TERMS AND CONDITIONS 2020

LAST UPDATED: 15/12/2020

PLEASE READ THESE TERMS AND CONDITIONS (“T&C”) OF BAUER SME SERVICES GMBH (“BAUER”) CAREFULLY AS THESE T&C APPLY TO ALL BUSINESSES WHO ACCESS OR USE THE SERVICES (“USERS”) AND, ONCE ACCEPTED, FORM A LEGALLY BINDING AGREEMENT BETWEEN EACH USER AND BAUER. IF YOU DO NOT AGREE TO ALL THE TERMS OF THESE T&C, YOU SHOULD NOT ACCESS OR USE THE SERVICES WHICH INCLUDE INTER ALIA ACCESSING AND USING THE WEBSITE AND/OR THE MOBILE APPLICATION, AS DEFINED BELOW. BY CLICKING THE “START YOUR FREE TRIAL” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE T&C AND YOU AGREE THAT REGULATION 11 OF THE ELECTRONIC COMMERCE (EC DIRECTIVE) REGULATIONS 2002 SHALL BE DISAPPLIED. FOR PURPOSES OF THESE T&C, IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF A BUSINESS, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS ENTITY AND THE TERMS “CUSTOMER”, “USER” AND “YOU” REFERS TO THAT BUSINESS ENTITY AND ALL THE USERS ACCESSING OR USING THE SERVICES ON BEHALF OF SUCH BUSINESS ENTITY.

IF YOU ARE LOCATED IN THE U.S., NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION AGREEMENT, INCLUDING CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THESE T&C AND WITH RESPECT TO CLAIMS OR DISPUTES YOU MAY HAVE WITH BAUER.  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW (SEE SECTION 21 (DISPUTE RESOLUTION – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER)).

1.       The Services. “12handz” is a service provided by Bauer, which offers a SaaS solution to enable its customers (the “Customers” or “you”) to grow their SME businesses, including to create and operate websites, Facebook page apps, and other market data gathering activities and features including payment features and scheduling tools, and in addition Bauer owns and operates the 12handz’s website (https://www.12handz.com/) (the “Website”) and mobile application (the “Mobile Application”) (collectively, the “Services”).

 

Bauer will provide you the Services from a data centre facility selected by Bauer. You acknowledge that some subcontractors will provide, among other things, servers, power and internet telecommunications for the hosting servers.

In order to use certain Services of Bauer, you must first register and create an account on the 12handz dashboard enabling you to choose a pre-determined package of modules of the Services (“Account” and “Package”, respectively). 

You may change the Package in your Account at any point of time throughout the term of the Services, but you acknowledge and understand that such change may be subject to changes in the Services Fees (as defined below) and as will be indicated to you and subject to your acceptance before any changes take effect.

Bauer, in its full discretion, may provide the Services for free, as a free trial or for other reasons, for a period of time as Bauer may decide (which will be made clear to you), and subject to conditions as will be notified to you during your registration and creation of an Account. Bauer may immediately delete your Account and will terminate any Services rendered under these T&C at the expiry of the trial/non-payment period where you have not signed up to a paid Subscription.

2.    Rights of Use. Bauer grants you a limited, non-exclusive, non-transferable, worldwide right to use the Services, on a hosted basis, in accordance with these T&C, limited by the term and the terms of these T&C, without the right to sublicense and subject to the following provisions: (a) your use of the Services is allowed solely for your own use and not for the purposes of resale or redistribution; (b) you will fully comply with all applicable laws and any other contractual terms which govern the use of the Services (and any related interaction or transaction), including those specific laws applicable to you in your geographical location; (c) you will be solely responsible in relation to your use of the Services, including those which occur under your Account, and for any of the User Data (defined below) (including for any consequences of using or publishing such User Data on or with respect to the Services); (d) you will regularly and independently save and backup any of the User Data and the information that is being processed by you regarding the Services; and (e) you will otherwise comply with the terms and conditions of these T&C.

 

 

Mobile Application.

Bauer makes available a Mobile Application to access portions of the Services via a mobile device.  To use the Mobile Application, you must have a mobile device that is compatible with the mobile service.  Bauer does not warrant that the Mobile Application will be compatible with your mobile device.  Bauer hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for you and multiple team members on mobile devices owned or leased solely by you or your team members, for personal or internal business purposes.  You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application.  You acknowledge that Bauer may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device.  You consent to such automatic upgrading on your mobile device, and agree that these T&C will apply to all such upgrades.  The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Bauer and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application).  Standard carrier data charges may apply to your use of the Mobile Application.

The following additional terms and conditions apply with respect to any Mobile Application that Bauer provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

The following additional terms and conditions apply with respect to any Mobile Application that Bauer provides to you designed for use on an Android-powered mobile device (an “Android App”):

The following additional terms and conditions apply with respect to any Mobile Application that Bauer provides to you designed for use on an Android-powered mobile device and obtained from the Amazon App Store (an “Amazon Android App”):

Amazon has no obligation or liability to you with respect to Bauer’s Amazon Android App and the Services and content available thereon or these T&C.  Bauer, and not Amazon, are solely responsible for Bauer’s Amazon Android App and the Services and content available thereon.  For the avoidance of doubt, the Amazon Android App does not include any software that you may need to install on your mobile device in order to download applications from the Amazon App Store (the “Appstore Software”).  The Appstore Software is licensed to you by Amazon pursuant to the terms of the then current Amazon Appstore for Android Terms of Use

 

3.      Bauer’s and Third Parties’ Websites and Services. These T&C apply to all Users. The Services may contain links to third party websites that are not owned or controlled by Bauer and, in order to access some features of the Services which are provided by, with or through a third party, you may have to create an account with such third party and/or enter into a separate commercial relationship with such entity. Bauer has no control over, and assumes no responsibility for, the content, terms of use, privacy policies, or practices of any third party’s websites or services. In addition, Bauer is not able to censor or edit the content of any third party website or service, and its ability to control the content of a Customer’s website is limited by the terms of this agreement. While Bauer requests its Customers and third parties to comply with regulations for advertising and marketing on the internet, as a practical matter, Bauer has no independent means to verify such content compliance. Accordingly, we encourage you to be aware when you access some features of a website or services which are provided by, with or through a third party, and to read the terms and conditions and privacy policy of each third party’s website and service that you access.  YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BAUER WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY SITES AND/OR THIRD PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.

You may distribute promotions and other media utilising tools/services offered on the Services. If you use the Services, you acknowledge to Bauer that you understand that you are responsible for your promotions and media distributed through the Services and for ensuring that such promotions and media comply with all applicable laws, rules, and regulations. You should ensure you make available clear rules of the promotion including any applicable privacy policy, applicable terms and conditions, and any additional information or links provided to ensure compliance with such laws. You acknowledge that Bauer is not responsible or liable for your failure or any failure of any third-party to comply with the rules, terms, conditions, policies, and applicable laws, rules, or regulations governing any online service. You acknowledge and agree that Bauer does not sponsor, administer or endorse, and is therefore not liable for, the content of any promotion or media distributed through the Services. You acknowledge and agree that Bauer is not responsible or liable for your use or distribution of information you provide.

