Powster

General Terms and Conditions

Effective from 1 May 2024

These General Terms and Conditions together with any Platform Statements of Work or Creative Statements of Work contain the terms and conditions under which Powster will make the Services available to the Partner (collectively, the “Agreement”). The Partner agrees to be bound by the Agreement by either executing the relevant Statement of Work or otherwise accessing the Services.

Interpretation
1. In this Agreement, the following words and expressions shall have the meaning ascribed to them as below:
  "Agreement Term” has the meaning given to that term in clause 9;
  
  “Business Day” means a day other than a Saturday, Sunday or public holiday in Los Angeles, California (if the Governing Law is State of California, USA) or London, England (if the Governing Law is England and Wales);
  
  “Commencement Date” means the date stated in the relevant SOW;
  
  “Completion Date” means the date stated in the relevant SOW;
  
  “Confidential Information” means the existence and contents of the Agreement and all information whether technical or commercial (including all specifications, drawings, designs, videos, copy and other assets disclosed in writing, on disc, electronically, orally or by inspection of documents or during discussions between the parties), where the information is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure. Confidential Information does not include any information which was: (a) on receipt by the non-disclosing party, in the public domain or which subsequently enters the public domain without any breach of the Agreement; (b) on receipt by the non-disclosing party, already known from a third party source; (c) at any time after the date of receipt, lawfully received in good faith from a third party who is not bound by any confidentiality obligations to the disclosing party; or (d) independently developed by the non-disclosing party without any breach of the Agreement and without use of or reference to any Confidential Information;
  
  "Creative Platform” means the creative platform, creative project, hosted creative solution or similar product or service relating to the theatrical release of a Film, VOD release, brand or other media as provided by Powster to Partner under a Creative SOW and as further detailed in the Specifications of that Creative SOW;
  
  “Data Protection Laws” means applicable legislation protecting the personal data of natural persons, together with binding guidance and codes of practice issued from time to time by relevant Supervisory Authorities and/or any local data protection law applicable in respect of Personal Data collected by the Partner and Processed by Powster under the Agreement, including as amended or replaced from time to time;
  
  “Exhibitor Ticketing Data” means any data provided by a User via the Platform for ticketing purposes and transferred by Powster to the relevant cinema exhibitor to enable ticketing;
  
  “Fee” means the fees stated in a Statement of Work;
  
  “Film” means the motion picture as advised by the Partner, for which a Platform will be prepared for (as applicable);
  
  “Force Majeure Event” means an act of God, act of governmental body or military authority, fire, explosion, flood, epidemic, pandemic, riot, strikes, lock outs or other industrial disputes, changes in law, failure of third party suppliers, shortages of supplies or raw materials, or civil disturbance, war, sabotage, insurrections, blockades, embargoes, storms or other similar events that are beyond the reasonable control of the affected party. Notwithstanding the foregoing, Force Majeure Event expressly excludes any event which could have been prevented by reasonable precautions and could reasonably be circumvented by the non-performing party through the use of alternate sources, work-around plans or other means;
  
  “Governing Law” has the meaning given to that term in a Statement of Work;
  
  “Inappropriate Content” means content which infringes any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights);
  
  “Intellectual Property Rights” means all trademarks, service marks, business names and domain names, rights in get-up and trade dress, goodwill, the right to sue for passing off or unfair competition, patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  
  “Partner Data” means data of Users collected by, or on behalf of, the Partner through the Platform, including any Personal Data Processed by Powster on behalf of the Partner under the Agreement that forms part of such data;
  
  “Partner IP” means any Intellectual Property Rights owned by or belonging to the Partner prior to the Commencement Date;
  
  “Partner Materials” means such content, materials and deliverables (including works that are derived or adapted from such materials) that were created or licensed by the Partner and provided to Powster in connection with this Agreement;
  
  “Payment Terms” means the applicable payment schedule set out in a Statement of Work;
  
  “Platform” means a Powster Platform and/or a Creative Content Platform, as the context requires;
  
  “Platform Term” has the meaning set out in a Statement of Work;
  
  “Powster Platform” means a marketing website platform or the official movie platform for the theatrical release of the Film(s) (including any ‘Showtimes’ platforms) provided by Powster to Partner under a Platform SOW and as further detailed in the Specifications of that SOW;
  
  “Services” means the design, development, delivery, management and support of the relevant Platform;
  
  “Specifications” means the requirements and specifications for the Platform and Services as set out in the Specifications Schedule to a Statement of Work;
  
  “Statement of Work” or “SOW” means a statement of work entered into between the Parties, substantially on Powster’s standard form, which will be incorporated into the Agreement when executed by the Parties, identifying a particular scope of work for any Powster Platform, Creative Content Platform and Services to be provided to the Partner pursuant to the Agreement. A “Platform SOW” means a statement of work in respect of a Powster Platform, and a “Creative SOW” means a statement of work in respect of a Creative Content Platform;
  
  “Territory” means the countries or regions listed in a Statement of Work and any additional country agreed between the Parties in writing for which a localised version of the Platform is developed; and
  
