Documentation” refers to any security certification or documentation that Benchmark.ai makes available in relation to the Processor Services as referred to in Appendix 2.
“Security Measures” has the meaning set out in Section 7.1.1. (Security Measures on Benchmark.ai systems).
“Sub-processors” refers to the third parties authorized under this Data Processing Agreement to process Client Personal Data in order to provide part of the Processor’s Services and/or any related technical support and described in Appendix 3.
“Subsidiary” refers to a legal entity belonging to a corporate group, which directly or indirectly controls has control or is controlled by another party.
“Supervisory Authority” refers to a "supervisory authority" as defined in the GDPR.
“Processor Services” refers to the services optioned in the Terms of Use and described collectively in Appendix 1.
“Transfer Mechanisms” refers to a binding decision issued by the European Commission allowing the transfer of personal data from the EEA to a third country whose domestic law provides an adequate level of personal data protection. Where such binding decision is not available or effective, this definition refers to the EU Standard Contract Clauses approved as needed by the European Commission for the transfer of personal data, as well as the Binding Corporate Rules (BCRs).
2.2 The terms “Personal Data”, "Data Subject”, “Processor”, “Controller” and “Processing” have the meanings indicated in the GDPR.
2.3 The terms “include” and “included” are illustrative and are not the only examples of a particular concept.
2.4 Any reference to a law, regulation, statute, or other legislative act is a reference to these as amended or reformulated as required.
2.5 If this Data Processing Agreement is translated into another language and there is any discrepancy between the English text and the translated text, the English text shall prevail.
3. TERM
This Data Processing Agreement shall remain in effect for as long as Benchmark.ai carries out Processor Services or until termination of the Terms of Use.
4. SCOPE
4.1 Benchmark.ai Services. This Data Processing Agreement applies only to the Services for which the parties agreed to enable, and therefore to the services specified in the Terms of Use.
4.2 Additional Instructions. During the Term, the Client may provide Benchmark.ai with Additional Instructions, which Benchmark.ai may not refuse without just cause if such Additional Instructions are necessary to permit compliance of the Client with any European or domestic legislation. In all other cases, Benchmark.ai has the faculty to negotiate the content of the Additional Instructions with the Client and will be under no obligation to implement them until an agreement is reached. Once both Parties have confirmed the Additional Instructions, these shall be considered integral part of this Data Processing Agreement.
4.3 Costs due to Additional Instructions. The Additional Instructions and/or supplements, amendments or reductions thereto shall not lead to any additional costs to Benchmark.ai; if this is not the case, the Client acknowledges and accepts that all costs directly or indirectly due to the adjustment by Benchmark.ai to the Additional Instructions, shall be at the exclusive expense of the Client.
4.4 Prohibited data. Client will not provide (or cause to be provided) any Special Category of Personal Data to Benchmark.ai for processing under the Terms of Use, and Benchmark.ai will have no liability whatsoever for Special Category of Personal Data, whether in connection with a Data Breach or otherwise. For the avoidance of doubt, this Data Processing Agreement will not apply to the Special Category of Personal Data.
5. PROCESSING OF DATA
5.1 Roles, responsibilities and instructions. The Parties acknowledge and agree that: (a) Appendix 1 describes the subject matter and details of the processing of Client Personal Data; (b) Benchmark.ai acts as Data Processor or, depending on the circumstances, as Sub-Data Processor of the Client Personal Data under European and Domestic Legislation; (c) Client acts as Controller or Processor, as applicable, of Client Personal Data under European and Domestic Legislation; and (d) each Party shall comply with the obligations applicable to it under European and Domestic Legislation with respect to Client Personal Data.
5.2 Authorization by the third Controller. If the Client acts as Processor on behalf of a Subsidiary of the Client or other Controller, Client represents and warrants Benchmark.ai that the instructions and actions of the former in relation to Client Personal Data, including the appointment of Benchmark.ai, have been authorized by the respective Controller.
5.3 Client Instructions. By entering into this Data Processing Agreement, the Client appoints Benchmark.ai to process Client Personal Data: (a) only in accordance with applicable law: (b) only to supply the Processor’s Services and any related technical services; (c) as further specified/indicated by Client through its use of the Processor’s Services (including changes to the settings and/or functionality of the Processor’s Services) and any related technical support; (d) as documented by Terms of Use, including this Data Processing Agreement; (e) in order to guarantee security levels adequate to the risk; and (f) as further documented in any written instructions provided by the Client to Benchmark.ai as further instructions for the purposes of this Data Processing Agreement.
