1. INTRODUCTION
This agreement (“Agreement”) on Pay Benchmark Survey (“Survey”) is made and entered into as of the Effective Date (as defined in Section 8) by and between the client company that participates in the Survey (“Company”) and Allshares Oy (1882491-3), a company incorporated and existing under the laws of Finland, with its postal address at c/o Evli Oyj PL 1081 00101 Helsinki, Finland (“Provider”) (individually referred to as a “Party” and jointly “Parties”).
2. THE SURVEY AND SUBMISSION OF DATA
The Pay Benchmark Survey is an annual club survey that the Provider conducts to increase knowledge of remuneration practices among companies of all sizes and industries, identifying the latest trends in compensation and providing market benchmarks for all aspects of remuneration. Subject to the Company’s submission of data and payment of the relevant fees in accordance with Section 3, the Provider agrees to provide the Company with services related to compensation benchmarking and analytics. The Company will select a service package from the options offered by the Provider, including, for example:
- A summary of the results of the Pay Benchmark Survey (“Summary”)
- A limited access to Allshares’ Pay Data Platform, subject to the terms and conditions outlined inAnnex 1 (Terms of Service for Allshares’ Pay Data Platform)
- Bespoke compensation benchmarking reports tailored to the Company’s specific needs (“Tailored Report”)
The details of the selected package, including features and pricing, will be communicated to the Company via email. The Company will confirm their selection by responding to the email, which will serve as a binding confirmation of the selected package and the terms of this Agreement.
2.1 SUMMARY
The Summary will be given free of charge to the companies that have submitted their data as a reward for participating. The Summary presents the compensation data in an aggregated and statistical form without revealing any individual data observations or the names of the companies participating in the Survey.
2.2 TAILORED REPORT
Tailored Report presents aggregated data for differentexecutive team positions for a group of peer companies that are comparable tothe client in question in terms of compensation. Median values and the twomiddle quartiles for each position are presented. The Tailored Report presentsthe group of companies that the Company is benchmarked against but does notreveal any single data points or information that could be tracked to oneperson or a small group of people. The groups typically consist of 7 to 20 companies.In order to protect the confidentiality of the compensation data, theaggregated data visualisations for executive team positions are not presentedif the sample is so small that there is a risk that any individual could beidentified. In practice, the two middle quartiles and the median value areshown when the sample is greater than or equal to seven and only the medianvalue is shown when the sample is greater than or equal to five. In order tomaintain anonymity of the report, an analysis is not shown if the sample issmaller than five. Data for base salaries and benefits, short-term incentives,long-term incentives and pension payments are shown separately and together.
2.3 DATA SUBMISSION
The Company shall supply the Provider with its compensation data to be used in the Survey. The Company agrees to submit accurate and complete data. The categories of personal data are salary, benefits, short-term and long-term incentives (both paid and future earning opportunities), pension, job title, starting year of employment, geographical location of the position, job grades, severance payments and notice period.
If the Company is a client of the Provider in incentive plan management services, the Company may authorise the Provider to collect some of the data from the Provider’s Incentive.Online platform on its behalf. For the Provider to be able to collect the data from the platform, the Company must submit a name, employee ID or other identifying code of the data subject. By submitting such identifying information, the Company is deemed to have given the authorisation to retrieve the compensation data from the Incentive.Online platform on the Company’s behalf and use it in accordance with this Agreement.
By submitting data to the Survey (or by authorising the Provider to collect the data from Incentive.Online platform), the Company understands and acknowledges that the Provider and Allshares AB, which is the Provider’s affiliate, shall become joint controllers of the submitted personal data, in accordance with Section 14 of the Annex 1. The Company shall be solely responsible for having the right to disclose the personal data to the Provider to be used in the Survey. The Provider and Allshares AB shall use the personal data as joint controllers in accordance with the privacy notice of the Pay Data Platform, which outlines the procedures and the legal basis for the collection, processing and storage of the personal data. The Provider and Allshares AB shall ensure that any processing complies with the General Data Protection Regulation (EU) 2016/679 and other applicable data protection laws.
3. FEES AND PAYMENT
The Company agrees to pay the fees associated with the services and deliverables under this Agreement as outlined in the price list of the Provider. In multi-year contracts, the services are invoiced annually.
Value added tax is added to all charges. The term of payment is fourteen (14) days net from the date of the invoice. Interest for late payment is determined in accordance with the FinnishInterest Act (20.8.1982/633). If the payment is delayed by more than thirty (30) days from the due date, the Provider is entitled to withhold further performance of the services until all such late payments due have been paid in full.