  “User” means any third-party end-user of a Platform.
2. The terms "Data Controller", "Data Processor", "Data Subject", "Personal Data", “Sensitive Personal Data”, "Personal Data Breach", “Sub-Processor”, “Supervisory Authority” and "Process, Processed or Processing" have the same meaning given to them (and equivalent expressions) in the Data Protection Laws.
3. References to Clauses and Schedules shall be references to clauses and schedules in this Agreement. Clause and Schedule headings do not affect the interpretation of this Agreement.
4. Unless the context requires otherwise, words in the singular shall include the plural and in the plural include the singular and references to ‘including’ shall mean ‘including without limitation’.
5. References to any legislation shall include a reference to that legislation as may be amended, superseded or replaced.
6. Each signed Statement of Work is governed by these General Terms and Conditions. In the event and to the extent only of any conflict between the terms of the Statement of Work and these General Terms and Conditions, the terms of the Statement of Work shall prevail.
7. References to ‘writing’ or ‘written’ shall include e-mail.
Powster’s Responsibilities
1. Powster shall provide the Services in accordance with the Specifications and shall use reasonable commercial endeavours to deliver the Platform by the Completion Date exercising the level of skill, care and diligence which would reasonably be expected of an experienced and professional provider of services similar to the Services.
Partner’s Responsibilities
1. You shall:
  (a) fully assist and co-operate in a timely manner and in accordance with Powster’s reasonable requests;
  
  (b) pay the Fees in accordance with the Agreement;
  
  (c) provide Powster with access to and use of all information, data and Partner Materials reasonably required by Powster for the performance of its obligations under this Agreement (including, for the avoidance of doubt, all privacy policies, cookie banners, terms of use and other legal notices required to be published on your Platform); and
  
  (d) be responsible for the Partner Data (including user data) in accordance with clauses 6.7 and 14.
2. You shall not:
  (a) except to the extent expressly permitted under the Agreement, attempt to copy, duplicate, create derivative works from, mirror, republish, download, reverse compile, disassemble, reverse engineer all or any portion of the Services in any form or media or by any means;
  
  (b) sell, resell, rent, lease, sublicense, lend, assign, timeshare or make available the Services to any third party; and
  
  (c) undermine or attempt to undermine the integrity or security of the Services, Platform or Powster’s systems, networks or resources.
Additional Features and Localisation
1. If you would like the Platform to: (a) include additional features not set out in the Agreement (including after delivery); or (b) be localised for additional Territories, you should make such a request in writing to Powster. Upon receipt of such written request, Powster shall consider the request and provide you with a quotation for the cost of implementing such change. No new features or localisation in other Territories will be implemented unless agreed in writing between the Parties.
Fees and Payment
1. In consideration for Powster developing the Platform and providing the Services, the Partner will pay the Fee to Powster.
2. Additional fees, costs or charges may be payable where:
  (a) you request changes to the Platform or Services after the Commencement Date;
  
  (b) you fail to approve elements in accordance with the timeline as supplied by Powster (or if no timeline is supplied, in a timely manner);
  
  (c) you fail to provide Partner Materials in accordance with the timeline as supplied by Powster (or if no timeline is supplied, in a timely manner); or
  