5.4 Benchmark.ai compliance with the instructions. Benchmark.ai shall comply with the instructions given in Section 5.3 unless the European or National Legislation to which it is subject requires Benchmark.ai to conduct different or further processing of Client Personal Data (e.g., transfer of Personal Data to a third country or international organization), in which case Benchmark.ai shall promptly inform Client at the Notification E-mail Address (unless such legislation prohibits Benchmark.ai from doing so on significant grounds of public interest).
6. RETURN OR DELETION OF DATA
6.1 Deletion and export through the Benchmark.ai Platform functionality. If the Processor Services include the possibility for the Client to export Client Personal Data autonomously and in interoperable format, Benchmark.ai shall ensure, insofar as possible, that this operation is guaranteed for the entire Term and in any case in compliance with any further provisions contained in the Terms of Use. If the Processor Services include the possibility for the Client to independently erase Client Personal Data, Benchmark.ai shall ensure, insofar as possible, that this operation is guaranteed for the entire Term, unless European or domestic legislation requires storage of such data for a longer period. In the latter case, Benchmark.ai shall process Client Personal Data only for the purposes and period defined by such legislation. Any further, specific provisions contained in the Terms of Use shall remain valid in any case.
6.2 Deletion and export on the Expiration Date. Upon the Expiration Date, Benchmark.ai shall act in compliance with the Terms of Use, which is deemed to be referred to in full herein.
7. DATA SECURITY
7.1 Security measures and assistance by Benchmark.ai.
7.1.1 Security Measures on Benchmark.ai systems. Benchmark.ai shall adopt and maintain technical and organizational measures to protect Client Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2. Taking into account the state of the art and the costs of implementation, as well as the nature, scope, context and purpose of the processing carried out through the Processor Services, as well as the variability, likelihood and severity of the risk to the rights and freedoms of natural persons, Appendix 2 shall at all times include security measures: (a) to help ensure the ongoing confidentiality, integrity, availability and resilience of Benchmark.ai systems and services; (b) to help restore personal data promptly following an incident; and (c) to periodically verify effectiveness of the measures. Benchmark.ai may update or amend the Security Measures from time to time, provided that such updates and modifications do not lead to degradation of the overall security of Processor Services.
7.1.2 Security Measures for Benchmark.ai personnel. Benchmark.ai shall take appropriate steps to ensure compliance with the Security Measures by all persons operating under its authority, including its employees and Subprocessors, insofar as applicable to the scope of their services, including assurances that all persons authorized to process Client Personal Data have signed non-disclosure agreements or are subject to appropriate statutory obligations to of confidentiality in accordance with European and Domestic Legislation.
7.1.3 Benchmark.ai data security assistance. Benchmark.ai shall reasonably assist the Client in ensuring compliance with any obligations regarding the security of personal data and personal data breaches, including (if applicable) the obligations of the Controller pursuant to Articles 32 to 34 of the GDPR, through:
(a) the implementation and maintenance of Security Measures in accordance with Section 7.1.1.;
(b) the implementation of the provisions of Section 7.2; and
(c) providing the Client with Security Documentation in accordance with Section 7.5.1 and the information provided for in this Data Processing Agreement.
7.2 Data Breach.
7.2.1 Due Diligence. Benchmark.ai adopts due diligence in monitoring the security of Client Personal Data processed in the provision of the Processor Services.
7.2.2 Data Breach Notification. In the event Benchmark.ai becomes aware of a Data Breach, Benchmark.ai shall: (a) inform the Client of the Data Breach without undue delay; and (b) promptly take reasonable steps to mitigate any damage and secure the Client Personal Data; (c) cooperate with the Client in the investigation of the causes and gravity of the Data Breach.
7.2.3. Data Breach Details. Notifications made pursuant to Section 7.2.2 shall describe the details of the incident (also through additional notifications), including the categories and approximate number of Data Subjects involved and the personal data records affected, the potential risks to the Data Subjects and the steps that the Benchmark.ai has taken or recommends the Client adopts to address the Data Breach and mitigate its effects. If it is not possible to provide the above specific information within the time allowed, Benchmark.ai shall explain the reasons for the delay to the Client, in any case providing the Client with any initial information concerning the breach for the purposes of the related notification.
7.2.4 Data Breach Notification. Benchmark.ai shall deliver notification of any Data Breach to the Notification E-mail Address.