4.      Restrictions. You will not directly or indirectly: (a) create any derivative works based upon the Services; (b) copy or distribute any part of the Services in any medium without Bauer’s prior written authorisation; (c) alter or modify any part of the Services other than as may be reasonably necessary to use the Services for its intended purpose (d) work around any technical limitations in the Services or use the Services in an attempt to, or in conjunction with any device, program, or service designed to, circumvent technical measures employed to control access to, or the rights in, a content, file, or other work; (e) reverse engineer, decompile, decipher, translate, disassemble, or otherwise attempt to access source code of the Services, unless allowed by applicable law; (f) publish, rent, lease, lend, sell, sublicense, distribute, transfer, disclose, or otherwise make the Services available to any third party; (g) remove or alter any proprietary notices or labels on or in the Services; (h) use the Services in connection with the development or transmission of any virus or malicious code; (i) use the Services to infringe the rights of Bauer or any third party, or in any way that does not comply with all applicable laws; (j) copy any graphics of the Services; or (k) submit to the Services any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise illegal (collectively, “Objectionable Matter”).

You will indemnify and hold Bauer and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless in respect of any claims and damages (including, but not limited to, all reasonable costs, expenses and attorneys’ fees incurred thereby) incurred by Bauer arising out of or in connection with any Objectionable Material submitted to the Services. Bauer reserves the right to remove any data, information or material provided or submitted to Bauer in the course of utilising the Services that constitutes Objectionable Matter or violates any Bauer rules regarding appropriate use disclosed to you beforehand or violates these T&C or Bauer’s privacy policy located at https://12handz.com/privacy-policy/ (the “Privacy Policy”).

5.      System Design Limitations. You acknowledge that 12handz system has technical and design limitations as set forth below (per each Account):

(i) Contacts – 2,000
(ii) Site pages – 25
(iii) Media Storage – 250MB
(iv) Social pages – 1 per supported social platform
(v) Products (in Product Catalogue) – 1,000
 (vi) Services (in Services Catalogue) – 100

You will not upload to the Account information that exceeds the system design limitations and/or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Bauer’s systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the Services, or the servers or networks connected to the Services.

You will not: (i) act in a manner which might be perceived as damaging to Bauer’s reputation and goodwill or which may bring Bauer into disrepute or harm; (ii) upload to the Account or otherwise use the Services to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (iii) use any of the Services and/or the Account in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct; (iv) sell, license, or exploit for any commercial purposes any use of or access to the Services, except as expressly permitted by these T&C; or (v) violate, attempt to violate, or otherwise fail to comply with any of these T&C or any laws or requirements applicable to the use of the Services.

6.      Automatically Renewing Subscriptions

The use of the Services (except visiting the Website or in the case of a free trial) requires payment of fees (the “Subscription Fees”). If you elect to sign up for the Services, you will pay the Subscription Fees according to the subscription package that you choose when you create your Account or afterwards, as applicable, and subject to the provisions of these T&C. Bauer also offers special Features as add-ons to your subscription which, upon your decision to purchase, will require payment of fees and are subject to the provisions of these T&C (the “Feature Fee”; and the Subscription Fees and Feature Fees together, the “Services Fees”). The Services Fees will be paid by you to Bauer.

 

Subscriptions

 

In order to provide you with continuous Services, your subscription will automatically renew on a regular (i.e. monthly) basis that automatically renews until you cancel (a “Subscription”).  By setting up a Subscription, you become a “Subscriber” with access to use certain Services.  Each Subscription and the rights and privileges provided to a Subscriber is personal and non-transferable.

 

The term for your Subscription will be the frequency selected by you when you register for an Account (the “Subscription Term”), i.e. monthly. We automatically renew all Subscriptions on a recurring basis in accordance with the billing terms you agreed to at the time you signed up for an Account (for example, if your subscription is for a month it will renew for a further month) at the same price (subject to applicable tax changes which will be notified to you in advance).  For information on your Subscription Term and recurring amounts, refer to the email you received confirming your order (“Confirmation Email”).  Your Subscription will automatically renew at the beginning of each billing period on the same terms until you cancel at any time by using any of the cancellation methods below (see below, How to Cancel). 

 

Where you are located in the US, your notice of cancellation must be received at least two days prior to the end of the then-current Subscription Term, and a cancellation will be effective on the next renewal date of your Subscription following your Notice of Cancellation.  You will not receive a refund for any prepaid amounts but will be able to access and use the Services until the end of the then-current term.  Where you are located in the UK, your notice of cancellation must be received the day before the end of the then-current Subscription Term, and the cancellation will be effective such that there is no further renewal following your notice of cancellation.

 

You are liable for paying any and all applicable sales and use taxes for the purchase of your Subscription based on the mailing address that you provide when you register as a Subscriber, and you authorize Bauer to charge your credit card for any such applicable taxes.

 

Billing Information

 

You may pay for your Service Fees only with credit card payments (e.g. Visa, MasterCard, American Express, and Discover or other available providers).  We will charge your credit card for your first Service Fees on the date that we process the first order for Services under your Subscription.  

 

When you provide a payment method to Bauer, you are granting your express consent and are expressly authorizing Bauer (and our designated payment processor) to automatically charge you each period for the Subscription.  If You provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee.

 

You must provide and at all times must maintain accurate, complete, and current billing information, including but not limited to your billing address, credit card number, and credit card expiration date. If you fail to disclose any such information, you agree that we may continue charging you for any use of the Subscription unless you have terminated your Subscription as set forth herein.  If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify Bauer immediately.

 

As further specified below in section 7 of these T&C, Bauer expressly reserves the right to terminate these T&C in the event that you fail to pay any Subscription Fees or any part thereof owed by you to Bauer. If you do not pay on time or if we cannot charge your credit card or other payment method for any reason, we reserve the right to either suspend or terminate your access to the Services and terminate these T&C. You also agree that you will be responsible for all costs and expenses incurred by Bauer, such as court costs, collection fees, and attorney fees, incurred in connection with such collection efforts.

Your obligation to pay any and all prices and fees will survive any termination of these T&C.

 

How to Cancel


To cancel your Account, simply go to the subscription page in the dashboard or refer to the corresponding help section.  Your notice of cancellation must be received at least two days prior to the end of the then-current Subscription Term, and a cancellation will be effective on the next renewal date of your Subscription following your Notice of Cancellation. You will not receive a refund for any prepaid amounts but will be able to access and use the Services until the end of the then-current term.

 

If you are located in the United Kingdom, the following terms shall apply: YOU CAN AMEND OR CANCEL YOUR SUBSCRIPTION, AND THEREBY STOP THE AUTOMATIC RENEWAL AT ANY TIME THROUGH YOUR ACCOUNT OR BY CONTACTING OUR CUSTOMER SERVICES TEAM ON CUSTOMER@12HANDZ.COM. SUCH CANCELLATION WILL ONLY TAKE EFFECT AT THE END OF THE SUBSCRIPTION PERIOD.