  (d) additional amounts are specifically agreed to in writing by Powster and the Partner.
3. Powster shall invoice for the Fee due in accordance with the Payment Terms.
4. Unless otherwise stipulated in a Statement of Work, the Partner shall pay to Powster without set-off or deduction the Fee set out in Powster’s invoice within thirty (30) days of the date of such invoice.
5. All Fees are exclusive of VAT, goods and services taxes, sales tax or similar taxes (if any) which shall be added to each invoice at the applicable rate and paid by the Partner in accordance with Clause 5.4 above.
6. If the Partner is required by law to deduct or withhold taxes or charges from the amounts due to Powster under the Agreement, the Partner will ensure that the amount due to Powster is increased so that the payment actually made to Powster equals the amount due to Powster as if no such taxes or charges had been imposed.
7. If the Partner fails to make any payment due to Powster under the Agreement by the due date of payment, then, without limitation to Powster’s other remedies, the Partner shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Partner shall pay the interest together with the overdue amount.
Intellectual Property Rights and Ownership
1. Subject to clause 6.3, all Intellectual Property Rights in the Platform, including in the content of the Platform and Platform software but excluding the Partner Materials and Partner IP, shall be the sole and exclusive property of Powster worldwide and in perpetuity. Powster hereby grants the Partner an exclusive, non-transferable, non-sublicensable and limited licence of such Intellectual Property Rights for the duration of the Platform Term for the sole purpose of using and operating the Platform.
2. On Partner’s instructions, Powster may incorporate Partner Materials and Partner IP into the Platform. Powster acknowledges that all Partner Materials and Partner IP shall be the sole and exclusive property of the Partner or its licensees. Powster shall not have, or make any claim to, any interest in, or ownership of, or any rights to, any such Partner Materials or Partner IP. The Partner hereby grants to Powster a non-exclusive, irrevocable, fully paid-up, royalty-free and perpetual right and licence, throughout the universe to reproduce and use, and to sub-license to third parties for their reproduction and use, the Partner Materials and Partner IP, solely for the purpose of providing the Services to Partner.
3. To the extent that the Platform includes artificial intelligence functionality developed by Powster (“Powster AI”) or a third party (“Third Party AI”) which enables Users to provide inputs into the Platform (“Input”) and receive output generated and returned by that AI interface (“Output”), as between Powster and Partner, all Intellectual Property Rights in the Input and the Output shall be the sole and exclusive property of Partner worldwide and in perpetuity. The Partner will be responsible for the Inputs and Outputs, including ensuring that it does not violate any applicable law or third party IP rights. Partner acknowledges that machine learning and AI technology is subject to inherent limitations, uncertainties and risks and Powster provides the Powster AI or Third Party AI (as applicable) on an ‘as is basis and makes no representations, warranties or conditions, either express or implied about the Powster AI or Third Party AI (as applicable), including, without limitation, as to the reliability, fitness for purpose, non-infringement, accuracy, merchantability or performance of the Powster AI, Third Party AI or the Outputs. Powster excludes all liability related to the Powster AI, Third Party AI or the Outputs to the fullest extent permitted by applicable law, including for any damage to software, damage to or loss of data, loss of profit, goodwill, reputation or business opportunity or for any indirect or consequential loss or damage. The Partner hereby grants to Powster a non-exclusive, irrevocable, fully paid-up, royalty-free and perpetual right and licence, throughout the universe to reproduce and use, and to sub-license to third parties for their reproduction and use, the Inputs and the Outputs solely for the purpose of providing the Platform and Services to Partner.
4. Nothing in this Agreement shall operate so as to transfer any right, title or interest in the Intellectual Property Rights of one party to the other, save as expressly stated herein.
5. You shall not, and shall not allow any third party to, register or attempt to register, any trade mark, trade name or other Intellectual Property Rights related to the Platform or Services (except in respect of Partner Materials and Partner IP) with any public or private authority.
6. You agree to execute, at any time upon Powster’s request, such further documents or do such other acts as may be required to evidence or confirm Powster’s ownership of any of the Intellectual Property Rights in the Platform.
7. The Partner shall be the sole and exclusive owner of all Partner Data excluding any Exhibitor Ticketing Data.
8. Title to, and all Intellectual Property Rights in, the Exhibitor Ticketing Data, as between Powster and the Partner, remains the property of Powster (or its licensors) and nothing in this Agreement operates to assign ownership of the Intellectual Property Rights in the Exhibitor Ticketing Data to the Partner. The Partner acknowledges and agrees that the Exhibitor Ticketing Data may be displayed on the Platform in such manner as may be determined by Powster in its reasonable discretion.
Representations and Warranties
1. Each party represents and warrants to the other that it has the full right, power and authority to enter into and perform this Agreement.
2. Powster represents and warrants that:
  (a) it shall perform the Services with reasonable care and skill; and
  
  (b) the Platform (excluding any Partner Materials or Partner IP incorporated therein, or the Partner’s use of the Platform other than in accordance with the Agreement) does not violate or infringe any intellectual property right of any third party.
3. The Partner represents and warrants that:
  (a) it has in force all necessary licences, permits and consents to enable it to carry on business and lawfully perform its obligations to Powster under this Agreement;
  
  (b) it owns or controls all rights, title and interest in and to the Partner Materials and Partner IP incorporated in the Platform and it has secured any and all third party rights, permissions and consents required to enable Powster to incorporate the Partner Materials and Partner IP in the Platform;
  
  (c) the Partner Materials and Partner IP do not violate or infringe any intellectual property right, right of privacy, publicity or any other right of any third party, breach any contract or duty of confidence, contain any Inappropriate Content or constitute a contempt of court;
  
  (d) all Partner Materials and Partner IP provided in electronic format shall be free of any computer virus or similar other harmful, malicious or hidden program or data; and
  
  (e) its use of the Platform shall be in accordance with the terms of this Agreement and will not slander, defame, libel or invade the right of privacy, publicity or other personal rights of any person.
4. The Partner acknowledges that, in providing the Services:
  (a) Powster may rely on the provision of data and services by third parties, including AI technology providers, data centres, hosting services, electricity and telecommunications providers (“Third Party Providers”) to provide the Services.
  
