These Terms and Conditions (“Agreement”) governs the use of the services (“Service” or “Services”) that are made available by Marksystem Company . These Terms and Conditions represent the whole agreement and understanding between Marksystem Company and the individual or entity who subscribes to our service (“Member”, “Members” or “you”).
PLEASE READ THIS AGREEMENT CAREFULLY.
By submitting your application and by your use of the Service, you agree to comply with all of the terms and conditions set out in this Agreement. Marksystem may terminate your account at any time, with or without notice, for conduct that is in breach of this Agreement, for conduct that Marksystem believes is harmful to its business, or for conduct where the use of the Service is harmful to any other party.
Changes to the Terms and Conditions
We reserve the right to amend the Terms and Conditions (as defined below) at any time. All amendments to the Terms and Conditions will be posted on the Website. If you do not like the changes we make, you can terminate your service. Continued use of the Website will, however, be deemed to constitute acceptance of the new Terms and Conditions. No other terms or changes to the Terms and Conditions will be binding unless agreed in writing signed by us.
2. SERVICES / REGISTRATION FOR AN ACCOUNT / SUPPORT SERVICES
THE SERVICES WE OFFER
Marksystem offers domain name registration, website hosting and email hosting services for the duration of the service term purchased from us. Services are provided on the basis of facility and equipment availability. Marksystem reserves the right not to provide one or more Services where necessary facilities or equipment are not available, or for any other reason.
Access to the web and email servers is terminated upon expiry of the Service.
Details regarding your account can be found on the profile page after you register.
REGISTRATION FOR AN ACCOUNT
Need for an Account
If you would like to place an Order through the Website, you will need to register for an account on the Website which you will be able to access through the member area part of the Website, and by which you will be able to change the details that we hold about you and administrate the Services that we provide to you. You may browse the Website without registering for an Account, but, to submit an Order, you must register for an Account.
If you have an Account
If you already have an Account, you can login to your Account to submit an Order.
If you do not have an Account
Registering for an Account
Once you register for an Account, you will be asked to input an Email and Domain name for your account. You will receive the Password through Email. The Email and Password are the means through which you access your web hosting services. You may change this password by accessing your Account and following the instructions. You must keep the password confidential and immediately notify us if there is any unauthorized use of your email address or your account or any breach of security otherwise known to you. You acknowledge that any person to whom your username or password is disclosed is authorized to act as your agent for the purposes of using (and/or transacting via) your Account.
Valid email address
You must be registered for an Account with a valid email address that you access regularly, so that, among other things, we can send administration and information emails to you. Any Account registered with another person’s email address or with a temporary email address may be closed by us without notice. We may also require you to validate your Account at registration or if we believe that you have been using an invalid email address.
We reserve the right to reject any registration for an Account and to refuse use of or access to the Website to anyone for any reason, in our absolute discretion.
We shall use our reasonable endeavors to correct any errors or omissions in the Services as soon as practicable on a 24/7 basis all year round after receiving full and clear information on them. However, since we do not guarantee that the Services will be free from faults, we shall provide email support accessed by means of a ticketing system for you to use for us to deal with any faults and also for answering queries (“Support Services”). We shall use our reasonable endeavors to respond to a request for Support Services within a reasonable time, but we cannot guarantee any particular result or outcome nor within any particular time. In particular, without limitation, we may need to obtain support in turn from a third party that assists us with the provision of the Support Services.
3. WEB HOSTING
Marksystem Company is currently offering the following hosting plans (“Current Plans”):
- Unlimited Hosting Package
Hosting plans that are not listed above (“Legacy Plans”) will no longer be offered for new applications or for plan change requests.
All Marksystem web hosting accounts will display a “Test Page” web page by default when activated. This page informs visitors that the Member has recently setup their account with Marksystem servers. The “Test Page” default index web page may be removed by the Member at any time once they have access to the web server. The “Test Page” web page may include such things as, but without limitation to, the following:
- Links to additional products and services offered by Marksystem.