4. CONFIDENTIALITY
Each Party agrees to maintain the confidentiality of all non-public, proprietary, or confidential information disclosed by the other Party in connection with this Agreement (“Confidential Information”). The Company explicitly agrees to keep the Summary and the Tailored Reports confidential and use them solely for its internal operations. Neither Party shall disclose or use any Confidential Information for any purpose other than as necessary for the purpose of this Agreement, without the prior written consent of the disclosing Party. The obligations under this Section 4 shall survive termination or expiration of this Agreement for a period of five (5) years.
5. INTELLECTUAL PROPERTY
All Intellectual Property Rights related to the Survey and any associated materials such as the Summary and the Tailored Reports shall vest and remain vested exclusively with the Provider. “Intellectual Property Rights” means any and all patents, utility models, design rights, copyright, domain names, trademarks, trade names, service marks and any other intellectual property rights in any jurisdiction worldwide, irrespective of whether such rights can be subject to registration or not, and applications for registration of any of the aforementioned respectively as well as any trade secrets.
The Company is granted a limited, non-transferable, non-sublicensable, non-exclusive license to use the Summary and the Tailored Reports solely for its internal operations. The Company shall not modify, copy, reproduce, distribute or otherwise use the Summary or the Tailored Reports beyond the scope of this license without prior written consent from the Provider. The Company may make necessary copies of the Summary and the Tailored Reports for its internal operations. The copies must contain the same copyright, trademark, and other labels as the original copy of the Summary or the Tailored Report.
6. LIMITATIONS OF LIABILITY
Neither Party shall be liable for any indirect, incidental, consequential, special, or punitive damages, including but not limited to loss of profits, revenue or reputation, under or in relation to the Agreement or its subject matter.
The total aggregate liability of a Party towards the other Party under or in relation to the Agreement or its subject matter shall not exceed an amount corresponding to the total price (excluding value added tax) invoiced by the Provider from the Company under this Agreement.
The limitations of liability do not apply to damage caused intentionally or through gross negligence, nor to damages related to the violation of the provisions regarding confidentiality or intellectual property.
7. MISCELLANEOUS
This Agreement, including its annex(es) and the Provider’s slide deck outlining the content of the service and the price list, constitutes the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior agreements, negotiations, representations, and understandings, whether written or oral, related to such subject matter.
Any modifications to this Agreement must be made in writing and agreed upon by both Parties.
Neither Party has the right to assign the Agreement, or any of its rights or obligations hereunder, to a third-party, except that the Provider may transfer its receivables under the Agreement to a third-party. Each Party has the right to subcontract its obligations under the Agreement, in which case the Party shall ensure that its subcontractors comply with the confidentiality provisions of this Agreement. A Party will be liable for the performance of its subcontractor as for its own performance.
The Provider may use the customer relationship with the Company as a reference in its marketing and business operations on the Provider’s website and other marketing material as well as in office presentations. This permission for reference includes the right to use the Company’s name, logo and trademark in this context, as well as to mention the relevant product. All further references must be agreed upon separately in writing and in advance. The Company has the right to revoke this permission at any time by notifying the Provider thereof in writing.
8. TERM AND TERMINATION
This Agreement shall enter into force on the date the Company approves the Agreement by submitting a written acceptance of this Agreement by email or submits the compensation data to be used in the Survey (“Effective Date”) and remain in force for the duration of the selected package or until the obligations of each Party under the Agreement are fulfilled.
Each Party has the right to terminate this Agreement with immediate effect upon written notice to the other Party if (i) the other Party is in material breach of the Agreement and, where such breach is capable of being remedied, fails to remedy the breach within fourteen (14) days after written notice regarding such breach or (ii) the other Party is insolvent, declared bankrupt, put into liquidation or ends its business.
9. GOVERNING LAW AND DISPUTE SETTLEMENT
This Agreement shall be governed by and interpreted in accordance with the laws of Finland, without regard to its conflict of laws rules. Any dispute, controversy or claim arising out of correlating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.