  (b) that the Services provided by Third Party Providers are subject to the terms and conditions of that Third Party Provider and may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers;
  
  (c) Powster will not be responsible for any delays, delivery failures, or any other loss or damage (including any indirect, consequential or special loss or damage) arising out of or in connection with any services provided by any Third Party Providers, including any delays, delivery failures, or any liabilities resulting from the transfer of data over communications networks and facilities, including the internet; and
  
  (d) Powster disclaims any and all liability in connection with any third party breach of the Partner IP or the IP rights of a third party, and the Partner waives any legal or equitable remedies or equitable rights or remedies the Partner may have against Powster, its Affiliates, and their respective representatives with respect of any third party breach of the Partner IP or the IP rights of a third party.
Limitation of Remedies and Liability
1. Nothing in this Agreement shall operate or is intended to exclude or limit Powster’s liability for fraud, death or personal injury caused by its negligence, wilful misconduct or for any other liability that cannot be limited or excluded under applicable law.
2. Powster shall not be liable to you for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity or for any indirect or consequential loss or damage.
3. Subject to Clause 8.1, Powster’s aggregate liability in respect of claims arising out of or in connection with this Agreement, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Fee actually paid by Partner to Powster in the twelve month period immediately preceding the date Partner first asserted such claim against Powster.
Term and Termination
1. This Agreement commences on the Commencement Date and continues until terminated in accordance with this Clause 9 (“Agreement Term”).
2. Either party may terminate this Agreement without cause by providing the other party with no less than thirty (30) days’ advance written notice, provided that termination under this clause will not result in the termination of any then-in-effect Statement of Work. For the purposes of such then-in-effect Statement of Work, these General Terms and Conditions continue in effect until the termination of that Statement of Work.
3. Either party may terminate this Agreement and any Statement of Work with immediate effect by giving written notice to the other party if:
  (a) the other party commits a material breach of any term of this Agreement and such breach is either irremediable or, if remediable, has not been remedied within twenty (20) Business Days after being notified in writing to do so;
  
  (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
  
  (c) an application is made to court, or an order is made in respect of the other party, for the appointment of a receiver, administrative receiver or administrator, or if a notice of intention to appoint an administrator is given (or any similar official or process under the law of its domicile or place of incorporation) of the whole or any part of its assets; or
  
  (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party.
4. On termination of this Agreement or a Statement of Work by Powster under Clause 9.2 or Clause 9.3, all licences granted under this Agreement or a Statement of Work shall terminate immediately.
5. Clauses 5, 6, 7, 8, 10.2, 11.1, 12, 14, 15 and 19 through 25 (inclusive) of this Agreement shall survive the termination of this Agreement and shall continue in full force and effect.
Platform Content and Integrations
1. The Partner acknowledges that Powster has no control over any content placed on the Platform by Users or visitors and does not purport to monitor the content of the Platform. Powster reserves the right to remove any content from the Platform where it reasonably suspects such content is Inappropriate Content.
2. If, as a part of the Services, Powster provides to Partner any integrations to third party providers (for example, Curator.io, Formspree / Mailchimp) (“Third Party Integration”), Powster will be responsible only for the integration to the third parties and Partner acknowledges and agrees that Partner, and not Powster, will be responsible for creating and maintaining an account with such third party, including agreeing to such third party’s terms of use relating to the use of the account and being responsible for any fees payable to the third party.
3. Powster may include a short statement or logo on each page of the Platform stating its involvement in the development of the Platform.
Indemnification
1. You shall indemnify, defend and hold harmless Powster (and its successors and assigns), from and against any and all damages, losses, claims, demands, judgments, losses and expenses arising from any action or claim that any Partner Materials or Partner IP infringe the Intellectual Property Rights of any third party.
Confidentiality
1. Each party undertakes that it shall not at any time disclose to any person, without the prior written consent of the other party, any Confidential Information of the other party, except as permitted by Clause 12.3.
2. Each party shall protect the Confidential Information of the other party against unauthorised disclosure to at least the same manner as it protects its own Confidential Information of a similar nature, being at least a reasonable degree of care.
3. Each party may disclose the other party's Confidential Information:
  (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
  
  (b) as may be required by law, a court of competent jurisdiction, any governmental or regulatory authority or as required by the rules of a recognised stock exchange.
Force Majeure
1. Neither party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement, other than any obligation to make a payment where due, if such delay or failure results from a Force Majeure Event. Where a Force Majeure Event occurs, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate this Agreement by giving five (5) Business Days’ written notice to the affected party.
Partner Data and Data Protection
1. The Partner will arrange all consents and approvals necessary under applicable laws for Powster to access, process and use the Partner Data as described in the Agreement, including in relation to any Personal Data contained within the Partner Data.
2. The Partner warrants that:
  (a) it owns or has obtained all necessary consent of any Data Subjects necessary for the parties to perform their respective obligations under the Agreement;
  
  (b) Powster’s processing of the Partner Data in accordance with the Agreement will not constitute the violation of any applicable laws, rules or regulations (including Data Protection Laws) or a violation of any applicable privacy policy or terms and conditions;
  
  (c) it has disclosed to the Data Subjects in compliance with applicable Data Protection Laws how it will collect, use, and disclose their Personal Data; and
  