All web page error requests (such as 403 errors or 404 errors) will direct traffic to a default Marksystem error page. This error page informs visitors that the web page they are looking for cannot be found, and may include such things as, but without limitation to, the following:
- Links to additional products and services offered by Marksystem.
- Links to additional products and services offered by Marksystem.
Depending on which hosting plan you choose, you may request to change the billing term of your hosting service through Member Zone. In such cases, the expiry date of your hosting service will be adjusted according to the billing term that you have requested. Any optional features for your hosting plan will be billed according to the term that you have requested.
All Marksystem web hosting services, including service trials and promotional hosting offers, and their billing terms may be probated and adjusted to expire on the last day of a month.
All service trials and promotion offers are considered to be delivered in full upon the completion of the service term stated on the trial or offer invoice found in Member Zone.
Marksystem is not obligated to provide reimbursement for any probation or service term adjustment on service trials or promotional offers.
Promotional offers, including special introductory rates, promotional rates, or any non-regular pricing, are only available to new customers and are only valid for the initial term. All hosting services will renew at the regular renewal rate.
In the absence of a cancellation request from you, your hosting service will be renewed for a successive term, at the regular renewal rate, upon expiry.
Marksystem’s email service provides customers with the capability to send and receive email via the Internet. Marksystem retains the right, at our sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our email services to other Members and to protect our computer systems.
As an owner and operator of the equipment and other resources utilized to provide services, Marksystem has the legal right to block electronic communications from other entities on the Internet.
5. USAGE POLICIES AND DEFINITIONS
- “Unlimited” Usage Policies and DefinitionsWhat “Unlimited” means
Marksystem Company does not set an arbitrary limit on the amount of resources an account can use. Subject to this Agreement, Marksystem will make every commercially reasonable effort to provide Members with the necessary storage, bandwidth, and other server resources to power their websites, provided that the Member’s use of the service complies with the terms specified in this Agreement.
What “Unlimited” DOES NOT mean
Marksystem’s offering of “unlimited” services does not allow the actions of individual Members to negatively or adversely affect the service experience of other Members. Marksystem’s shared hosting service is designed to meet the typical needs of an average small business or home business website. Our services are not intended to support the greater web hosting needs of large enterprises or to be used as an online storage warehouse to store backups, archiving of electronic files or emails, documents, log files, etc. or to be used as a media file streaming/sharing hub. Members found to be adversely affecting the performance of other Member accounts by excessively using network bandwidth, server storage, memory or CPU resources, will be flagged by Marksystem administrators and anti-abuse controls. These Members will then be asked to consider Virtual Private Server (VPS) or Dedicated Server services. Serious offenses will result in the account service suspension or termination, with or without notice.
The reselling any of the Service’s resources is strictly prohibited. Any accounts found to be reselling resources will immediately be suspended, with or without notice.
- Resource Usage
Under no circumstances are you allowed to run any daemons, servers or compile anything under your account without direct permission from Marksystem management. Shell access is meant to be used solely with basic file system usage.
– System Resources
You’re not allowed to use an excessive amount of system resources for an extended period of time. If your account is found to be utilizing a large amount of resources we will contact you and give you further information. Under extreme cases suspension may be necessary until the issue can be resolved.
– Cron Usage
You may not have cron jobs in intervals lower than 1 minutes a part.
– Account Limitations
You may use your account for personal use but not as a backup facility for automated backups or things of that nature. If you’re unsure if your intended use violates this TOS please contact us so we can clarify it for you.
– Inode Limits
All hosting plans are limited to 100,000 inodes. You may lower your inode count by deleting any files or emails that you no longer need.
– Disk Space Usage (Unlimited Plans)
Your account may not be used as a storage and/or backup space for files/archives. Regular backups of databases, websites, etc, are permitted within reason. Any account found to be using an excessive and/or unreasonable amount of disk space may be asked to reduce their usage or face suspension/termination. Marksystem reserves the right to suspend/terminate any service for resource abuse at their discretion. If you exceed the resource limits set for your hosting plan, you will be in violation of this Agreement and we may suspend your account.