10. ANNEXES
The following annex(es) form an integral part of this Agreement. If there are discrepancies between this Agreement and the annex(es), the latter shall prevail.Annex 1, Terms of Service for Allshares’ Pay Data Platform
ANNEX 1, TERMS OF SERVICE FOR ALLSHARES’ PAY DATA PLATFORM
1. INTRODUCTION
The Provider is providing an electronic remuneration benchmarking software application (“Pay Data Platform”) to the Company and authorized personnel of the Company (“User”). The Pay Data Platform is a web-based software application service delivered and accessed over data network. The Pay Data Platform is hosted and managed by Allshares Oy. “Service” means the Pay Data Platform, including all associated features, functionalities, user interfaces, data processing capabilities, updates, enhancements, and related support services provided by the Provider in accordance with the Agreement. These terms and conditions of the Pay Data Platform (“Terms of Service”) apply to the delivery and use of the Pay Data Platform provided by the Provider to the Company and the Users. The capitalized terms used herein shall have the meaning assigned to them in the Agreement.
2. RESPONSIBILITIES OF THE PARTIES
The Provider undertakes to perform the tasks for which it is responsible in conformity with the Agreement and these Terms of Service, with due care and with the professional skills reasonable expected from an experienced service provider. The Service will be performed using the Provider’s working methods.
The Provider shall deliver to the Company an access and the instructions for using the Pay Data Platform.
The Company understands that the Provider’s performance under the Terms of Service is dependent upon the Company fulfilling its obligations pursuant to the Agreement and these Terms of Service. Such obligations include but are not limited to providing the Provider with all necessary information and cooperating with the Provider. Consequently, during the term of the Agreement, the Company undertakes to: i. provide the Provider with the information necessary, and reasonably expected to be necessary, for the Provider to perform its obligations in accordance with the Agreement and these Terms of Service; ii. ensure that the Company and Users has the network connection, equipment, software and licenses required to use and receive the Pay Data Platform.
The Company is responsible for all use of the Pay Data Platform by its Users and personnel and shall comply with all applicable laws and regulations in connection with the Company’s use of the Pay Data Platform, including those related to data privacy and the transmission of personal data. In particular, the Company shall be responsible for ensuring that it and the Users in its organization use the Pay Data Platform in accordance with Section 5 of these Terms of Service. Subject to limitations of liability in the Agreement, the Company shall be fully liable for the acts and omissions of its Users under the Agreement or any applicable laws or regulations. The Company shall be responsible for ensuring that the Pay Data Platform fulfils the Company’s intended purpose. The Provider specifically excludes any liabilities and warranty for fitness of the Service for any particular purpose.
The Company shall notify the Provider immediately of any unauthorized use of the Pay Data Platform or any other known or suspected breach of security.
3. DELIVERY AND DEPLOYMENT
The Provider shall start the delivery of the Service on the agreed date of deployment orwithin the agreed time. If the period or date of deployment of Service has not been agreed upon in writing, the Service shall commence within a reasonable time from the Effective Date. The Service shall be deemed to have commenced when the Provider notifies the Company that the Pay Data Platform is available for the Company and the Users.
4. GRANT OF ACCESS TO THE PAY DATA PLATFORM
Subject to compliance with the terms of the Agreement by the Company, and in particular subject to the Company’s timely payment of the fees in accordance with the Agreement, the Provider grants to the Company a personal, limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Pay Data Platform in accordance with the terms and conditions of the Agreement and these Terms of Service and any applicable laws, rules and regulations solely for the Company’s internal use. The right is valid only during the term of this Agreement. The Company acknowledges that, except as otherwise specified, the Pay Data Platform is the Provider’s property, and the Company will acquire or attempt to acquire no ownership or proprietary rights in it.
The Company may not transfer, lease, loan, resell, distribute or otherwise make the Pay Data Platform or materials contained in the Pay Data Platform available in whole or in part in any form whatsoever to any third parties.
The Company shall not attempt to gain access to any parts of the Pay Data Platform to which the Company has not acquired access rights, nor shall the Company attempt to modify, copy, decompile, adapt, reverse engineer or otherwise attempt to derive source code of the Pay Data Platform or any computer software programs the Pay Data Platform is based upon. The Company shall not store or install the Pay Data Platform on any Company’s device.
5. OBLIGATIONS FOR THE USERS OF THE SERVICE AND PROHIBITED USAGE
The Company shallensure that the Users of the Pay Data Platform shall: i. comply with these Terms ofService when using the Pay Data Platform; ii. not be minors in theirjurisdiction of residence; iii. not access the Pay Data Platformthrough automated or non-human means, whether through a bot, script, orotherwise; iv. not use the Pay Data Platform forany illegal or unauthorized purpose; and v. not use the Pay Data Platform inviolation with any applicable law or regulation.
