This master subscription agreement (hereinafter “MSA”) is an agreement between you or the entity that you represent (hereinafter “You” or Your” or “The Customer” or “Controller”) and ASWAT, publisher of ZIWO cloud contact center software as a Service (hereinafter “ZIWO” or “Service”). The MSA governs your usage of ZIWO, ZIWO.io and any other website published by ASWAT from the date of signing up for the application. By signing up to ZIWO, you agree to the terms of this agreement. This Agreement was last updated on March 6, 2019. It is effective between You and Us as of the date of You accepting this Agreement.
In this Agreement, except to the extent expressly provided otherwise:
“Agreement” means this agreement and any amendments to this Agreement from time to time;
“Controller Personal Data” means any Personal Data that is processed by the Processor on behalf of the Controller under or in relation to this Data Processing Agreement;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Controller Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
“Effective Date” means the date of execution of this Agreement;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the European Union from time to time;
“Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.
“ZIWO” means the cloud contact centre software published by ASWAT
2. Object of the Agreement
2.1 The Customer and ASWAT have decided to go into an agreement where ASWAT will be in charge of supplying and maintaining ZIWO, a cloud contact centre software. Details of the products, services, obligations and their prices are described in a separate “product, service and pricing agreement”.
2.2 ASWAT shall perform services for the controller in accordance with the “product, service and pricing agreement”
As personal data will be processed on behalf of the Controller and according to his instructions for this matter, the services are commissioned data processing in accordance with the European Regulation 2016/679 (General Data Protection Regulation, “GDPR”).
The terms” personal data, “processing,“ “block/blocking,“ “consent,” “cross-border, “ “collection,” “Third-party,” “Controller,” and “Processor” are to be interpreted according to the definitions given in Article 4 of the GDPR. The terms “written form” or “written” mean that a document must be signed by the issuer with his name in his own hand, or by his notarially certified initials. The term “text form” means the declaration must be made in a document or in another manner suitable for its permanent reproduction in writing, the person making the declaration must be named, and the completion of the declaration must be shown through the reproduction of a signature of the name or otherwise.
This agreement shall – unless otherwise agreed – become effective when signed by both Parties and shall apply so long as ASWAT processes personal data on behalf of the Controller. However, it does not end before the obligation to delete and return relevant documents and data has been fulfilled by ASWAT, subject to the terms of section 3 herein.
3. Term and Termination
3.1 Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”).
3.2 Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
3.3 Early Termination Without Cause. Both parties shall have the right to terminate this Agreement at any time for any or no reason by giving thirty (30) days’ prior written notice to The Customer.
3.4 For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.
3.5 Effect of Termination. From the last day of the month following the date of termination of this Agreement each Party’s rights and obligations under this Agreement shall terminate other than The Customer’s obligation to pay entirely the overdue accrued prior to the termination of this Agreement. ASWAT will refund within thirty (30) days following the termination any unused top-up credit amount, net of unpaid bills and bank transfer charges.
4. Prices and payment conditions
4.1 All prices exclude travel, lodging, transport and shipment, applicable taxes, duties, licenses, fees, excises or tariffs etc. Those charges are The Customer’s responsibility and invoices will include all such applicable charges. In the event taxes are required to be withheld by any foreign government on payments required hereunder, unless The Customer can ensure that ASWAT will be eligible for a foreign tax credit, The Customer shall gross-up the amount due to ASWAT so that ASWAT shall receive the full amount due hereunder. The Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.
4.2 Any payments due hereunder shall be grossed up for any non-refundable withholding tax imposed on The Customer by a governmental entity.
4.3 ASWAT reserves the right to modify its standard Price List at any time. Modifications will be effective from the date on which written notice is provided by ASWAT to the Customer. Such written notice may be provided by ASWAT using certified mail, fax, e-mail or any other reasonable means of written communication.
4.4 ASWAT will invoice for all amounts due hereunder as described in the “product, service and pricing agreement”. The Customer agrees to pay said invoices according to the terms in the same “product, service and pricing agreement”. All amounts remaining unpaid on the due date shall be subject to a late payment penalty.
4.5 In the event that ASWAT personnel, for whatever reason, are required to travel as part of their performance hereunder, then the travel and associated living expenses will be billed separately according to ASWAT standard time and material rates and ASWAT travel policy.
5. Technical and organizational measures
5.1 ASWAT warrants and undertakes to employ and document reasonable and appropriate technical and organizational security measures for the data processing.
5.2 In the event of major changes in the security measures, but at least once a year ASWAT may supply an update of the documentation of these technical and organizational Measures.
5.3 ASWAT shall support the Controller upon request in creating the list of security operations according to the GDPR and in keeping it up to date as far as the processing operations and the employed technical and organizational measures are affected. On request ASWAT shall disclose the necessary information and documents to the Controller.
5.4 Correction, erasure and blocking of data. ASWAT shall not correct, erase or block personal data provided by the Controller unless the Controller instructs him to do so.
6. Duties of ASWAT
6.1 ASWAT hereby confirms that he knows and is aware of the relevant European data protection regulations. ASWAT’s internal operating procedures shall comply with the specific requirements of an effective data protection management.