7.3 Client security responsibility and assessment.
7.3.1 Client Security Responsibilities. Without prejudice to the obligations of Benchmark.ai under Sections 7.1 and 7.2, the Client acknowledges that it is the sole party responsible for the use of the Processor Services, including the protection of authentication credentials, systems and devices used by the Client to access the Processor Services.
7.4 Security Certification. To evaluate and help ensure the continued effectiveness of the Security Measures, Benchmark.ai may, at its sole discretion, supplement the Security Measures and Security Documentation with certifications (e.g., ISO27001), codes of conduct and/or certification procedures.
7.5 Checks and Audits.
7.5.1 Security Documentation Review. In order to demonstrate Benchmark.ai compliance with its obligations under this Data Processing Agreement, Benchmark.ai shall make information on the technical, organizational and security measures available to the Client, in addition to any other information available and necessary for Client compliance with regulations, and which should be formally requested in writing by the Client for compliance with its legal obligations and to demonstrate the adoption of adequate technical and organizational measures.
7.5.2 Client Audit Rights. The parties agree that: (a) Benchmark.ai shall contribute to the inspection and audit activities the Client wishes to conduct, either directly or through a third party appointed by the latter; (b) such activities shall be conducted with a view to safeguarding normal Benchmark.ai operations; (c) the use of the information which the Client and any third party appointed by the Client should become aware of during the audit must be previously regulated by a specific non-disclosure agreement.
7.5.3 Further Conditions for Audits. To conduct an audit: (a) the Client shall send the request for audit to Benchmark.ai pursuant to Section 7.5.2(a) as described in Section 12.1, giving notice of at least 90 (ninety) calendar days, it being understood that such activities may not be conducted by the Client more than once (1 time) per year and, in any case, if less than 12 (twelve) months have passed since the last audit by the Client; (b) upon receipt of a request pursuant to Section 7.5.3(a) from the Client, Benchmark.ai undertakes to discuss and agree in advance on the start date, scope and duration, security and confidentiality controls applicable to the audit pursuant to Section 7.5.2(a); (c) nothing in this Data Processing Agreement shall require the Benchmark.ai to disclose or grant access by the Client or third-party auditor to: (i) data of any other client of Benchmark.ai; (ii) any Benchmark.ai internal accounting or financial information; (iii) any Benchmark.ai trade secret or know-how; (iv) any information that could compromise the security of Benchmark.ai systems or premises; or cause Benchmark.ai to breach its obligations under European and Domestic Legislation or its security obligations toward the Client or third parties; or (v) any information to which the Client or third-party auditor seeks access for reasons other than the fulfillment in good faith of the Client’s obligations under European and Domestic Legislation; (d) audits shall be subject to a confidentiality agreement between all parties involved.
7.5.4 Costs. The Client acknowledges and accepts that its costs due to the conduction of audits pursuant to this Section 7.5 (such as, for example, the costs of Client personnel and Client external consultants) shall be at its exclusive expense.
8. DATA PROTECTION IMPACT ASSESSMENTS AND PRIOR CONSULTATION
Benchmark.ai agrees (considering the nature of the processing and the information available to Benchmark.ai) to provide the Client with any reasonable assistance in ensuring compliance with any obligations of the Client regarding data protection impact assessment and prior consultation, including any obligations of the Client pursuant to articles 35 and 36 of the GDPR. The Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Benchmark.ai.
9. RIGHTS OF DATA SUBJECTS
9.1 Response to Data Subject requests. Benchmark.ai ensures adequate protection of the rights of Data Subjects, assisting the Client in the fulfillment of its obligation to follow up requests from Data Subjects to exercise their rights, even if such requests are received by Benchmark.ai. In this event, Benchmark.ai will invite the Data Subject to submit their communication directly to the Client and the Client will be responsible for responding to such request.
9.2 Benchmark.ai assistance in Data Subject requests. Benchmark.ai agrees (considering the nature of the Client Personal Data processing) to provide reasonable assistance to the Client in the fulfillment of its obligations regarding their rights pursuant to Chapter III GDPR through: (a) where possible, the provision of specific functionalities in the Processor Services; (b) compliance with the commitments pursuant to Section 9.1 (Response to Data Subject requests). The Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Benchmark.ai.
10. DATA TRANSFERS
10.1 Data storage and processing facilities. The Client agrees and authorizes Benchmark.ai to process (also through Subprocessors) Client Personal Data both within and outside the EEA, provided that such processing is supported by suitable Transfer Procedures, to be indicated in Appendix 3.