A User may not access or use the Pay Data Platform for any purpose other than that for which it is intended. The Pay Data Platform may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by the Provider.
The Company shall not and shall ensure that the Users of the Pay Data Platform shall not: i. systematically retrieve data or other content from the Pay Data Platform to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from the Provider. For clarity, this restriction does not limit the Company’s use of any standard functionalities provided within the Pay Data Platform that allow for the downloading, exporting, or generation of reports, data sets or other outputs, as expressly enabled by the Provider as part of the Pay DataPlatform’s features; ii. trick, defraud, or mislead the Provider, especially in any attempt to learn sensitive account information such as user passwords; iii. circumvent, disable, or otherwise interfere with security-related features of the Pay Data Platform, including features that prevent or restrict the use or copying of any Content (as defined in Section 11) or enforce limitations on the use of the Pay Data Platform and/or the Content contained therein; iv. attempt to determine the remuneration information of an individual using the Pay Data Platform or whose remuneration information has been included in the Pay Data Platform, unless permitted by the Pay Data Platform, v. disparage, tarnish, or otherwise harm the Provider, its affiliates or group companies or the Pay Data Platform; vi. make improper use of the user supportservices or submit false reports; vii. use the Pay Data Platform in a manner inconsistent with any applicable laws or regulations; viii. engage in unauthorized framing of or linking to the Pay Data Platform; ix. upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, that interferes with any party’s uninterrupted use and enjoyment of the Pay DataPlatform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Pay Data Platform; x. engage in any automated use of the system, such as using scripts to send messages, or using any data mining, robots, or similar data gathering and extraction tools; xi. delete the copyright or other proprietary rights notice from any Content; xii. attempt to impersonate another user or person or use the username of another user; xiii. upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (gifs), pixels, web bugs, cookies, or other similar devices as a ”spyware”; xiv. interfere with, disrupt, or create an undue burden on the Pay Data Platform or the networks or services connected to the Pay Data Platform; xv. attempt to bypass any measures of the Pay Data Platform designed to prevent or restrict access to the Pay DataPlatform, or any portion of the Pay Data Platform; xvi. copy or adapt the Pay DataPlatform's software, including but not limited to Flash, PHP, HTML, JavaScript,or other code; xvii. except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Pay Data Platform; xviii. except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Pay DataPlatform, or using or launching any unauthorized script or other software; xix. make any unauthorized use of the PayData Platform, including collecting usernames and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses; xx. use the Pay Data Platform as part of any effort to compete with the Provider or otherwise use the Pay DataPlatform and/or the Content for any revenue-generating endeavor or commercial enterprise; or xxi. sell or otherwise transfer User account/User credentials.
The Provider reserves the right to monitor the Pay Data Platform for violations of these Terms of Service, take legal action against violators of these Terms of Service or any applicable legislation, and manage the Pay Data Platform to protect the Provider’s rights and ensure the proper functioning of the Pay Data Platform.
6. SUPPORT
The Provider shall provide the Company with reasonable technical and use-related support (excluding training and other related services which shall be agreed separately) in accordance with its own practices. The Provider shall provide the support by means of email and telephone. The Provider shall not be obliged to provide support, assistance or maintenance whatsoever concerning third-party equipment or software.
The Provider has the right to prevent the Company and/or User from using the Pay Data Platform if the Provider has reasonable grounds to suspect that the Company or User is using the Pay Data Platform contrary to the Terms of Service or that the Company or User is burdening the Pay Data Platform in an exceptional manner.
7. CHANGES TO THE PAY DATA PLATFORM
Notwithstanding anything to the contrary in the Agreement, the Provider shall continuously improve and develop the Pay Data Platform and therefore be entitled to make enhancements and modifications to the Pay Data Platform without prior notification to the Company. If the changes amend the interface of the Pay Data Platform, add new features or otherwise noticeably change the user experience, it may be accompanied by release notes. The Provider shall not make changes that would have a materially negative effect on the Service.
8. SUSPENSION OF THE PAY DATA PLATFORM
The Provider shall have the right to suspend delivery of the Pay Data Platform for scheduled maintenance breaks. The schedule of the maintenance breaks shall be provided to the Company upon request. The Provider shall have the right to suspend delivery of the Pay Data Platform due to installation, change or maintenance work of general data network outside the Provider’s control or due to data security risk to the Pay Data Platform or if required by law or authorities. The Provider shall notify the Company of any extraordinary suspensions and the duration of such suspensions in advance or, if this is not reasonably possible, without delay after the Provider has learned of such matter.