6.2 ASWAT warrants and undertakes that all employees involved in the webinar platform procedures are familiar with the relevant data protection regulations. ASWATs assures that those employees are bound to maintain confidentiality as provided by the GDPR. ASWAT shall monitor compliance with the applicable data protection Regulations.
6.3 If required by law ASWAT appoints a data protection officer and informs the Controller about his contact details.
6.4 Personal data processed for different Controllers shall be processed separately.
6.5 ASWAT shall specify the countries (City/Country) where his data processing centers are located.
Data processing: Germany, France, United Arab Emirates, Saudi Arabia, Bahrain, Oman and Kuwait
6.6 ASWAT shall at all times have in place an individual who is responsible for assisting the Controller and shall share this individual’s name upon request.
in responding inquiries concerning the commissioned data processing, received from data subjects and
in completing all legal information and disclosure requirements which apply to the Controller and are associated with the commissioned data processing.
6.7 ASWAT shall take no steps to any enquiry received from data subjects or Third Parties except on written instructions by the Controller. As far as a data subject addresses the Cloud-Processor to enforce his or her claims established in the GDPR, ASWAT shall forward this request promptly to the Controller.
7.1 The list of companies that provide substantial Services for ASWAT on a contractual basis and are considered as subcontractors can be communicated at any time by simply sending an email to: dataprivacy (at) aswat-telecom (dot) com
7.2 The engagement of further subcontractors is only allowed if the Controller has given its prior consent – either in written or in text form.
7.3 ASWAT ensures that the subcontractor’s processing is carried out under a written contract imposing on the subcontractor the same obligations imposed on ASWAT under this agreement; in particular, every subcontractor is obliged to specify the cities and countries where its data processing centers are located.
7.4 Access to the relevant personal data may only be granted when the subcontractor complies or assures compliance with the obligations of this agreement to the Controller and ASWAT controls the subcontractor’s compliance with these obligations on a regular basis.
7.5 Ancillary services which are provided to and on behalf of ASWAT by Third party service providers and which are determined to support ASWAT to execute the assignment services shall not be regarded as subcontracts in the sense of this agreement. Such services may include, for example, services of telecommunication, cleaning or facility management. However, ASWAT shall enter into legally binding and adequate agreements with Third party service providers regarding the protection and the security of the Controller’s data accessible by the Third-party service providers and employ appropriate control Measures.
8. Right of inspection of the Controller
8.1 The Processor shall allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller in respect of the compliance of the Processor’s processing of Controller Personal Data with the Data Protection Laws and this Clause. The Processor may charge the Controller at its standard time-based charging rates for any work performed by the Processor at the request of the Controller pursuant to this Clause.
8.2 If, upon completion of the foregoing, the Controller is not reasonably satisfied with the security measures taken according to clause 3 of this contract, then upon the controller’s reasonable advance request, ASWAT will provide the Controller with system test results and/or penetration testing scan results for the Controller’s review of ASWAT’s compliance with the obligations set forth in this agreement.
9. Obligation to report violations of provisions to protect personal data
9.1 ASWAT shall promptly notify the Controller of any failures, errors or inaccuracies in the operating procedures which implicate menace to personal data provided by the Controller as well as of any suspicion of data protection infringements committed by employees, the Cloud-Subcontractor or other Third Parties which concern personal data provided by the Controller. In addition, ASWAT shall promptly inform the Controller if he discovers that his technical and organizational measures do not comply with legal requirements.
10. Instructions of the Controller
10.1 The Controller is solely responsible for compliance with the GDPR and other data protection provisions. He is liable for the admissibility of the data processing and for the protection of the data subjects’ rights according to the GDPR and other data protection Provisions.
10.2 The Controller is entitled to give instructions to ASWAT on the extent, type and methods of the data processing. Generally, instructions can be given orally. However, instructions must be issued in written form or in text form if ASWAT asks the Controller to do so.
10.3 ASWAT shall process the personal data provided by the Controller exclusively on behalf of the Controller and in accordance with his instructions.
10.4 ASWAT shall promptly notify the Controller if he believes that an instruction of the Controller does not comply with the applicable legal provisions of data protection.
10.5 The Controller shall promptly notify ASWAT if failures or irregularities are recognized in the course of the examination of the data processing results.
Modification of Agreement. This Agreement may be amended through the mutual agreement of Parties in writing.
Assignment. Either Party can assign this Agreement to an entity controlling, controlled by, or under common control with, that Party (each being an “Affiliate”). Assignments to non-Affiliate entities shall be subject to the other Party’s written consent, such consent not to be unreasonably withheld.
No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.
Both Parties warrant that at all times during the Term they will comply with all applicable laws and regulations. During the Term and after termination of this Agreement for any reason whatsoever, The Customer expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of ASWAT and will not make, publish any disparaging remarks concerning ASWAT, its representatives, or ASWAT Service.
Our Warranties. We warrant that:
All articles – whether promoting ZIWO usage or general business advice – are provided on an “as is” basis. ZIWO does not make any warranties – expressed or implied – by publishing these articles on our site.