6. DOMAIN NAME REGISTRATION
Marksystem offers domain name registration and renewal services in partnership with ICANN accredited registrar HEXONET GmbH . Marksystem processes registration and renewal services through these respective registrars at its discretion. Promotional offers, including special introductory rates, promotional rates, or any non-regular pricing, are only available to new customers and are only valid for the initial term. All domain names registrations will renew at the regular renewal rate.
Domain transfer services are included only for active domain names that are either registered or renewed through Marksystem at the regular rate. Members may transfer expired domain names and domain names that were purchased at a promotional rate to another domain name registrar by paying a Domain Transfer Fee. The Domain Transfer Fee is based on the domain type and is subject to any applicable taxes.
7. SERVICE FEES / PAYMENTS / INVOICES / PROVISION OF THE SERVICES
All Marksystem fees and charges are quoted and billed in EURO unless otherwise noted.
The Fees are payable yearly in advance in respect of the web services you will be receiving in the coming year, and you will pay the Fees for the first year of provision of the web services to you in advance at the time that you submit your Order.
You are able to pay the Fees by PayPal, WebMoney, Credit Card, Wire Transfer, Cash; you must have an account with the respective payment processor in order to submit an Order and you must agree to their terms and conditions in order to have such an account. We shall not be bound to supply any services to you until we have received the necessary cleared funds in full.
Marksystem uses an external payment processor system for credit card payments at this time. All members are required to maintain valid credit card information on file for the processing of any applicable service fees.
Marksystem may take any reasonable action to validate your credit card and registration information and collect all payments due. You agree to pay all attorney and collection fees arising from any efforts to collect any past due amounts from you, to the extent allowed by law.
Services provided to Members who have listed a foreign address are subject to applicable taxes in their respective country.
Service fees are due at the time of order or on the day of renewal. All fees must be paid in full.
Invoices for all Marksystem services can be found by logging into the user account.
After you have paid the Order, we will activate the Services that are the subject of your Order. We inform you of such activation through the e-mail you provided.
Billing inquiries and disputes should be brought to Marksystem’s attention within 30 days of the invoice date. Failure to do so will be deemed to be an admission that the invoice and charges are accurate. If any chargeback or charge dispute notices are received for your account, services provided to you may be immediately suspended pending investigation, and you will be subject to chargeback service charges. Where applicable, Marksystem reserves the right to put your domain name into “Registrar Hold” status and deny any transfer requests for that domain name until the chargeback or dispute issue has been resolved. Accounts will be suspended if its service renewal fees are not paid within 72 hours of the due date. Accounts suspended in this manner can be re-activated upon Marksystem of the Account Reactivation Fee (see below).
Any applications or requests for services will be declined if Marksystem cannot be successfully processed within 72 hours of the order. In-store credit and coupons issued by Marksystem are not transferable and are of no cash value.
Marksystem reserves the right to modify service fees and rates, effective upon posting on the Marksystem website or on this Agreement.
8. TERMINATION / PLAN CHANGE / REFUND POLICY
Marksystem may terminate your Service under the following circumstances (non-exclusive list):
Non-payment of fees
You are in breach of any term or condition of this Agreement
Your use of the Service disrupts Marksystem business operations or affects any other party
All Member data is removed from Marksystem servers for such terminations.
You may request account termination or hosting plan changes at any time by contacting our Customer Service team either through e-mail or service ticket. Our contact information can be found on the Support page of our website.
When submitting your cancellation request, you must provide the correct account username and e-mail for verification. Incomplete cancellation requests will be deemed invalid and will not be processed. You will be responsible for any service fees that arise from your failure to cancel your account.
Refunds will not be given for services that are billed monthly or for one-time service fees, such as web design fees, file recovery fees, domain redemption fees, etc.