The Provider shall have the right to prevent the Company’s and/or Users’ access to the Pay Data Platform without first consulting the Company if the Provider suspects that the User or the Company burdens or uses the Pay Data Platform in a manner that compromises the delivery of the Pay Data Platform to other users or clients. The Provider shall without undue delay inform the Company of the reasons for such prevention.
The Provider has the right to, in its sole discretion and without notice or liability, deny access to and use of the Pay Data Platform (including blocking certain IP addresses), to any person for a breach or suspected breach of Section 5 of these Terms of Service or if it is necessary in order to comply with applicable law or regulation.
If a User provides any information that is untrue, inaccurate, not current, or incomplete to the Pay Data Platform, the Provider shall have the right to suspend or terminate an individual account and refuse any and all current or future use of the Pay Data Platform (or any portion thereof) with that account.
9. BACK-UP OF COMPANY DATA
The Provider shall make back-up copies of the information transferred to Pay Data Platform by the Company or User or for their benefit (“Company Data” or “User Data”). The Provider shall make the back-up copies in conformity with reasonable industry standards.
If the Company Data is deleted, lost, altered or damaged by using Company’s or User’s user ID or the Company or the User has otherwise by its own action deleted, lost, altered or damaged the Company Data or User Data, the Provider shall have the right to charge for the recovery of such Company Data and User Data in accordance with its valid prices and pricing principles.
10. USE ENVIRONMENTS
The Provider shall make back-up copies of the information transferred to Pay Data Platform by the Company or User or for their benefit (“Company Data” or “User Data”). The Provider shall make the back-up copies in conformity with reasonable industry standards.If the Company Data is deleted, lost, altered or damaged by using Company’s or User’s user ID or the Company or the User has otherwise by its own action deleted, lost, altered or damaged the Company Data or User Data, the Provider shall have the right to charge for the recovery of such Company Data and User Data in accordance with its valid prices and pricing principles.
11. INTELLECTUAL PROPERTY
The Intellectual Property Rights to the Pay Data Platform and any amendments, modifications, new versions thereto and any related materials shall belong to the Provider or its affiliates or group companies, as applicable. Unless otherwise indicated, all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Pay Data Platform (collectively, the “Content”) are owned or controlled by the Provider or its affiliates or group companies or licensed to them. The product and service names associated with the Pay Data Platform are service marks and trademarks of the Provider or third-parties, and no right or license is granted to use them. The Agreement does not grant the Company nor User any rights of ownership in or related to the Pay Data Platform or the Intellectual Property Rights owned by the Provider. The Company acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest is granted.
These Terms of Service nor the Agreement have no effect on the Intellectual Property Rights each Party had prior to the Effective Date. These Terms of Service nor the Agreement shall not give a Party any direct, indirect, or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to the other Party.
12. FEEDBACK
The Company may from time to time provide suggestions, comments, or feedback with respect to the Pay Data Platform or confidential information provided originally by the Provider. The Company agrees that all feedback is voluntary and, even if marked as confidential (unless subject to a separate written agreement), shall not create a confidentiality obligation for the Provider. The Provider shall be free to use, disclose, reproduce, license or otherwise distribute such feedback, withoutobligation or restriction of any kind with relation to a Party’s Intellectual Property Rights or otherwise. Notwithstanding the above, no right shall be granted to any Intellectual Property Rights that were in existence prior to the Effective Date.
13. COMPANY DATA AND USER DATA
The Provider has the right to use the Company Data or User Data only for the purposes described in the Agreement and these Terms of Service.
The Company shall be responsible for Company Data and for ensuring that the Company Data does not infringe third-party Intellectual Property Rights or violate any legislation in force at the time. In case of breach of the aforementioned, the Company shall be responsible for, and shall indemnify and hold the Provider harmless from all claims, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) made against or incurred by the Provider.
14. PERSONAL DATA
The Company is responsible for any and all personal data contained in the Company Data and all obligations related to its processing as the data controller designated in the General Data Protection Regulation (EU) 2016/679 (“GDPR”) or other applicable privacy legislation. The Company represents and warrants that it has the authority and required permissions to transfer the aforesaid personal data to the Pay Data Platform.