  (d) unless otherwise stated in the Agreement, it will not upload or collect any Sensitive Personal Data, nor instruct Powster to upload, collect, include or Process any Sensitive Personal Data, in the Platform.
3. The Partner indemnifies, defends and holds harmless Powster from and against all losses, damages, costs, liabilities and expenses (including reasonable legal expenses) arising out of or in connection with the Partner’s breach of any of the warranties in Clause 14.2.
4. Each party will take appropriate technical and organisational security measures including in accordance with Data Protection Laws against unauthorised or unlawful Processing of Partner Materials, Partner IP or Partner Data, or their accidental loss, destruction or damage and Powster will, as part of these measures, use reasonable endeavours to back-up Partner Materials, Partner IP or Partner Data. The Partner acknowledges that if there is any loss or damage to Partner Materials, Partner IP or Partner Data as a result of Powster’s negligence or breach of this clause, the Partner’s sole and exclusive remedy will be for Powster to use reasonable commercial endeavours to restore such lost or damaged data from the latest back-up of the Partner Materials, Partner IP or Partner Data that Powster has maintained. Subject to Powster’s use of Sub-Processors in accordance with Schedule 1 of these General Terms and Conditions (where applicable to the Partner) and applicable Data Protection Laws where related solely to Personal Data, and Powster’s compliance with its obligations under this clause 14.4, Powster will not be responsible for any loss, destruction, alteration or disclosure of Partner Materials, Partner IP or Partner Data caused by Powster, Partner or any third party.
5. Where Powster Processes Personal Data of Data Subjects for which the GDPR does not apply to under the Agreement, Powster will:
  (a) process any Personal Data solely on the Partner’s documented instructions (whether in the Agreement or otherwise) for the purposes of providing the Services or as otherwise required by Data Protection Laws or the Agreement;
  
  (b) take reasonable steps to ensure that any staff who may have access to any Personal Data treat such Personal Data as confidential and otherwise in accordance with the Agreement;
  
  (c) promptly notify the Partner of any communication from an individual regarding any Processing of their Personal Data and provide reasonable assistance in responding to such communication;
  
  (d) notify the Partner without undue delay of any Personal Data Breach;
  
  (e) within ninety (90) days of termination of the Agreement, (at the Partner’s option) return to or delete any Personal Data Processed under the Agreement;
  
  (f) on reasonable notice, provide the Partner with information reasonably requested by the Partner to demonstrate Powster’s compliance with its obligations under this clause 14.5; and
  
  (g) to the extent Powster receives “personal information” from the Partner (as defined under the California Consumer Privacy Act of 2018, as amended (“CCPA”)) of “consumers” (as defined under the CCPA) under the Agreement, Powster will not: (a) “sell” (as defined under the CCPA) such personal information; (b) retain, use, or disclose such personal information for any purpose other than performing the Services (or as otherwise permitted by the CCPA), including without limitation retaining, using, or disclosing such personal information for any “commercial purpose” (as defined under the CCPA) other than providing the Services; or (c) retain, use, or disclose such personal information outside of the direct business relationship between the parties. Powster certifies that it and each of its representatives who will process such personal information understand, and will comply with, the restrictions set forth in this clause 14.5(g).
6. Where Powster Processes Personal Data of Data Subjects the GDPR applies to under the Agreement, Powster will Process such Personal Data in accordance with the Schedule 1 to these General Terms and Conditions.
7. Unless stated otherwise in the Agreement, Powster reserves the right to charge additional reasonable fees for any assistance provided by Powster to the Partner to assist the Partner to comply with its obligations under Data Protection Laws which Powster reasonably considers go beyond a reasonable level of support and/or assistance, provided that such fees will be pre-agreed by the Parties in writing.
8. The parties acknowledge and agree that the Partner is the data controller in respect of any Personal Data that Powster may Process in the course of providing the Services (excluding Exhibitor Ticketing Data and any business contact data processed by Powster to allow it to manage the Partner’s account). Schedule 1 sets out the subject matter, duration and the nature and purpose of the processing, the types of personal data and categories of data subject as required by Article 28(3) of the GDPR or equivalent provisions of any data protection laws.
Publicity
1. Powster shall have the right to issue a press release or public announcement (including by way of social media) relating to the subject matter of this Agreement.
2. You grant Powster a non-exclusive, worldwide, fully paid-up, perpetual licence to use the Partner’s business logo and name for the purpose of including it on an indicative list of Powster’s partners and for any internal or corporate communication of Powster.
Designated Contact and Notices
1. Each party shall appoint a designated contact who shall provide professional and prompt liaison with the other party and have the necessary expertise and authority to commit to the relevant party. Any change in the identity of each party’s designated contact shall be notified to the other party in writing.
2. The details of each party’s designated contact pursuant to Clause 16.1 are as provided in the relevant Statement of Work.
3. Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand, post or email to the relevant designated contact. Any communication by email will be deemed to be received when transmitted to the correct email address of the recipient with confirmation of transmission by the transmitting equipment. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the fifth Business Day following the date of posting.
Assignment
1. You may not assign or transfer any of your rights or obligations under this Agreement without the prior written consent of Powster, such consent will not be unreasonably withheld or delayed. Notwithstanding the forgoing, Powster may assign its rights under this Agreement without the prior written consent of the other party where any such assignment arises out of a corporate reconstruction of the assigning party, the sale of the assigning party’s business to a related party or the sale of the assigning party’s business to a third party who is not a competitor of the other party.
Entire Agreement
1. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
Waiver
1. No failure or delay by Powster to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Amendments
1. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
Third Party Rights
1. No person who is not a party to this Agreement shall have any right to enforce any of its terms and if this Agreement is governed by the laws of England and Wales, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Agency
1. Nothing contained in this Agreement shall be deemed to constitute or create a partnership or joint venture between the parties and neither party shall hold itself out as the agent of the other.
Severability
1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
2. If the illegality or unenforceability of any part of this Agreement materially alters the economic or commercial balance of this Agreement as between the parties, the parties hereby agree to negotiate in good faith to amend this Agreement in such a way to reinstate the economic and/or commercial balance of this Agreement to the same as before such part of the Agreement as was held to be unenforceable to illegal was deemed excised.
Counterparts
1. This Agreement may be executed in any number of counterparts and each counterpart, when taken with each other counterpart, shall constitute the whole Agreement.
Governing Law and Jurisdiction
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Governing Law.
2. Each party irrevocably agrees that the courts of the Governing Law shall have exclusive jurisdiction to settle any dispute or claims arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE 1 – GDPR DATA PROCESSING ADDENDUM