 

Modifications to Services and Pricing

 

We reserve the right to modify pricing at any time.  In the event the price for your Subscription has been modified, and you are required to pay a different fee than at the time you entered into these T&C, you will be notified at least thirty (30) days before you are billed at the different rate at the email address for you on file and have the opportunity to cancel your account.  If you do not cancel your Subscription before the next billing renewal date (at the new rate), you will be deemed to have accepted the new fees.

Currency; Invoicing

All Services Fees will be in local currency (i.e. dollars in the U.S. and British pounds in the United Kingdom as applicable).

All Services Fees and other fees are exclusive of all applicable government taxes (such as VAT, sales, withholding and similar taxes) and similar charges, for which you will be solely responsible.  U.S. state and local sales and use taxes will be included on an invoice where applicable, and charged to you.

Bauer and/or its affiliated companies will issue an invoice for any payment of Services Fees. Each invoice will be issued in electronic form and based on the country stated in your billing address, and will be made available to you via your Account and/or by e-mail. For the purpose of issuing the invoice, you may be required to furnish certain Personal Data (as such term is defined in the Privacy Policy) in order to comply with local laws. Please note that the invoice presented in your Account may be inadequate with your local law requirements, and in such case may be used for pro forma purposes only. 

      

       7.     Payment Feature

 

If you are a business, you will be able to choose a Feature whereby you may accept payments from purchasers of your goods or services or donors to your organization (each an “End User”) (the “Payment Feature”). The Payment Feature may be subject to additional terms and additional fees, both of which will be communicated to you when you create your Account or when you select the Payment Feature, if later. Please note that the following terms currently apply to the Payment Feature:

(i) Refunds: The Payment Feature only allows for transactions to be refunded in full and does not allow for the processing of partial refunds to End Users. You may instead, for example, provide a partial refund by alternative payment method or offer the End User a voucher to the value of the partial refund. If you provide a refund in full to an End User, you will not be entitled to any refund of Feature Fees paid in respect of the Payment Feature.

(ii) Responsibility for Goods and Services: You will at all times be fully responsible for the goods and services provided to End Users and any relevant refunds payable. Accordingly, you will be responsible for all questions, claims, disputes and support in relation to your transactions under the Payment Feature.

(iii) Investigating Disputed Payments: Should you request our support in investigating any disputed payments under the Payment Feature, you agree to assist us when requested, at your expense, in respect of such investigations. To that end, you acknowledge and agree that we may share information, without limitation, about a contested transaction or any transaction that may be reversed or charged back to your Account (a “Chargeback”) with the End User, the End User’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Account. If a Chargeback dispute is not resolved in your favour or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees for our assistance. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

(iv) Authorization to Charge Payment Methods on Account: By selecting the Payment Feature, you authorise us to charge any payment method we have on file for you in the amount of any Chargeback; any losses we may incur relating to your transactions under the Payment Feature; or any other amount you owe us. To execute such charges, you expressly authorize us to charge any credit card account we have on file for you. We are not responsible for any amount you may incur from our charges, including overdraft and overlimit fees. If you do not pay on time; or if we cannot charge your credit card or other payment method for any reason; or we reasonably believe that you are misusing the Payment Feature, we reserve the right to either suspend or terminate your access to the Services and terminate these T&C.

(v) We expressly reserve the right to suspend or block any outgoing payments from your Payment Feature account to your bank account, in the event that your bank account details have been changed and you are unable to demonstrate to our reasonable satisfaction that such change was intentional and that you are the rightful owner of the new bank account.

 

8.      Cancellation Right. Bauer and/or you may terminate this T&C, and you may request to terminate your Account and/or any Services at any time, in accordance with the instructions available on the Website and/or Application and/or on your Account. The effective date and time for termination of the Services will be at the end of such Subscription Term.

The statutory rights of either party to terminate the Services without a notice period remain unaffected. Users or Bauer may in particular terminate Accounts and/or any Services at any time in case the other party has not complied with the terms of these T&C on reasonable notice.

Upon any termination of these T&C: (1) the licence to use the Services granted to you in these T&C will expire and you, upon termination, will discontinue all further use of the Services; and (2) you will promptly return to Bauer all tangible property representing Bauer’s Intellectual Property rights (defined below) and all copies thereof and/or will erase/delete any such information held by you in electronic form.

You acknowledge that when you terminate the Services for any reason you will no longer have access to content, features, or capacity of the Services, including any User Data (as defined below) or other usage data retained therein. You should therefore take steps to backup your Data as Bauer will not be liable in any way for saving a backup of your User Data or responsible for your inability to access such content, features, capacity or data.

9.      Intellectual Property. These T&C grant no ownership rights to you or any other party, of the Services, and all patents, copyrights, trademarks, designs and any other intellectual property rights, whether registered or not, and all related know-how therein (collectively, the “Intellectual Property”), are not transferred by these T&C, and will remain the sole property of Bauer and/or its suppliers at all times. You acknowledge that the Intellectual Property belongs and will belong to Bauer. You will not acquire any right, title, or interest in the aforesaid Intellectual Property or otherwise in connection with the Services, except for the limited rights of use expressly set forth in these T&C. Any rights not expressly granted herein will be deemed withheld.

Any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary.  Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion.  Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

The Bauer name, the Bauer logo, and the product names and logos associated with the Services including “12handz” title and logo, are trademarks of Bauer or third parties, as applicable, and may not be used without Bauer’s prior written consent. All the images presented in the Services including modules (“Images”) are for illustrative purposes only and are subject to the licence granted to Bauer to use the Images for limited purposes only. You are obligated to replace all Images.

Bauer respects the intellectual property of others, and we ask you to do the same. You, therefore, agree that any content that you post to the Services does not and will not violate any law or infringe the rights of any third party, including, without limitation, any intellectual property rights, publicity rights, or rights of privacy. Bauer may, in appropriate circumstances and at its discretion, disable or terminate the Services through which the rights of others are infringed. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please get in touch with us via e-mail to “customer@12handz.com”.

If you are based in the U.S., with respect to content posted by you that you believe constitutes copyright infringement or a violation other intellectual property rights, the following terms apply:

 

Pursuant to and subject to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Services, please provide written notice to our Agent for notice of claims of infringement:

Attn: [12handz] DMCA Agent 

CC: [General Counsel]

Email: DMCA@12handz.com

Address: Bauer SME Services GmbH, Copyright Compliance Department, Burchardstr. 11, 20095 Hamburg, Germany

To be sure the matter is handled immediately, your written notice must:

·          Contain your physical or electronic signature;

 

·          Identify the copyrighted work or other intellectual property alleged to have been infringed;

 

·          Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;

 

·          Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);

 

·        Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;

 

·          Contain a statement that the information in the written notice is accurate; and

 

·     Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.