Allshares Oy and its affiliate Allshares AB operate as joint controllers as referred to in the GDPR (“Joint Controllers”) of the personal data provided to the Pay Data Platform. The Joint Controllers have entered into an agreement in accordance with Article 26 of the GDPR. If the Company chooses to disclose personal data of its employees and directors to be used as part of the database and reference data of the Pay Data Platform, the following shall apply. The Company may disclose the following categories of personal data of its employees/directors: job title, salary, short-term and long-term incentives (both paid and future earning opportunities), other remuneration components, age, years of relevant work experience, starting year of employment, job grades, geographical location of the position, and gender (or as otherwise agreed between the Parties) (“Provided Personal Data”), which the Joint Controllers shall use as data controllers as set out in the GDPR. Only the Joint Controllers and any data processors engaged by them (or the processors) subject to appropriate data processing agreements in compliance with Article 28 of GDPR shall have access to the Provided Personal Data. In multi-year agreements, new data sets shall be disclosed on an annual basis to enable the Provider to keep the Pay Data Platform up to date. The Company shall be solely responsible for having the right to disclose the Provided Personal Data to the Joint Controllers.
Joint Controllers shall become the owners of the Provided Personal Data and shall have the right to use and exploit it for the provision of the Pay Data Platform subject to the applicable privacy notice. The Provided Personal Data shall be used in the database of the Pay Data Platform together with the company metrics of the Company for enabling the provision of the said Service. The Provided Personal Data shall be an integral part of the Pay Data Platform, and the Joint Controllers shall not delete or return or otherwise dispose of the Provided Personal Data before the end of the retention period set out in the applicable privacy notice, if the Agreement terminates for any reason.
Joint Controllers shall use the Provided Personal Data in accordance with the privacy notice for the Pay DataPlatform, which outlines the procedures and the legal basis for the collection, processing, and storage of both Provided Personal Data and personal data collected from public sources. The retention period for the Provided Personal Data shall be five (5) years, after which it shall be removed or permanently anonymized.
Allshares Oy andAllshares AB shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks of processing, including the use of external service providers as processors of personal data. This Section 14applies in parallel with and is without prejudice to Section 13 above concerning Company Data and User Data.
15. LIMITED WARRANTY
The Providerwarrants that the delivery of the Service will be performed in a professionaland timely manner, in accordance with industry standards and the specificationsagreed upon in the Agreement and these Terms of Service. The Provider warrantsthat the Pay Data Platform, and any specifically agreed related services, willbe free from material defects and will function substantially as described inthe Agreement and these Terms of Service. In the event of any failure to meetthese standards, the Provider agrees to promptly correct any deficiencies at noadditional cost to the Company. This warranty is in addition to any otherrights and remedies the Company may have under the Agreement or these Terms ofService or applicable law. No representation or other affirmation of fact,including statements regarding performance of the Pay Data Platform, which isnot contained in the Agreement or these Terms of Service shall be binding onthe Provider.
16. INDEMNIFICATIONS
The Company shall defend, indemnify, and hold the Provider harmless, including its affiliates and group companies, and all respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any third-party due to or arising out of: i. the Company’s or its User’s use of the Pay Data Platform in breach of these Terms of Service; ii. violation of the rights of a third-party, including but not limited to Intellectual Property Rights, by the Company or a User in connection with the use of the Pay Data Platform; or iii. any overt harmful act toward any other user of the Pay Data Platform or a person whose personal data is included in the Pay Data Platform either as User Data or Provided Personal Data. Notwithstanding the foregoing, the Provider shall have the right, at the Company’s expense, to assume the exclusive defense and control of any indemnified matter, and the Company shall cooperate, at its own expense, with the Provider’s defense of such matters. The Provider shall use reasonable efforts to notify the Company of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
The Provider shall defend, indemnify, and hold the Company harmless, including its affiliates and group companies, and all respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third-party due to or arising out of any claim that the Pay Data Platform, as provided by the Provider and when used within the scope and purpose of the Agreement and in accordance with these Terms of Service, infringes or misappropriates any third-party’s Intellectual Property Rights. Notwithstanding the foregoing, the Company shall have the right, at the Provider’s expense, to assume the exclusive defense and control of the indemnified matter, and the Provider shall cooperate, at its own expense, with the Company’s defense of such matters. The Company shall use reasonable efforts to notify the Provider of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it. The liability of the Provider for infringement of Intellectual Property Rights shall be limited to this Section 16.