Definitions
1. This Schedule applies to Partners that the GDPR applies to. For the purposes of this Schedule, the following capitalised words have the following meanings:
  “Affiliate” means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise, and any Person owning, directly or indirectly, 50% or more of the voting securities of, or economic interests in, a second Person will be deemed to control that second Person.
  
  “Data Protection Laws” means applicable legislation protecting the personal data of natural persons, together with binding guidance and codes of practice issued from time to time by relevant Supervisory Authorities and/or any local data protection law applicable in respect of Personal Data collected by the Partner and Processed by Powster under the Agreement, including where applicable GDPR and Directive 2002/58/EC and any local implementing laws as updated from time to time, including any data protection laws substantially amending, replacing or superseding the same;
  
  “EU personal data” means personal data to which Data Protection Laws of the European Union, or of a Member State of the European Union or European Economic Area, was applicable prior to its processing by Powster.
  
  “GDPR” means, in each case to the extent applicable to the processing activities: (i) Regulation (EU) 2016/679 (“EU GDPR”); and (ii) UK GDPR.
  
  “Person” means any individual, corporation, partnership, limited partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization or a government or any agency or political subdivision thereof or any other entity.
  
  “Protected Area” means:
  
  (a) in the case of EU personal data, the members states of the European Union and the European Economic Area and any country, territory, sector or international organisation in respect of which an adequacy decision under Art.45 EU GDPR is in force; and
  
  (b) in the case of UK personal data, the United Kingdom and any country, territory, sector or international organisation in respect of which an adequacy decision under United Kingdom adequacy regulations is in force.
  
  “Standard Contractual Clauses” or “SCCs” mean:
  
  (a) in respect of EU personal data, the standard contractual clauses for the transfer of personal data to third countries pursuant to the EU GDPR, adopted by the European Commission under Commission Implementing Decision (EU) 2021/914; and/or
  
  (b) in respect of UK personal data, the International Data Transfer Addendum to the EU Standard Contractual Clauses, issued by the Information Commissioner in accordance with s.119A of the Data Protection Act 2018.
  
  “UK GDPR” means the EU GDPR as applicable as part of UK domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (as amended).
  
  “UK personal data” means personal data to which Data Protection Laws of the United Kingdom were applicable prior to its processing by Powster.
  
  “controller”, “processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” shall be interpreted in accordance with the GDPR.
GDPR Data Processing Terms
1. Where Powster Processes Partner Personal Data under the Agreement, Powster will:
  (a) Process the Personal Data solely on the Partner’s documented instructions (whether in the Agreement or otherwise) for the purposes of providing the Service or as otherwise required by applicable law or the Agreement. If Powster is required by applicable law to process the Personal Data for any other purpose, Powster will inform Partner of this requirement first, unless such law(s) prohibit this on important grounds of public interest;
  
  (b) notify the Partner immediately if, in Powster's opinion, an instruction for the processing of Personal Data given by the Partner infringes applicable Data Protection Laws, it being acknowledged that Powster shall not be obliged to undertake additional work to determine if Partner's instructions are compliant;
  
  (c) take reasonable steps to ensure the reliability of any staff who may have access to such Personal Data, and their treatment of the Personal Data as confidential;
  
  (d) promptly refer to the Partner any requests, notices or other communication from Data Subjects or any Supervisory Authority, for the Partner to resolve and, subject to Clause 14.7 of the General Terms and Conditions, provide reasonable assistance to the Partner to assist the Partner to respond to such communication;
  
  (e) provide such information to the Partner as the Partner may reasonably require, and within the timescales reasonably specified by the Partner, to allow the Partner to comply with the rights of Data Subjects, including subject-access rights, or with notices served by the Supervisory Authority;
  