Cancellation within 30 days: You may cancel any of the Services at any time within 30 days of having received the Order Acceptance. Such a right will not apply to: domain name registrations or SSL Certificates.
To effect a cancellation in accordance with this Clause 17.3, you should contact us within 30 days of having paid the order on email@example.com.
You are eligible for a refund on hosting services that are billed yearly under the following circumstances:
- If you cancel your account within 30 days of sign-up, you will, upon request, receive a full refund on the hosting fees paid, less any one-time service fees. The refund will be issued through the same payment method used when you paid the invoice.
- The refund will be issued after 30 days since the refund request has been made.
- If your hosting plan includes a free domain name, you will be required to pay a Domain Reimbursement Fee to reimburse us for the domain name registration when you do any of the following before your hosting plan subscription expires:
- You cancel your hosting plan subscription.
- You change to a hosting plan or term that does not offer a free domain name.
- You transfer the domain name to another domain registrar.
The amount of this fee will vary depending on the domain type and on the registration term.
Only one refund may be issued for each invoice. Marksystem reserves the right to grant or deny any refund requests.
Domain name registrations, regardless if it is an initial registration or a renewal of an existing registration, cannot be cancelled and will remain in effect until the end of the registration term.
Please note that the free SSL Certificates are issued through Let’s Encrypt Open Certificate Authority and cPanel Corporation and the SSL Certificate will remain issued for the duration of the term.
Any service suspension for abuse or the breaking of this terms of service forfeits the refund policy for all the services in the account, including the unused account credit.
9. MEMBER RESPONSIBILITY
When you apply to use Marksystem services, you will be asked to input an Email and domain name. You will receive the Password through Email. The Email and Password are the means through which you access your web hosting services. You acknowledge and agree that it is your responsibility to safeguard the Email and Password you select from any unauthorized use. IN NO EVENT WILL MARKSYSTEM COMPANY BE LIABLE FOR THE UNAUTHORIZED USE OR MISUSE OF YOUR EMAIL OR PASSWORD.
Members are responsible for maintaining accurate account information at all times. This information can be updated when logged into the account.
10. PROHIBITED CONDUCT
Marksystem does not allow the use of unsolicited commercial email (“Spam”) to promote products or services. Any Member engaging in the sending of Spam through our network or promoting information on websites hosted by us will be considered in breach of this Agreement and will be suspended from the Service immediately.
Your use of the Service must be in compliance with Republic of Ireland laws, and the laws of your country at all times.
You are responsible for ensuring that your use of the Service does not consume excessive system or network resources that disrupts the normal use of the Service through, but not limited to, spawning multiple processes, or consuming excessive amounts of memory, CPU or bandwidth capacity.
The following is a non-exclusive list of content and behavior prohibited by the Service:
- Content that contains or contains links to: nudity, pornography, adult content, materials with sex or foul language.
- Content that condones, promotes, contains, or links to warez, cracks, hacks, their associated utilities, or other piracy related information, whether for educational purposes or not.
- Content that has been promoted through the sending of Spam or mail fraud schemes, or pages that promote or condone the sending of Spam. The sending of bulk email originating from our servers mass distributed to unknown recipients soliciting products or services, or of bulk email NOT originating from our servers mass distributed to unknown recipients soliciting products or services relating to a Marksystem account will result in immediate account suspension.
- Content that is grossly offensive to the community, including blatant expressions for bigotry, prejudice, racism, hatred or excessive profanity, or to post any obscene, filthy, excessively violent, harassing, or otherwise objectionable material.
- Content or otherwise that exploits children under 18 years of age.
- Content that sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
- Content that infringes or violates any copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property right of any third party.
- Content that promotes mail fraud, multi-level marketing (pyramid) schemes or other illegal or fraudulent activities.
- Content that posts or discloses any personally identifying information or private information about any third parties without their express consent.
- Reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any Marksystem service, solution or technology.
- Reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of individual passwording of Member Sites (or pages contained therein).