 

·       Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:

1.  Your physical or electronic signature;

2.  Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

3.  A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

4.  Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

 

 

Termination of Repeat Infringers

We reserve the right, in our sole discretion, to terminate the account or access of any user of this Website or Services who is the subject of repeated DMCA or other infringement notifications.

10.    Open Source Software. Notwithstanding the above-mentioned, the Services may contain certain Open Source Software (defined below). Such Open Source Software is subject to the terms and conditions of the respective open source licence agreement (“Open Source Licences”). Please refer to https://12handz.com/open-source/for a copy of the Open Source Licences. This list of Open Source Licences may be updated by Bauer from time to time. You acknowledge and agree to the terms and conditions in each such Open Source Licence and that you are solely responsible for complying with such terms and conditions. Notwithstanding anything to the contrary in these T&C, with respect to each item of Open Source Software, to the extent there are any irreconcilable conflicts between any terms of these T&C and any terms of the respective Open Source Licence, which the Open Source Licence does not permit, such conflicting terms of these T&C will not apply. Where the terms of any specific Open Source Licence entitle you to the source code of the respective Open Source Software, upon your request, Bauer may either make that source code available to you or direct you to where you can obtain that source code.

For the purpose of these T&C “Open Source Software” means all software, documentation and other material that is distributed as “free software,” “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Berkeley Software Distribution (BSD) license, MIT License, Apache License or any other license described by the Open Source Initiative as set forth on www.opensource.org. 

11.     User Data. To the extent you provide any data and/or content and/or other materials in connection with the Services to Bauer (“User Data”), it is hereby agreed that User Data will remain the sole property of you (or your customer, as applicable) at all time. Bauer will be entitled to use User Data solely during the term of these T&C solely for the purpose of the Services. Bauer will adhere to the data protection law applicable in the processing and use of personal data. Information on how Bauer process personal data that you provide when using or accessing the Website and/or the Services can be found in the Privacy Policy. You can access the Privacy Policy via https://12handz.com/privacy-policy/, which also includes the language to address Article 28 of the General Data Protection Regulation where Bauer acts as a processor. You represent and warrant that you are authorized to process your User Data and make such User Data available to Bauer for uses as set out in these T&C and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding our ability and right, to which you agree, to request consent, and provide notice and its Privacy Policy separately to individuals). You will grant Bauer a non-exclusive, non-transferable, royalty-free, fully paid up, worldwide sublicensable right of use (the “Licence”) effective for the term of these T&C to use User Data for the purpose of the Services and as detailed in the Privacy Policy. The Licence includes, in particular, the right of reproduction and the right to make the User Data publicly available, as well as the right to edit, insofar as editing is necessary for providing the Services and the copyright interests of the author are preserved. You may revoke the Licence any time by removing the User Data. If you cannot remove the User Data, you can declare the revocation to Bauer by e-mail to “customer@12handz.com”, by giving an exact description of the respective User Data. For technical reasons, deletion of User Data may take up to 3 business days to complete.

You confirm, covenant, represent and warrant that: (a) you own all rights (including intellectual property rights in and to any of your User Data, or have obtained all necessary licence(s) and permission(s)), to use your User Data; (b) you have the rights necessary to grant the Licence to Bauer; (c) your User Data does not violate or infringe any applicable data protection law, intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party; and (d) you obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Data, and you will adhere to all laws applicable thereto.

You will indemnify and hold Bauer and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including, without being limited to, reasonable attorneys’ fees, due to or arising out of or in connection with any of your User Data submitted to the Services, including in case of violation of any rights of another including any copyright, property, or data protection or privacy right.

12.     Services Access. As mentioned above, in order to access some features of the Services, you will have to create an Account with Bauer. You may never use another’s Account without permission. When creating your Account, you must provide accurate and complete information. You agree not to use the Services to impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity. You store the access data securely at all times and protect it from access by third parties. You may only use your Account personally and may not make the access data available to third parties for the use of the Account or make the Account accessible in any other way. You are liable to Bauer for the misuse of your Account due to or arising from your negligent acts or omissions. You must notify Bauer immediately of any breach of security or unauthorised use of your Account or personal data, as the case may be.

13.     Liability.

(a) No Consequential Damages.  UNDER NO CIRCUMSTANCES WILL BAUER BE LIABLE FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OF ANY OTHER KIND ARISING OUT OF ACCESS TO OR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANYTHING CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION, FAILURE OR MALFUNCTION OF ANY COMPUTER SYSTEM OR SOFTWARE PROGRAMS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR OTHERWISE, EVEN IF BAUER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR THE SAME IS CONSIDERED REASONABLY FORESEEABLE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

(b)  Limits on Liability.  IN NO EVENT WILL BAUER’S CUMULATIVE, TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) EXCEED THE FEES PAID FOR THE PRECEDING 12 MONTHS FROM THE DATE THE LIABILITY AROSE. 

(c)  Bauer further assumes no responsibility, and will not be liable for, any loss or corruption of data on account of your access to or use of the Services. Further, Bauer is not responsible for, and shall have no liability with respect to, any services, goods or products you offer on or using our Services.  You shall be solely liable and responsible for any services, goods or products sold by you, including without limitation such services, goods or products that were not delivered at all or that were otherwise unsatisfactory to any End User.

(d) This section does not, however, affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation, nor any other liability which cannot be excluded or limited under applicable law.

13.     Disclaimer of Warranty. IF YOU ARE LOCATED IN THE U.S., THE SERVICES ARE PROVIDED ON AN “AS‑IS” BASIS. YOUR USE OF THE SERVICES AND ANY OTHER SERVICES THAT BAUER MAY HAPPEN TO PROVIDE DURING THE SUBSCRIPTION TERM IS AT YOUR OWN RISK.  BAUER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY SOFTWARE PROVIDED THROUGH THE SERVICES IS LICENSED AND NOT SOLD.  

  

14.    Availability.  Bauer will endeavour to make the Services accessible via the internet. However, as with other online services, accessibility also depends on third parties, such as, without limitation, subcontractors for hosting of the Services and technical framework conditions on which Bauer may have no influence. Therefore, the Services may temporarily be unavailable or may only be available with limited functionality due to, for example and without limitation, maintenance work and Bauer does not guarantee the uninterrupted availability of the Services. However, Bauer will try to reach an availability level of 97.5% of Services subject to payment.

15.     Indemnity. You agree to defend, indemnify and hold harmless Bauer, its officers, directors, shareholders, employees, affiliates, agents and subcontractors, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including attorneys’ fees) arising from: (1) your violation of any term of these T&C and the use of the Services which is not in compliance with the terms of these T&C; (2) your violation of any third party right, including any copyright, access rights, property, or privacy right, resulting from your use of the Services, including, without limitation, using the Services for your benefit; and/or (3) any other type of claim that your use of the Services caused damage to a third party.