  (f) within ninety (90) days of termination of the Agreement, (at the Partner’s option) return to the Partner or delete all Personal Data Processed under the Agreement unless Powster is required to continue processing the data according to applicable law;
  
  (g) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk associated with Powster’s Processing of the Personal Data, including the minimum security measures set out in Annex 2 to this Schedule;
  
  (h) promptly notify the Partner upon becoming aware of any Personal Data Breach;
  
  (i) on request and subject to Clause 14.7 of the General Terms and Conditions, provide the Partner with reasonable assistance in carrying out its obligations under Articles 32 to 36 of the GDPR, where applicable;
  
  (j) Process only the types of Personal Data, relating to the categories of Data Subjects, and in the manner required to deliver the Service, as further described in Annex 1 to this Schedule;
  
  (k) only transfer Personal Data outside of the Protected Area in accordance with Clauses 2.2 and 2.3 or with the prior written consent of the Partner. The Parties acknowledge that Powster may Process Personal Data from New Zealand and the United Kingdom, and that New Zealand and the United Kingdom are countries which are within the Protected Area; and
  
  (l) on reasonable prior notice, provide the Partner with information to demonstrate compliance with Powster's obligations under the Agreement and, at the Partner's expense, and subject to at least ten (10) days’ prior written notice, submit to audits conducted by the Partner under the GDPR (where applicable) provided always that:
  
  (i) any such audit is carried out within Powster’s normal business hours;
  
  (ii) no more than one such audit will be conducted per calendar year;
  
  (iii) Powster will not be required to provide or permit access to:
  
  (A) information relating to other Partners of Powster;
  
  (B) information relating to internal Powster pricing;
  
  (C) internal reports prepared by Powster internal audit function and non-public external reports; and
  
  (iv) any third party auditor engaged by the Partner to carry out such audit enters into such confidentiality obligations with Powster (or its Sub-Processor as the case may be) as may be necessary to respect the confidentiality of Powster (or its Sub-Processor's) business interests and any third party data or information that the auditor becomes aware of during an audit.
2. Powster shall not, and shall ensure that none of its Affiliates or Sub-Processors, transfer, access or use EU, or UK personal data outside of the Protected Area without Partner’s prior authorisation. Partner agrees to authorise the transfers to Sub-Processors listed at Annex 1 of this Schedule and Powster confirms that it has in place a mechanism for lawful transfer and where necessary agrees to procure that its Affiliates or Sub-Processor’s (as applicable) comply with the obligations set out in the Standard Contractual Clauses, with Powster as the ‘data exporter’ and the relevant Powster Affiliate or Sub-Processor (as applicable) as the ‘data importer’. Where Partner provides personal data described in Annex 1 to one of the Powster Affiliate Sub-Processors authorised under this Schedule for the purposes of enabling Powster to fulfil its obligations under the Agreement, then Partner and Powster agree that such transfer shall be deemed to be a transfer from Partner via Powster to such Powster Affiliate and that Powster shall be the ‘data exporter’ and the Powster Affiliate shall be the ‘data importer’ in relation to such transfers.
3. For the purpose of Clause 2.1(k) above, in the event that a relevant European Commission decision or other valid adequacy method under applicable Data Protection Laws on which the parties have relied as the basis for any data transfer is held to be invalid, or that any supervisory authority requires transfers of personal data made pursuant to such decision to be suspended, then the parties agree to discuss in good faith and facilitate use of an alternative transfer mechanism.
4. The Partner authorises Powster to appoint third party Sub-Processors to assist in the management and provision of the Service provided Powster has entered into an agreement with the Sub-Processor which imposes obligations on the Sub-Processor no less onerous than as are imposed on Powster under this Schedule. Powster’s use of Sub-Processors will not relieve it of any liability, and Powster will remain liable to the Partner for the performance of the Sub-Processors obligations. The list of current Sub-Processors used by Powster is set out in Annex 1 and Powster will notify the Partner of any additional Sub-Processor 10 days in advance. If the Partner reasonably objects to a new Sub-Processor, the Partner may inform Powster in writing of the reasons for the Partner’s objections. If the Partner objects to such additional Sub-Processors(s) within such notice period, the Partner should stop using the Service and providing data to Powster and Powster may terminate the Agreement by providing written notice to the Partner with immediate effect and the Parties obligations on termination will apply in accordance with clause 9.5 of the Standard Terms. The Partner hereby specifically consents to Powster's appointment of its Affiliates as Sub-Processors for the purposes of assisting Powster to provide the Service under the Agreement.

ANNEX 1: PERSONAL INFORMATION AND SUB-PROCESSORS

This Annex 1 includes certain details of any personal data that Powster may process in the course of providing the Services as required by Article 28(3) of the GDPR or equivalent provisions of any Data Protection Legislation.

Subject matter and duration of the processing of the personal data

The subject matter and duration of the processing of the personal data are set out in the Agreement.