- The listing of a hosted domain in any malware blocklist, phishing blocklist, deceptive sites list (ex: google deceptive sites) etc. shall lead to the suspension of all the customer’s services.
- Sending more than 25 e-mails per hour or more than 500 e-mails per day shall be considered SPAM and the respective service shall be terminated.
You agree that, unless other instructions are posted on Marksystem’s website, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or ticket system to each of the parties in accordance with the most current contact information you have provided to us, and the contact information posted on Marksystem.ie website. All notices shall be effective upon receipt.
Email newsletters will only be sent directly by Marksystem. Member information will not be disclosed or sold to any third parties. You may also be contacted by Marksystem’s designated customer review software provider for customer experience and service feedback.
13. RESERVATION OF RIGHTS
Marksystem reserves the right and sole discretion to:
- Censor any website hosted on its servers that is deemed inappropriate.
- Review any account for excessive space or bandwidth utilization and to suspend service to those accounts that have exceeded allowed levels.
- Terminate any account for non-payment of fees, for providing fraudulent account information or fraudulent payment information.
- Terminate any account if the contents of its website results in, or are the subject of, legal action or threatened legal action against Marksystem or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
- Terminate any account for unsolicited, commercial e-mailing (i.e., Spam), illegal access to other computers or networks (i.e., hacking), distribution of Internet viruses or similar destructive activities, activities whether lawful or unlawful that Marksystem determines to be harmful to its other customers, operations or reputation, or for any breach of this agreement.
- Suspend the Service at any time for any duration of time when necessary, without penalty or liability to ourselves. You agree that it may be necessary for us to temporarily suspend the Service for technical reasons or to maintain network equipment or facilities.
14. LIMITATION OF LIABILITY
The Service is provided on an “as is” and “as available” basis and the use of the Service is at your own risk. Marksystem makes no representations or warranties, either expressed or implied, with respect to the Service, or any service or information provided through the Service. Marksystem is not responsible for any damages, injury or economic loss arising from the use of the content or Service provided by Marksystem.
In no event will Marksystem be liable to you for any direct, indirect, incidental or consequential damages or economic loss arising out of the Service or in connection with your website or any other services or products provided to you.
Marksystem, its officers, directors, owners, agents and employees shall in no way be liable to you or anyone else for any loss or injury resulting from the use of the Service or of your website.
In no event shall Marksystem be held liable for any damages or economic loss, whatsoever, as a result of notifying any official of potentially illegal content on your website, or for providing copies of your data files to the appropriate authorities or cooperating with law enforcement efforts to locate persons who have posted content that is illegal or promotes illegal conduct.
You agree to indemnify and hold Marksystem harmless from and against, and to reimburse Marksystem with respect to, any and all losses, damages, liabilities, claims, judgments, settlements, fines, costs and expenses (including reasonable related expenses, legal fees, costs of investigation) of every nature whatsoever incurred by Marksystem by reason of or arising out of or in connection with:
- Any breach of this Agreement by you.
- Any infringement of any copyright, trademark, patent, trade secret or any other intellectual propriety right of any party by content on your website.
- Illegal, pornographic, or discriminatory content on your website.
16. FORCE MAJEURE
Marksystem will not be liable for any delay, interruption or failure in the provisioning of services if caused by acts of nature, declared or undeclared war, fire, flood, storm, slide, earthquake, power failure, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labor disputes, or other similar events beyond our control that may prevent or delay service provisioning.
17. UNENFORCEABLE PROVISIONS
If any part of this Agreement is found to be invalid or unenforceable under applicable law, such part will be ineffective to the extent of such invalid or unenforceable part only, without affecting the remaining parts of this Agreement in any way.
18. GOVERNING LAW
The rights and obligations of the parties pursuant to this Agreement are governed by, and shall be construed in accordance with, the laws of the Republic of Ireland.