For any breach of such warranty, your exclusive remedy shall be as provided in Section 12.2 (Termination for Cause) and Section 5.5 (Refunds).
You warrant that you will use the service in accordance with the usage policies outlined in Section 2 and the policies mentioned throughout this Agreement. You also warrant that you will not use the service to do anything unlawful. In cases where you are found to be in conflict the law, ZIWO will always take the side of the law and abide by the law, including releasing information about your activities, data to the appropriate legal authority. For any breach of such warranty:
ZIWO may suspend your account in all the ZIWO firms that you have access to.
Your firm may be disallowed to use ZIWO.
You may be disallowed to open new accounts in ZIWO.
Each party represents and warrants that:
It has the legal power to enter into this Agreement.
Will obey the factors and clauses stated in this Agreement.
We disclaim all warranties of any kind. Except as expressly provided herein, either party makes no warranties of any kind, express, implied, statutory or otherwise. This disclaimer applies to everything including warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. You use the Service solely on your own risk. We make no warranty that the services are uninterrupted, timely or secure. Any advice or information, written or oral, given to you by ZIWO, our employees or representatives does not create any warranty not stated in the terms expressly.
We take no responsibility and shall have no liability, for any incorrect or inaccurate content posted related to ZIWO, whether stated by us, any User, Partner or other Person.
Using the Services for illegal purposes or spamming is strictly prohibited. It is your responsibility to comply with the laws of the jurisdictions you operate in, and the laws of the countries where you interact thru our services.
You are not allowed to use the Service for illegal purposes and/or activities, or to promote illegal activities. You are not allowed to use the Service or our website(s) to harass, abuse, harm or discriminate others. You will be solely responsible for the activities you use the Services for, and the content you upload or create in the Service. We will take no responsibility to monitor the conduct of any User of the Service. Using the service for transmission of “spam”, “junk mail”, “chain letters”, “phishing” or for unsolicited mass distribution of calls, email, SMS or other text messages is forbidden.
If we have reason to believe that you are using the Services for illegal or unauthorized action, we may eliminate your account and prevent you from using the Services now or in the future.
LIMITATION OF LIABILITY. IN NO EVENT SHALL ASWAT, NOR THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS OR ANY OTHER REPRESENTATIVE SHALL BE LIABLE TOWARDS THE OTHER PARTY OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, EITHER PARTY’S ENTIRE LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED $100 U.S. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY THE OTHER PARTY UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT EACH PARTY RECOGNIZES THE LIMITATIONS HEREIN ON ASWAT’S LIABILITY.
By agreeing to this Agreement, you agree to indemnify and hold harmless ZIWO, our employees, suppliers and affiliates from and against any losses, damages, fines and expenses, arising out of or relating to any claims that you have used the Service in violation of any law, provisions of the terms or any other claim related to your use of Services, except where such use is authorized by ZIWO.
Confidential Information and Prohibition on Raiding.
(i) Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals’ information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for one year after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.
(ii) The Parties shall keep confidential all business secrets and data security measures they gain knowledge of in the context of the contractual relationship. Business secrets are all (but not limited to) business-related facts, circumstances and activities which are not generally accessible, but only accessible to a limited group of persons unless ASWAT has no legitimate interest of non-proliferation. Data security measures are all measures taken to preserve the privacy, integrity and availability of data according to the GDPR. This obligation of secrecy remains effective after the termination of this contract.
(iii) In case one Party is subject to further obligations of secrecy and has informed the other Party in written form hereof, the other Party is obliged to comply with those obligations as well.
Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by ASWAT’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page.
Governing Law; Jurisdiction; Dispute Resolution. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Arbitration Rules of the Dubai International Finance Centre / London Court of International Arbitration (“DIFC-LCIA”) Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause. The seat, or legal place, of arbitration shall be Dubai International Finance Centre, UAE. The language to be used in the arbitration shall be English. The arbitral tribunal will consist of only one (1) arbitrator who will be selected by agreement between the Parties. If the Parties fail to agree on an arbitrator within the applicable time period, such appointment will be made in accordance with the DIFC-LCIA Rules. The award of the arbitral tribunal is final and binding on the Parties.
BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR OBLIGATIONS HEREUNDER, AND THAT THE PERSON WHO’S SIGNATURE APPEARS BELOW IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.
Communication from ZIWO
We may communicate with you through emails, newsletters and service announcements. You can unsubscribe from our Newsletter but you will not be able to opt-out from receiving service announcements and administrative messages.
ZIWO is a trademark of ASWAT FZ LLC. You agree not to display or use, in any manner, the ZIWO trademark without our prior permission.
Modification of terms
This Agreement supersedes any previous Agreement to which you and ASWAT may have been bound. This Agreement may be modified by ASWAT in its sole discretion from time to time and such modifications will become part of this Agreement and will be effective once posted by ASWAT on the Website. You should review the Website and this Agreement from time to time for any modifications. Your continued use of the Service will be taken as your agreement to the modified Terms.
End of Agreement.
You can address any comments or questions regarding this agreement by connecting https://www.ziwo.io/contact-us/