The nature and purpose of the processing of the personal data

The below types of personal data are processed for the following purposes:

Analytics for Partner’s sites
Internal success reports of products and campaigns
For security issues and performance

The types of the personal data to be processed

Personal data collected by Powster and shared with Partner:

Aggregated Referrer information
Aggregated Campaign tag information
Aggregated User Agent Information
Aggregated Device information
Aggregated User’s click events
Google Analytics tracking
Client tracking (pixels and tracking provided by client)

Personal data processed but not stored by Powster:

IP Address
Country code (based on IP address)
City (based on IP address)

Personal data collected by Powster but not shared:

User client ID: random number generated on the front-end and stored as a cookie for 30 minutes in the user’s browser and in Powster’s back-end to track sessions. Unique to each user and anonymous.
Back-up User client ID: (only if previous User client ID is not available) generated by Powster using an algorithm based on the IP address and user agent, (which are not stored or exposed anywhere). Unique to each user and anonymous.

The categories of data subject to whom the personal data relates

Users.

The obligations and rights of the data controller and data controller affiliates

The obligations and rights of the data controller are set out in the Agreement.

Sub-Processors

Amazon Web Services;
Google Cloud Platform; and
MaxMind, Inc..

ANNEX 2: SECURITY MEASURES

This Annex 2 sets out the security measures which Powster shall take to ensure a level of security for the
Personal Data appropriate to the level of the risk.

The Partner is responsible for ensuring that it has appropriate technical and organisational measures in place to ensure the security of any Personal Data located on its own systems in accordance with its obligations as a Data Controller under the GDPR.

Confidentiality & Security
1. Powster will implement the following common measures and processes set out below. Powster will:
  1. ensure that only authorised devices and authorised relevant employees with a work-related need for data processing have access to Personal Data. For example, only Powster services team members will connect to Partner’s servers;
  2. ensure that any employee who changes roles within Powster does not retain access to Personal Data unless such Personal Data is required for their new role. When an employee leaves Powster, Powster will ensure that they do not have access to, or take with them, any Personal Data. Powster will ensure that no previous employees or external consultants have access rights to the Powster systems holding Personal Data;
  3. use secure/encrypted transfer of Personal Data on the open internet;
  4. pseudonymise and encrypt Personal Data;
  5. ensure appropriate physical security of Personal Data, including:
    (A) fitting appropriate locks or other physical controls to the doors and windows of rooms where computers are kept;
    
    (B) destroying or removing all Personal Data from media such as storage devices, USBs, external hard drives and CDs before disposing of them; and
    
    (C) ensuring all Personal Data is removed from the hard drives of any used computers before disposing of them.
  6. implement best practice access controls, including:
    (A) best practise password procedures must be in place, including using strong passwords; and
    
    (B) industry standard hard drive encryption for internal or external hard drives; and
2. ensure suitable firewall and infrastructure logging to ensure the ongoing logging of failed login attempts or attacks on Powster systems, including log of time, user, etc. and block access after a certain number of failed login attempts for each user.
Integrity and availability
1. Powster will protect Powster networks, systems and logs against tampering.
2. The Partner is responsible for ensuring that they can restore the availability and access to Personal Data in their own systems in a timely manner in the event of a physical or technical incident, including by backing-up data.
Resilience
1. Powster will have a vulnerability management program, including regular monitoring of potential vulnerabilities and performance of penetration tests of networks and Powster systems.
2. The vulnerability management program will include, but is not limited to:
  (A) performing vulnerability scans on internal and external perimeters at least quarterly;
  
  (B) performing penetration tests on external network perimeters at least annually or more frequently where incidents disclose the need for such tests; and
  
  (C) following up on and remedying any weaknesses identified in connection with such scans and tests.
3. Powster will keep Powster networks and systems up-to-date with regard to new versions, updates, and patches on an ongoing basis.
Awareness, training and security checks in relation to personnel
1. Powster will provide training to new employees regarding information security and ensure that they read and understand Powster’s Information Security Policy. Powster will ensure that employees know where to find details of information security standards and procedures relevant to their role and responsibilities.
Incident response management and business continuity
1. Powster will ensure that employees understand what a Personal Data Breach and a Security Incident mean, and train employees to recognise the signs thereof and to respond appropriately.
2. Powster will have a Security Incident Response Plan in place in the event of a serious security incident. The Security Incident Response Plan will be regularly reviewed and will be reviewed after every Personal Data Breach and Security Incident in which the Plan is used and updated according to the lessons learned.
Monitoring
1. Powster will monitor and keep up-to-date all security measures, processes, and risk analyses.
2. Powster will implement a process for periodical testing, assessing, and evaluating the effectiveness of the technical and organisational measures for ensuring the security of the processing, including, but not limited to, the measures set out in Annex 2.
3. Powster will implement procedures for effectively following-up on non-compliance.

ARCHIVE

October 2023

General Terms and Conditions

SCHEDULE 1 – GDPR DATA PROCESSING ADDENDUM

ANNEX 1: PERSONAL INFORMATION AND SUB-PROCESSORS

ANNEX 2: SECURITY MEASURES

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