You may be subject to other local, provincial or state and national laws. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Republic of Ireland for any dispute arising under or relating to this Agreement and waive your right to institute legal proceedings in any other jurisdiction. We shall be entitled to institute legal proceedings in connection with any matter arising under this Agreement in any jurisdiction where you reside, do business or have assets.
19. AGE OF MAJORITY
Marksystem does not accept agreements and payments from persons under the legal age of 18 years. By submitting your account application, you confirm that you are over 18 years of age or your parent or legal guardian has agreed to accept this Agreement on your behalf.
20. ACCEPTABLE USE POLICY
Marksystem’s Acceptable Use Policy (“AUP”), which is incorporated herein by reference, is applicable to all Services. You should use all Services for lawful purposes only. You agree to maintain Your website in full compliance with the terms and conditions set forth in the AUP. By using any Services, You agree:
- not to violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
- not to transmit any unsolicited commercial or bulk email, not to be engaged in any activity known or considered to be spamming or Mail Bombing.
- not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum.
- not to make, attempt or allow any unauthorized access to Marksystem website, servers, your own hosting account or the account of any other customers of Marksystem.
- not to allow any remote code execution of malicious software through the hosting account provided by Marksystem.
- not to cause denial of service attacks, port scans or other endangering and invasive procedures against Marksystem servers and facilities or the servers and facilities of other network hosts or Internet users.
- not to forge the signature or other identifying mark or code of any other person or engage in any activity to attempt to deceive other persons regarding the true identity of the User.
- not to use Marksystem services to host any website, other content, links or advertisements of websites that: infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information; contain nudity, pornography or other content deemed adult related; profess hatred for particular social, ethnic, religious or other group; contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or a person’s property; contain warez; contain any kind of proxy server or other traffic relaying programs; promote money making schemes, multi-level marketing or similar activities; contain lottery, gambling, casino; contain torrent trackers, torrent Portals or similar software; violent or encouraging violence.
- not to upload unacceptable material which include: IRC bots, warez, image, file storage, mirror, or banner-ad services, top sites, streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, investment sites (FOREX, E-Gold Exchange, etc), bitcoin miners, sale of any controlled substances without providing proof of appropriate permit(s) in advance, Auto Surf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts.
- not to engage in or to instigate actions that cause harm to Marksystem or other customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Our IP’s by the any online spam database, actions resulting in DDoS attacks for any servers, etc. Marksystem reserves the right to refuse service to anyone upon Our discretion.
Any material that in Marksystem judgment, is either obscene or threatening is strictly prohibited and will be removed from Marksystem servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund. You agree that We have the sole right to decide what constitutes a violation of the acceptable policy use described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of Our AUP is found, Marksystem will take corrective action upon our own discretion and will notify You. Marksystem decision in such case is binding and final, and cannot be a subject of a further change. Marksystem cannot and shall not be liable for any loss or damage arising from Our measures against actions causing harm to Marksystem or any other third party. We have the right to terminate each and any hosting account that has been suspended for any reason for more than 14 calendar days after the suspension date, unless You has taken corrective measures to remove the initial suspension threat or violation. Any backup copies of the hosting account will be permanently deleted upon termination and no refund will be due. Marksystem will not be liable for any loss or damages in such cases.
At its discretion, Marksystem can remove any content we determine to be prohibited by this agreement or our Terms and Conditions. No backups will be kept of removed content.
21. TERMS AND CONDITION ADDENDUM – GDPR
This Addendum is an amendment to the Terms and Conditions between Marksystem and you our customer (“Controller”) and any other contracts entered into between the parties. To the extent this Addendum is not consistent with any terms and conditions of any other contract the terms of this Addendum shall prevail.
The new European General Data Protection Regulation (EU) 2016/679 (GDPR) comes into force on 25th May 2018. In order to comply with its legal and regulatory obligations, Marksystem has updated terms and conditions to comply with the GDPR as set out in this Addendum.
- For the purposes of this Addendum the following defined terms shall have the following meanings: GDPR shall mean the General Data Protection Regulation (EU) 2016/679 and “personal data”, “controller”, “processor”, “data subject”, and “processing” shall have the meaning set out in the GDPR.