16.   Assignment. Bauer may assign its rights and/or obligations hereunder and/or transfer ownership rights and title in the Services to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Bauer. Any attempted or actual assignment thereof without Bauer’s prior explicit and written consent will be null and void. In any event, an assignment or transfer pursuant to this section will not in itself grant either Bauer or you the right to cancel any of the Services or third party services then in effect.

17.   Subcontracting. Bauer may engage subcontractors. Any engagement of subcontractors will not affect Bauer’s obligations under these T&C.

18.   Enforcement. Failure by either party to enforce any of the provisions of these T&C will not be construed as a waiver of such provisions. If any of the provisions of these T&C are held unlawful or otherwise ineffective by any court of competent jurisdiction, the remainder of the T&C will remain in full force and the unlawful or otherwise ineffective provision will be substituted by a new provision mutually agreed upon by the parties reflecting the intent of the provision so substituted.

19.   Applicable Law and Place of Jurisdiction. These T&C are governed by, interpreted and construed in accordance with the laws of England and Wales and you can bring legal proceedings in respect of the Services in the courts of England and Wales.

If you are located in the U.S. and have opted-out out of the Arbitration Agreement as provided in Section 21 (Dispute Resolution – Arbitration Agreement and Class Action Waiver), you can bring legal proceedings in respect of the Services in the state or federal courts located in New York, New York, U.S.A., or in the courts of England and Wales.

20.  Dispute Resolution – Arbitration Agreement and Class Action Waiver

 

If you are located in the U.S., this Section 21 (Dispute Resolution – Arbitration Agreement and Class Action Waiver) shall apply to you, notwithstanding anything to the contrary in this T&C:

You may opt-out of this Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) by emailing us at PDR@12handz.com the following information: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with us through arbitration.  Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with us, but we must receive this opt-out request within 30 days from the date that you first consent to these T&C.  Any opt-out request received after this deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

UNLESS YOU OPT-OUT OF THESE ARBITRATION PROCEDURES AS SET FORTH ABOVE AND EXCEPT AS OTHERWISE DESCRIBED HEREIN:

YOU AND BAUER EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED BELOW, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, RATHER THAN IN COURT, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

Arbitration

You and Bauer agree to arbitrate – rather than litigate in court – any and all claims or Disputes that may arise between you and Bauer, as defined below.

For the purpose of this Arbitration Agreement the term “Bauer” means Bauer and any of its parent companies or organizations, subsidiaries, affiliates, and each of their managers, owners, officers, directors, employees, or agents.  The term “Dispute” means any claim or dispute that may arise out of or in any way relates to your relationship with Bauer, including without limitation regarding your use of the Services, and these T&C, including, without limitation, any Dispute based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced.  However, in no event shall this Arbitration Agreement prevent you, in your individual capacity, from filing or joining a complaint with any federal, state, or local government agency that is authorized by law to seek relief against Bauer on your behalf.  The arbitration between you and Bauer will be binding, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof.

Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their Disputes and potential Disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such Dispute(s) decided in a lawsuit, in court, by a judge or jury trial.  This Arbitration Agreement provides that all Disputes between you and Bauer shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this Arbitration Agreement, you might otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is very limited.

The arbitrator’s authority is governed by these Terms and Conditions.  You and Bauer agree that an arbitrator must follow and be governed by this Arbitration Agreement and may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to these Terms and Conditions.  An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so and may issue injunctive or declaratory relief if that relief is required or authorized by the applicable law, but that injunctive or declaratory relief may not extend beyond you and your dealings with us, and may not include class or collective action relief.  Discovery may be limited in arbitration, and procedures are more streamlined than in court.

Notwithstanding this Arbitration Agreement, you and Bauer may bring appropriate claims against each other regarding Disputes in small claims court, if the claims fall within the small claims court’s jurisdiction, or, on an individual and not class or collective action basis, before any other federal, state, or local government agency authorized by law to hear your claims.

Any Dispute relating in any way to your use of the Services shall be submitted to confidential arbitration only in either New York, New York, U.S.A., or in the federal judicial district in which you reside, except that, to the extent you have in any manner violated or threatened to violate Bauer’s intellectual property rights, Bauer may seek injunctive or other appropriate relief in any federal or state court in New York, New York, U.S.A., and you consent to jurisdiction and venue in such courts.  Arbitration under this Arbitration Agreement shall be conducted under the rules then prevailing of the American Arbitration Association.  The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.  To the fullest extent permitted by applicable law, no arbitration under this Arbitration Agreement shall be joined to an arbitration involving any other party subject to this Arbitration Agreement, whether through class arbitration, collective action, consolidated proceedings, or otherwise.

Class Action Waiver

You and Bauer agree that all Disputes between you and Bauer will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration.  If you or we bring a claim or Dispute in small claims court, the class action waiver will apply, and neither of the parties can bring a claim on a class, representative, or consolidated basis.  Furthermore, neither you nor Bauer may participate in a class or representative action as a class member if the class action asserts claims or Disputes that would fall within the scope of this Arbitration Agreement if they were directly asserted by you or us.  Notwithstanding the foregoing, this Arbitration Agreement shall not prohibit you or Bauer from participating solely in your individual capacity in any judgment or settlement in any litigation brought by a federal, state, or local government on behalf of you or us, excluding litigation brought by any relator or party in its capacity as a private attorney general.

We both agree that this Class Action Waiver is an essential part of our Arbitration Agreement and that, if this Class Action Waiver is found to be unenforceable by any court or arbitrator, then the entire Arbitration Agreement set forth in this section will not apply to any claim or Dispute between you and us.  This Class Action Waiver may not be severed from our Arbitration Agreement.

Informal Dispute Resolution

You and Bauer agree to try to resolve Disputes informally before resorting to arbitration.  If the Dispute cannot be resolved by telephone, you agree to notify us of the Dispute by sending a written description of your claim to Bauer at PDR@12handz.com, so that we can attempt to resolve it with you.  If we do not satisfactorily resolve your Dispute within thirty (30) calendar days of receiving notice of it, then you may pursue the Dispute in arbitration.  Neither you nor we may initiate arbitration without first providing the other notice of the Dispute and following the Informal Dispute Resolution procedure provided in this paragraph.

Arbitration Procedures

If the Dispute is not resolved by the Informal Dispute Resolution procedure described above, then either you or Bauer may initiate arbitration proceedings.  You and Bauer agree that your purchase of the Services affects interstate commerce and that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., applies.  All arbitrations shall be conducted by the American Arbitration Association (“AAA”), and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative, class, or consolidated arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.