11. SUBPROCESSORS
11.1 Authorization to use Subprocessors. The Client shall grant a general authorization to use Subprocessors for provision of the Processor Services.
11.2 Authorized Subprocessors. The Sub-processors currently engaged by Benchmark.ai and authorized by the Client are available in Appendix 3 of this Data Processing Agreement.
11.3 Requirements for the involvement of Subprocessors. When using a Subprocessor, Benchmark.ai shall: (a) ensure, through a written contract or other binding legal deed that: (i) the Subprocessor may only access and process Client Personal Data to the extent necessary to fulfil the obligations subcontracted to it in accordance with the Terms of Use (including this Data Processing Agreement) and the Transfer Procedures; (ii) the data protection obligations pursuant to article 28(3) GDPR are applied to the Subprocessor; (b) remain fully responsible for all obligations subcontracted to the Subprocessor.
11.4 Faculty to object to change of Subprocessor. The parties agree that: (a) for the entire Term, Benchmark.ai shall notify the Client by email indicating the Subprocessor’s name, activities conducted and country of establishment, as well as the Transfer Procedure, if applicable; (b) the Client may object to such an engagement in writing within five (5) calendar days of receipt of the aforementioned notice by Benchmark.ai, by providing reasonable reasons and documentation. If the Client reasonably objects to an engagement, Benchmark.ai may, at its discretion, i) not use the Subprocessor for the processing of Client Personal Data; or ii) terminate the Terms of Use and all the related Services and Plans by email written notice to the Client within 30 days of receipt of the aforementioned notice by the Client described in Section 11.4(b).Termination shall not relieve the Client of any fees owed to Benchmark.ai under the Terms of Use and shall not entitle the Client to any refund for any prepaid amounts or reimbursement for unused Services.
If the Client does not object to the engagement of a third party in accordance with Section 11.4(b), that third party will be deemed an Authorized Subcontractor for the purposes of this Data Processing Agreement.
12. Benchmark.ai CONTACTS
12.1 Benchmark.ai Contacts. The Client may contact Benchmark.ai with regard to all aspects of this Data Processing Agreement through a) privacy@Benchmark.ai.com; or b) the email addresses used by Benchmark.ai during provision of the Processor Services to receive certain notifications from the Client concerning this Data Processing Agreement.
13. MISCELLANEOUS
13.1 Infringements of rules and regulations. Any provision of the Terms of Use, the Data Processing Agreement and/or the Additional Instructions in conflict with European and National Legislation shall be deemed not to be present herein and shall be replaced in its entirety by provision effectively infringed if it cannot be otherwise resolved through an agreement between the Parties.
13.2 Existing agreements. The Parties agree that this Data Processing Agreement shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.
14. JURISDICTION
14.1 Jurisdiction. In the event of dispute regarding the execution or interpretation of this Data Processing Agreement, the parties assign exclusive jurisdiction to the Court established by the Terms of Use, expressly waiving any other provisions of international law or convention.
Appendix 1: Details of Data Processing
Nature and Purpose of Processing
The provision of the Benchmark.ai Platform and of the Services. The Services offered by Benchmark.ai are a SaaS by means of which the Client can bring data from various internal and external sources together in one central environment, in order to:
- analyze data in order to find patterns and anomalies;
- compare results with the market standards;
Benchmark.ai does not want to, nor does it intentionally, collect or process any Personal Data in connection with the provision of the Benchmark.ai Platform and of the Services.
Duration of processing
The duration of processing shall include the entire Term plus the term until all data is deleted by Benchmark.ai in accordance with the Data Processing Agreement and the provisions of the Terms of Use.
Special Category of Personal Data processed (if applicable)
Benchmark.ai does not want to, nor does it intentionally, collect or process any Special Category of Personal Data as defined under Article 9 of the GDPR in connection with the provision of the Benchmark.ai Platform and of the Services.
Appendix 2: Security measures
As from the Date of Effect, Benchmark.ai shall implement and maintain the Security Measures set out at the following link: https://benchmark.ai/privacy
Benchmark.ai may periodically update or amend the following Security Measures, provided that such updates and amendments do not lead to a deterioration of the overall security of the Processor Services or in any case to a decrease in the security level agreed.
Appendix 3: Sub processors
Part of the activities that allow Benchmark.ai to provide the Processor Services may be delegated to Sub processors:
| Company | Services | Place of Establisment |
| DigitalOcean | Infrastrucrural & network services | Amsterdam, NL, Europe |