- Each party shall comply at all times with GDPR and shall not perform its obligations under these terms and conditions in such a way as to cause the other to breach any of its applicable obligations under GDPR.
- In the context of these terms and conditions, Marksystem will act as “processor” to the Controller who may act as either “processor” or “controller” with respect to the personal data. Notwithstanding the foregoing, the parties acknowledge that:
- Where Marksystem only provides colocation services under these terms and conditions Marksystem will not be a Processor; and
- Where personal data is not accessible to Marksystem it shall not be a Processor, and therefore, in either case, the obligations of clause 7 shall not apply to Marksystem.
- The Controller represents and warrants to Marksystem that with respect to any personal data processed pursuant to this Agreement:
- All personal data is necessary for the purpose for which it is processed, accurate and up-to-date and the Controller shall at all times comply with Marksystem’s acceptable usage policy;
- The Controller has implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk to the personal data;
- The Controller has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Marksystem and the Controller covenants that it shall notify Marksystem in writing if there are any material changes to these consents or to the personal data that Marksystem processes under these terms and conditions; and
- It is not aware of any circumstances likely to, and will not instruct Marksystem to process the personal data in a manner that is likely to, give rise to a breach of the GDPR.
- The Controller acknowledges and agrees that pursuant to its obligation under the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Marksystem’s applicable technical and organizational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to these terms and conditions.
- The Controller acknowledges and agrees that it is responsible for ensuring the compliance of any of its businesses, affiliates or subsidiaries located in a territory outside the EU/EEA with the GDPR in relation to transfers of personal data from Marksystem to Controller.
- Where Marksystem processes personal data on behalf of a Controller, with respect to such processing, Marksystem shall:
- Process the personal data only in accordance with the terms and conditions, as amended by this Addendum, and the documented instructions of the Controller given from time to time. The Controller acknowledges that Marksystem is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of these terms and conditions, as amended by this Addendum, require prior written approval between Marksystem and the Controller including agreement on any fees payable by Controller to Marksystem for carrying out such instructions;
- Only permit the personal data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Marksystem’s instructions in relation to the processing;
- Protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorized or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected and the Controller shall notify Marksystem immediately if the nature of such personal data changes in a material way;
- Remain entitled to appoint third party sub-processors. Where Marksystem appoints a third party sub-processor, it shall, with respect to GDPR obligations:
- ensure that the third party is subject to, and contractually bound by, at least the same obligations as Marksystem; and
- remain fully liable to Controller for all acts and omissions of the third party, and all sub-processors engaged by Marksystem as at the effective date of this Addendum shall be deemed authorized;
- In addition to the sub-processors engaged pursuant to paragraph 7.4 above, be entitled to engage additional or replacement sub-processors, subject to:
- the provisions of paragraph above, being applied; and
- Marksystem notifying the Controller of the additional or replacement sub-processor, and where Controller objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
- Notify the Controller without undue delay after becoming aware that it has suffered a personal data breach;
- At the Controller’s cost and not more than once in any 12 month period permit the Controller, subject to reasonable and appropriate confidentiality undertakings, to inspect and audit (during business hours and on reasonable notice) Marksystem’s data processing activities to enable the Controller to verify and/or procure that Marksystem is complying with its obligations under clause 2 above. The Controller shall ensure that it adheres to any applicable Marksystem site and security policies in the performance of such audit or inspection;
- On the Controller’s reasonable request and at the Controller’s cost, assist the Controller to respond to requests from data subjects who are exercising their rights under the GDPR insofar as it is reasonable for Marksystem to do so;
- Save where such countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of the GDPR, not process personal data outside the EU/EEA without the prior written consent of the Controller and, where the Controller consents to such transfer, to comply with any reasonable instructions notified to Marksystem by it. Notwithstanding the foregoing, Marksystem is expressly permitted to and instructed by the Controller that it may transfer personal data to any Marksystem subsidiary and any Marksystem subcontractor, subject to first ensuring that adequate protections are in place to protect the personal data consistent with the GDPR;
- On the Controller’s reasonable request and at the Controller’s cost, assist, insofar as it is reasonable to do so, taking into account the nature of the information available to Marksystem and any restrictions on disclosing the information, such as confidentiality, the Controller to comply with the Controller’s obligations pursuant to GDPR, comprising, if applicable:
- (i) notifying a supervisory authority that the Controller has suffered a personal data breach;
- (ii) communicating a personal data breach to an affected individual;
- (iii) carrying out an impact assessment; and
- (iv) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and
- Unless applicable law requires otherwise, upon termination of the contract delete or return all personal data provided by the Controller to Marksystem, except to the extent this is not reasonably technically possible or prohibited by law or legislation.