The AAA’s rules are available on its website at www.adr.org or by calling 1-800-778-7879.  If the Dispute asserted in arbitration is for less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply.  If the Dispute asserted is for $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  If there is a conflict between the AAA’s rules and this Arbitration Agreement, this Arbitration Agreement shall control.  To initiate arbitration, you must send a letter requesting arbitration and describing your Dispute and any claims for relief to Bauer at PDR@12handz.com.  You must also comply with the AAA’s rules regarding initiation of arbitration.  We will pay all filing fees and costs for commencement of an arbitration, but you will be responsible for your own attorneys’ fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Arbitration Agreement or applicable law.  We will not seek to recover our fees and costs from you in the arbitration unless your claim has been determined to be frivolous.  If you are successful in the arbitration, we will pay your reasonable attorney’s fees and costs.  If you obtain an award from the arbitrator greater than our last written settlement offer, we will pay you $5,000 in addition to what you have been awarded in the arbitration.  The arbitration hearing will be held at the location in which the arbitration is submitted (i.e. either New York, New York, U.S.A., or the federal judicial district within which you reside) or in an alternative location but only upon mutual agreement.  If you seek less than $10,000, then you may choose to hold the arbitration in person, via phone, or to have it decided based on written submissions.

Arbitration Award

The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, except as limited by other provisions of these T&C, and will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding.  The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA or applicable state law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Severability

If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.

21.   Changes. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these T&C at any time. If we do this, you will receive the amended T&C via email and/or we will post changes to these T&C on the Website and/or app before the new T&C come into effect.  You will be asked to agree to the amended T&C when you next sign into your Account or otherwise access or use the Services. If you do not agree to abide by the amended T&C, please do not use or access the Services. If you are located outside of the U.S., in the event you do not object to the new T&C within two weeks after receiving the email and/or notification, the new terms will be deemed accepted. In the event that you object the new T&C, we may terminate the agreement with you based on the T&C.

22. Contact. Please contact us at “customer@12handz.com” with any questions regarding these T&C.

 

 

 

ADDENDUM

Data Processing Agreement

This Data Processing Agreement (“DPA“) is made between the person or entity that has accepted the terms of this DPA (“Customer” or “You“) and Bauer SME Services GmbH, Burchardstraße 11, 20095 Hamburg, Germany (“Bauer“).  This DPA shall be effective as of the Effective Date.

Introduction

(A)         Customer is the Controller of Personal Data relating to Customer Data Subjects.

(B)      Customer has appointed Bauer to provide certain Services pursuant to the 12handz T&C. In the course of providing such Services, Bauer will process certain Personal Data relating to Customer Data Subjects on behalf of Customer.

(C)       Customer and Bauer have therefore entered this DPA to ensure protection for Customer Data Subjects’ Personal Data, and that Bauer process such Personal Data in a manner that is compliant with Applicable Data Protection Law, when Bauer provide such Services.

It is agreed:

1.                Definitions

1.1.                    In this DPA, the following terms shall have the following meanings:

Applicable Data Protection Law

means all applicable worldwide privacy and data protection laws that may apply to the processing in question, including: (i) the General Data Protection Regulation (EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data) (the “GDPR“); (ii) the EU e-Privacy Directive (EU Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector); (iii) once European Union law ceases to apply to the United Kingdom, the GDPR as it applies to the UK by virtue of the UK’s  European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018; and (iv) any and all applicable national, state or secondary data protection laws made under or pursuant to (i) to (v); in each case as may be amended, consolidated or superseded from time to time.

 

Data

 

has the meaning given in Clause 2.2.

Controller“, “Data Subjects“, “Personal data“, “Processing” (and “Process” and “Processes“) and “Processor

 

shall each have the meanings given in the GDPR.

 

Customer Data Subjects

means Data Subjects in the European Economic Area and/or United Kingdom who visit or use Customer’s websites, applications or other products and services.

 

Effective Date

means the date on which the 12handz T&C come into effect in accordance with its terms.

 

12handz T&C

means the services agreement between Bauer and Customer pursuant to which Bauer will provide Services involving the processing of Personal Data about Customer Data Subjects.

 

Non-Adequate Country

means a country which is not:

 

(a)        a member state of the European Economic Area;

 

(b)     declared adequate by the European Commission to receive transfers of Personal Data from the European Union;

 

(c)       the United Kingdom (until such time as the United Kingdom ceases to be subject to European Union law); or

 

(d)     once the United Kingdom ceases to be subject to European Union law and in respect of transfers from the United Kingdom only, declared adequate by the competent United Kingdom authority to receive transfers of Personal Data from the United Kingdom.

 

Permitted Purpose

 

has the meaning given in Clause 3.1.

Services

means the comprehensive set of fully integrated tools to manage clients, staff, online presence, digital-marketing, booking, scheduling, and payments as well as support for growing the Customer’s business provided by Bauer to Customer as more particularly described in the 12handz T&C.

 

Standard Contractual Clauses

 

means the standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Counsel, as set out in European Commission Decision 2010/87 (as may be amended or superseded from time to time).

 

2.               Relationship of the parties

2.1.           Customer (the Controller) appoints Bauer as its Processor to process certain Personal Data relating to Customer Data Subjects (the “Data“) for the purpose of performing the Services (or as otherwise agreed in writing by the parties) (the “Permitted Purpose“).  The Data that Bauer shall process for this purpose, and the processing operations Bauer shall perform, are set out in Annex A to this DPA.  Each party to this DPA shall comply with its obligations under Applicable Data Protection Law in respect of such processing at all times.

3.               Data processing

3.1.            Acting on instructions:  Bauer shall only process the Data in accordance with the Permitted Purpose, except where otherwise required by Applicable Data Protection Law applicable to Bauer in which case Bauer must inform Customer of such legal requirement before processing the Data. Bauer shall promptly inform Customer if it becomes aware that Customer’s processing instructions infringe any Applicable Data Protection Law (but without obligation to actively monitor Customer’s compliance with Applicable Data Protection Law).

3.2.           Data transfers from the EEA and UK:  If Bauer wishes to process the Data in, or transfer the Data to, any Non-Adequate Country then the Standard Contractual Clauses shall be incorporated and apply as between Bauer and Customer in respect of such transfer and processing and interpreted on the basis set out below:

(a)     the Data Exporter means Customer;

(b)     the Data Importer means Bauer;

(c)     Appendix 1 to the Standard Contractual Clauses shall refer to Annex A of this DPA; and

(d)     Appendix 2 to the Standard Contractual Clauses shall refer to Annex B of this DPA.

Bauer must further take all supplementary measures as are necessary to ensure the Data remains protected to a standard that is essentially equivalent with Applicable Data Protection Law and, in the event of an onward transfer to a third party subprocessor, comply with Clause 11 of the Standard Contractual Clauses.

3.3.           Confidentiality of processing:  Bauer shall ensure that any person it authorises to process the Data (including Bauer staff, agents and subcontractors) (an “Authorised Person“) shall be subject to a duty of confidentiality (whether a contractual duty or a statutory duty), and Bauer shall not permit any person to process the Data who is not under such a duty of confidentiality.

3.4.       Security:  Bauer shall implement appropriate technical and organisational measures to protect the Data from a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the Data (a “Security Incident“). Such measures shall include, as appropriate:

(a)                    the pseudonymisation and encryption of Personal Data;

(b)                   the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c)                    the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;

(d)                   a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

Such measures shall include the measures identified in Annex B.