- The Controller shall indemnify and hold harmless on demand Marksystem for any loss, damage, liabilities, penalties, expenses or fines incurred, whether foreseeable or unforeseeable or direct or indirect, (“losses”) as a result of:
- The Controller breaching its obligations under clause 1 (Data Processing);
- Any unsuccessful claim by a data subject when such claim holds both Controller and Marksystem as jointly and severally liable under the GDPR.
- Where under GDPR Marksystem and the Controller incur joint and several liability, as Controller and Processor with any other person, and, as such, Marksystem incurs losses, other than for damage caused by processing where it has not complied with obligations under GDPR specifically directed to Processors or where it has acted outside or contrary to the Controller’s lawful instructions under these terms and conditions, the Controller shall indemnify Marksystem on demand against all such losses, save for such liability as corresponds directly to Marksystem’s part of the responsibility for the damage caused by Marksystem’s breach of the obligations of GDPR or under these terms and conditions.
Limitation of Liability
- Neither party excludes or limits liability to the other party for any matter for which it would be unlawful for the parties to exclude liability.
- Subject to Clause 1 above, with respect to any claim relating to a breach of the GDPR or a breach of this Addendum, Marksystem shall not in any circumstances be liable to the Controller whether in contract, tort, including for negligence and breach of statutory duty howsoever arising, misrepresentation, whether innocent or negligent, restitution or otherwise, for:
- Any loss, whether direct or indirect, of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and
- Any loss or corruption, whether direct or indirect, of personal data or information;
- Subject to Clause 1 above, Marksystem’s total aggregate liability to the Controller in contract, tort, including negligence and breach of statutory duty howsoever arising, misrepresentation, whether innocent or negligent, restitution or otherwise, arising in connection with a breach of GDPR or a breach of this Addendum or any collateral contract shall in all circumstances be limited to the greater of:
- The Charges paid or payable by the Controller to Marksystem under the relevant contract in the Initial Term; or
- The total Charges paid or payable by the Controller to Marksystem under the relevant contract in the contract year concerned.
Governing Law and Jurisdiction
This Addendum and any dispute or claim arising out of or in connection with it, or its subject matter or formation, including non-contractual disputes or claims, shall be governed by, and construed in accordance with, Irish law. The parties agree that the courts of Ireland will have exclusive jurisdiction to settle any dispute, whether contractual or non-contractual, arising from or in connection with the Addendum.
Marksystem reserves the right to change these terms and conditions without notice. In order to avoid doubt, such terms and conditions are referenced at the checkout and on all invoices. By confirming acceptance at the checkout or payment of invoices the Applicants and/or existing Clients confirms their ongoing acceptance of the terms and conditions. It is the Applicant’s and/or Client’s responsibility to check these terms and conditions before accepting them.
No waiver of any of the provisions of this Agreement will be deemed to constitute a waiver of any other provision nor shall such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound thereby.
23. ENTIRE AGREEMENT
This Agreement, as may be updated from time to time and posted on Marksystem Website, represents the complete agreement and understanding between us with respect to the Service and supersedes any other written or oral agreement.