3.5.            Subprocessing:  Customer gives Bauer a general authorisation to engage third party subprocessors to process the Data provided that: (i) Bauer provides at least 14 days’ prior notice of the addition or removal of any subprocessor (including details of the processing it performs or will perform and the location of the processing), which may be given by posting details of such addition or removal at the following URL: https://12handz.com/terms-and-conditions/subprocessors ; (ii) Bauer imposes data protection terms on any subprocessor it appoints that protects the Data to the standard required by Applicable Data Protection Law; and (iii) Bauer remains liable for any breach of this DPA that is caused by an act, error or omission of its subprocessor.  A list of approved subprocessors as at the Effective Date is attached at Annex C, and Bauer shall maintain and provide updated copies of this list to Customer when Bauer add or remove subprocessors in accordance with this Clause. Customer may object to Bauer’s appointment or replacement of a third party subprocessor prior to its appointment or replacement, provided such objection is based on reasonable on grounds relating to the protection of the Data. In such event, Bauer will either not appoint or replace the subprocessor or, if this is not possible, then Customer may elect to suspend or terminate this DPA and the 12handz T&C without penalty but without prejudice to any fees incurred by Bauer prior to the suspension or termination.

3.6.       Cooperation and data subjects’ rights:  Bauer shall provide reasonable and timely assistance (including by appropriate technical and organisational measures, insofar as this is possible) to Customer (at Customer’s expense) to enable Customer to respond to: (i) any request from a Customer Data Subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure, data portability, and restriction as applicable); and (ii) any other correspondence, enquiry or complaint received from a Customer Data Subject, regulator or other third party in connection with the processing of the Data.   In the event that any such request, correspondence, enquiry or complaint is made directly to Bauer, Bauer shall promptly inform Customer providing full details of the same and shall not respond to the request, correspondence or enquiry other than to acknowledge receipt or as may be required by Applicable Data Protection Law.

3.7.       Data Protection Impact Assessment:  Bauer shall provide Customer with reasonable cooperation (at Customer’s expense) to enable Customer to conduct any data protection impact assessment that may be required under Applicable Data Protection Law.

3.8.             Security incidents:  Upon becoming aware of a Security Incident, Bauer shall inform Customer without undue delay and shall provide all such reasonable and timely information and cooperation to that Customer can fulfil any data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law.  Bauer shall further take any such measures and actions as are reasonably necessary to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all material developments in connection with the Security Incident. 

3.9.       Deletion or return of Data:  Upon termination or expiry of this DPA, Bauer shall destroy all Data (including all copies of the Data) in Bauer’s possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Bauer are required by any EU (or any EU Member State) law to retain some or all of the Data, or to Data it has archived on back-up systems, in which event Bauer shall isolate and protect the Data from any further processing except to the extent required by such law until deletion is possible.

3.10.       Audit: Bauer shall permit Customer (or its appointed third party auditors) to audit Bauer’s compliance with this DPA, and shall make available to Customer all information, systems and staff necessary for Customer (or its third party auditors) to conduct such audit. Bauer acknowledge that Customer (or its third party auditors) may enter Bauer’s premises for the purposes of conducting this audit, provided that Customer gives Bauer reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Bauer’s operations. Customer will not exercise its audit rights more than once in any twelve (12) calendar month period, except (i) if and when required by instruction of a competent data protection authority; or (ii) Customer believes a further audit is necessary due to a Security Incident suffered by Bauer].

4.               Miscellaneous provisions

4.1.           Termination: This DPA shall terminate automatically upon termination or expiry of the 12handz T&C.

4.2.           LiabilityThe exclusions and liability clauses set out in the 12handz T&C apply on a mutatis mutandis basis to this DPA.

4.3.           Amendments:  No amendment to this DPA shall be valid unless it is agreed to and executed in writing by both parties to this DPA.

4.4.        Conflicts:  In the event there is any conflict between the provisions of the Standard Contractual Clauses, this DPA (including its Annexes), then the following order of precedence shall apply to the extent of that conflict: (i) the Standard Contractual Clauses, (ii) this DPA, and (iii) the 12handz T&C.

4.5.     Governing law and jurisdiction:  This DPA shall be subject to English Law and the courts of England and Wales shall have exclusive jurisdiction to hear any dispute or other matter arising out of or in connection with this DPA.

 

 

Annex A

Data Processing Description

This Annex A forms part of the Agreement and describes the processing that the Processor will perform on behalf of the Controller.

Controller / Data Exporter

The Controller is Customer

Processor / Data Importer

The Processor is Bauer

Data subjects

The Data processed concern the following categories of Data Subjects (please specify): Customer Data Subjects

Categories of data

The Data to be processed concern the following categories of Personal Data (please specify): Any Personal Data relating to Customer Data Subjects which Customer Processes in connection with its provision of its website(s), application(s), products and/or services, including:

·         Name

·         Contact details, including email address, address, telephone number

·         Details Customer Data Subject’s customer relationship with Customer (order history, contractual relationship

·         Marketing data (e.g. data on product or contract interests)

·         Customer history, (e.g. previous transactions)

·         Payment Data

·         Planning and control data

·         eporting data/Information (from third parties, such as credit bureaus, or from public directories)

·         Usage of the tool

Processing operations

The Personal Data will be subject to the following basic processing activities (please specify):

·         Website hosting

·         Website development /maintenance

·         Search engine optimisation

·         aggregation (anonymous)

·         use inside the tool (for operational purpose – i.e. presenting phone number in generated web site)

·         marketing optimization
 

Annex B

Minimum Security Measures

Technical and organizational data security measures

1.               Organizational Measures

1.1                     The Bauer SME Services GmbH (“Bauer“) has a data protection management system (DPMS). Furthermore, Bauer Systems KG, as the internal IT service provider of Bauer, has an Information Security Management System (ISMS). Both DPMS and ISMS are regularly checked for their effectiveness and further developed if necessary. Both management systems are coordinated with each other and take into account the necessary measures in terms of construction, personnel, organization and technology to ensure the confidentiality, availability and integrity of the company’s own data stock and the data processed on behalf of the customer in accordance with data protection regulations.

1.2                   In the case of data processing, the entire processing process from the input of the data to the actual processing and the creation of the desired result is included in a security system differentiated according to the need for protection. The respective data processing job is created, controlled and checked after processing by the person responsible for the process. The actual program sequences and data processing are set up by the person responsible for the process in accordance with the agreed procedure and are usually controlled by machine. This excludes possible sources of error or unauthorized access.

1.3                   All employees of Bauer are informed about data protection requirements and general IT security measures and are obliged to maintain confidentiality and to comply with data protection.

1.4                   An expert data protection officer (DPO) has been appointed to check compliance with the statutory and company data protection regulations and the DPMS. He will be involved in the projects if there are fundamental requirements for ensuring data protection and data security. The DPO’s duties also include informing and advising the responsible parties and employees, raising awareness and training employees, advising on data protection impact assessments, cooperating with the supervisory authority and acting as a contact person for those affected.

1.5                   Within the group of companies of Bauer Media Group, data protection coordinators support the DPO and ensure compliance with and implementation of the applicable regulations in their respective areas.

1.6                   The respective data protection coordinator and the DPO shall be informed about all incidents, plans, activities and regulations and, if necessary, involved in the corresponding process. In case of need or doubt about the handling of personal data, they shall be involved. In performing his or her duties, the DPO has unrestricted rights of control in all areas of Bauer.

Queries regarding the guarantee of data protection at Bauer are possible under datenschutz (at) bauermedia.com.

2.              Technical Data Security Measures

2.1            Confidentiality

Entry Control

·           Access to the data processing and communication systems is denied to unauthorized persons by the following measures:

o    Reception and video surveillance of the entrances

o    Classification into safety zones

o    Closed store operation / electronic two-factor access control in the computer center

·           Bauer’s data centers are each located in a separately partitioned, restricted access area, including fire alarm and extinguishing systems, video surveillance and flood protection.

o    A mandatory part of the employees (graded access regulations)

o    Visitors accompanied by authorized employees only

o    Selected maintenance technicians

o    Cleaning personnel, but in the server room and data center only under supervision

have access.

Access Control

The unauthorized use of data processing systems is prevented by the following measures:

o    User-related password assignment

o    Logging of password usage in the system

o    External access only via secure and encrypted VPN connections

o    Password rule: no trivial passwords, regular password changes, no written deposit of passwords (exception: emergency passwords in sealed envelopes in safes)

Control Access

Unauthorized reading, copying, modification or removal of storage media is prevented by the following measures:

o    As a rule, mobile  storage media are not used in the operative business

o    Use, change and archiving of storage backup media are monitored by the employees responsible

o    Controlled destruction of old storage media and, if necessary, required printouts by certified service providers specialized in this field

The storage media necessary for the protection of data

o    Stored in the disk archive

o    And a second set is moved to another building.

The respective jobs are recorded and controlled in a job program.

Only the data records required for the respective task are released to the EDP processing by the process owner.

The access possibilities to the data are limited by:

o    Functional user-related assignment

o    Automatic check of the User-ID (user ID, password)

o    Logging of system usage

o    Differentiated access authorization to files, data records, data fields, application programs and operating system

o    Differentiated processing options with regard to reading, writing, changing and deleting

Separation Control

The following measures ensure that data of the customers are processed separately:

o    Separation of the jobs on the software side (customer separation)

o    Separation of the production, test, development and integration areas

o    Separation of functions

2.2            Integrity

Forwarding Control

·           If storage media are handed over by the customer, they will be handed over to the data processing department by the person responsible for the process, and after processing by a certified waste disposal company they will be destroyed in accordance with data protection regulations or returned at the request of the customer.

·           Unauthorized reading, copying, modification or removal of data during transfer as well as during transport of storage media is prevented by the following measures:

o    If, in exceptional cases, storage media are handed over, they will be transported by messenger or courier service in a secure container or directly by the contractor or the customer

o    Storage media are checked for completeness and correctness

o    Receipts and delivery bills are used for external transports

o    The exchange of data is done with encrypted procedures, e.g. sftp, ftps

o    Use of firewall (packet filter and application level gateway), virtual private networks (VPN), content filter, virus protection, spam protection

o    It is prohibited to bring private storage media into the data center

o    Prohibition of unauthorized use of USB sticks and external storage media, storage of data on external storage media and unauthorized data transfer

o    The installation of non-approved software is prevented by technical measures

o    Vulnerability scanner for continuous monitoring of patch and configuration status

Input Control

·           The data is provided by the customer and sent to the process owner via secure connections (VPN, SSL, SFTP). After approval, the data is sent by the process owner to the data processing engineer responsible for the process. The release of the job, the forwarding, the processing steps and the return delivery to the process owner and the customer are automatically logged by the system.

 

3.              Availability and Resilience

Availability Control

·           The data is protected against accidental destruction or loss by:

o    Storage of the data supplied and the individual processing steps until the processing is completed

o    Daily backup of the systems

o    Use of RAID systems for data protection in the operational process

o    Existence of an operational concept

o    Uninterruptible power supply

o    Emergency power supply

o    Air conditioning of the data center

o    Early fire detection

o    Permanent monitoring and alerting by system management software

o    Maintenance contracts for hardware

o    Maintenance contracts for software

o    Documentation of the installation

4.             Procedures for Regular Review, Assessment and Evaluation

Data Protection Management and Incident Response Management

A DPMS was introduced, which is regularly checked for up-to-dateness and adapted if necessary. In the event of a data protection or data security incident, there are documented rules on how this incident is evaluated, documented and to which locations the incident is reported (Incident-Response-Management).

In addition, further measures are documented in the Information Security Management System (ISMS).

Order Control

The following measures ensure that data is only processed according to the instructions of the customer:

o    Execution of orders based on written orders

o    Execution of orders according to schedule

o    Order placement and order control by the process owner

o    Documentation of all orders

 

 

Annex C

Approved Subprocessors

Name

Processing

Territory(ies)

Privacy Policy

Appcues Inc.

Interactive online user guides

USA

https://www.appcues.com/privacy

Camilyo Online Ltd

Product Development and Development Centre, Running Product System, Sales, Payment & Accounting

Israel

https://www.camilyo.com/privacy-statement

Facebook Inc.

Advertisement

USA

https://www.facebook.com/policy.php

FullStory Inc.

Analytics and behaviour

USA

https://www.fullstory.com/legal/privacy

Google LLC

Advertisement, Web analytics and reporting

EU, USA

https://policies.google.com/privacy

Heap Inc.

Analytics

USA

https://heap.io/privacy

HubSpot Inc.

CRM, Marketing automation platform and email marketing services

USA

https://legal.hubspot.com/privacy-policy

Intercom Inc.

Online chat

USA

https://www.intercom.com/legal/privacy

 

Microsoft Azure

Hosting, processing power, data storage

EU

https://privacy.microsoft.com/de-de/privacystatement

Mono Solutions

Domain registration and maintenance

EU

https://www.monosolutions.com/privacy-policy

Vonage Ltd.

Cloud communications platform for building SMS messaging applications

EU, USA

https://www.vonage.com/legal/privacy-policy/

Snowflake Inc.

Data warehouse

EU

https://www.snowflake.com/privacy-policy/

Talend Inc.

Data connection

EU

https://www.talend.com/legal-terms/privacy/

Stripe Inc.

Payment Gateway

USA

https://stripe.com/privacy

TPS Unlimited, Inc.

Tax calculation, recording and filling

USA

https://www.taxjar.com/privacy-policy/

Twilio Inc.

Cloud communications platform for building messaging (e-mail) applications

USA

https://www.twilio.com/legal/privacy

 

 

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