Preamble

This New/Mode Software Services Agreement (together with any Order Forms, attachments, exhibits, and/or addendums hereto, as amended from time to time, collectively the “Agreement”) form an agreement between the customer (“Customer”) accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services (as defined below) and New Mode Consulting Inc. (“New/Mode”), the supplier of the Services, and is entered into on the earlier of the date Customer first uses any part of the Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of New/Mode and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

 

This Agreement sets forth the terms and conditions that govern the provision and use of the Services. This Agreement includes agreement to New/Mode’s:

1. Terms of Use, located at https://www.newmode.net/legal (“Terms of Use”);
2. Privacy Policy, located at https://www.newmode.net/legal (“Privacy Policy”); 
3. Acceptable Use Policy, located at https://www.newmode.net/legal. (“AUP”); and
4. any other of New/Mode’s policies published at https://www.newmode.net/legal now and in the future.

Where this Agreement conflicts with any of the above terms and policies, this Agreement takes precedence.

 

BY TAKING POSITIVE ACTION TO ACCEPT THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14.k. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO NEW/MODE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO NEW/MODE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

 

THE NEW/MODE PLATFORM SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. 

 

1. NEW/MODE PLATFORM SERVICES

1. Provisioning of the New/Mode Platform Services. Subject to Customer’s and its Permitted Users’ compliance with this Agreement, New/Mode will make the New/Mode Platform Services available to Customer and Permitted Users pursuant to this Agreement during the Term.
   
   
2. Age Requirement. Children may not access or use the New/Mode Platform Services unless their use is directly authorized by their parent, guardian or another authorized adult (such as a teacher) who agrees to be bound by this Agreement.  If parent, guardian or authorized adult approval is required by law or under this Agreement, you agree that prior to use, you have provided a copy of this Agreement to your parent, guardian or authorized adult and your parent, guardian or authorized adult understands the New/Mode Platform Services and how you will use them. For the purposes of this Agreement, a child is a person under the age of 13 (or the minimum legal age required to provide consent for processing of personal data in the country where the child is located).
   
   
3. Restrictions on Use. New/Mode is mission-driven to create a fairer, more sustainable world. In accordance with this mission, you will not, and will not permit others to:
   1. use the New/Mode Platform Services to create, collect, transmit, store, publish, use or process any Customer Data (defined in Section 15.f.) that promotes, undertakes, or incites: 
      
      1. illegal activity;
      2. the limitation of civil, democratic or minority rights;
      3. non-renewable resource extraction;
      4. low wages, precarious work or the undermining of worker rights;
      5. homophobic, transphobic, racist, sexist, classist or otherwise hateful speech;
      6. regressive taxation or the undue privatization of services;
      7. violence, warfare, or colonization; or
      8. policies that have been demonstrated to significantly reduce public health.
   2. sub-license, sell, rent, lend, lease or distribute the New/Mode Platform Services or any Intellectual Property Rights therein, or otherwise make the New/Mode Platform Services available to others other than Permitted Users;
      
      
   3. use the New/Mode Platform Services to permit timesharing, service bureau use or commercially exploit the New/Mode Platform Services;
      
      
   4. use or access the New/Mode Platform Services:
      1. in violation of any applicable law;
      2. in a manner that threatens the security or functionality of the New/Mode Platform Services;
      3. in violation of New Mode’s acceptable-use policy available at http://www.newmode.net/trust/legal; or
      4. for any purpose or in any manner not expressly permitted in these Terms;
         
         
   5. use the Services to create, collect, transmit, store, publish, use or process any data:
      1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
      2. that you do not have the lawful right to create, collect, transmit, store, use or process; 
      3. that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or
         
         
   6. Modify (as defined below) the New/Mode Platform Services;
      
      
   7. reverse engineer, decompile or disassemble the New/Mode Platform Services; 
      
      
   8. remove or obscure any proprietary notices or labels on the New/Mode Platform Services, including brand, copyright, trademark and patent or patent pending notices;
      
      
   9. access or use the New/Mode Platform Services for the purpose of building a similar or competitive product or service; 
      
      
   10. perform any vulnerability, penetration or similar testing of the Service, except for the purposes of participating in New/Mode’s Bug Bounty program, in accordance with New/Mode’s Bug Bounty Terms and Conditions; or
       
       
   11. use the Services for any purpose or in any manner not expressly permitted in this Agreement.
       
       
4. Suspension of Access; Scheduled Downtime; Modifications. New/Mode may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
   1. suspend your access to or use of the Services or any component thereof:
      1. if you violate any provision of this Agreement;
      2. for scheduled maintenance;
      3. due to a Force Majeure;
      4. to address any emergency security concerns;
      5. if required to do so by a regulatory body or as a result of a change in applicable law; or
      6. for any other reason as provided in this Agreement; and
         
         
   2. modify the Services.
      
      
   You are required to accept all patches, bug fixes and updates made by or on behalf of New/Mode to the Services.
   
   
5. Reporting and Branding. Unless otherwise provided in an Order Form, your published Campaigns may include a tool to report Campaigns that do not comply with this Agreement and a badge that states “Hosted by New/Mode” (or similar wording) that links to New/Mode’s Website. New/Mode may, at its reasonable discretion, reject or remove any Campaign that it deems inappropriate (for example, if the Campaign does not comply with New/Mode’s AUP).
   
   
6. Subcontracting. New/Mode may engage third parties to assist it in providing the Services or any part thereof. 
   
   
7. Third-Party Products. The New/Mode SaaS Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. New/Mode does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by New/Mode as “certified” or otherwise. New/Mode cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to New/Mode. New/Mode is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
   
   
8. Acceptable Use Policy. Customer shall comply with the AUP. 
   
   
9. Service Availability
   1. Notwithstanding Section 1.d., the New/Mode Platform Services shall be available 99.9%, measured monthly. If Customer requests maintenance during scheduled maintenance hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond New/Mode’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and New/Mode's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, New/Mode will credit Customer 2.5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to New/Mode) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify New/Mode in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. New/Mode will only apply a credit to the month in which the incident occurred. New/Mode’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of New/Mode to provide adequate service levels under this Agreement.
      
      
   2. New/Mode only provides that communications services (including but not limited to phone, fax, SMS and email) are processed correctly and delivered by New/Mode to the applicable network or server. New/Mode is not responsible for the final delivery of any communication initiated through New/Mode’s Platform Services, as this is out of New/Mode’s control and is the responsibility of the communications carrier.
      
      
   3. New/Mode transmits and receives text messages and voice broadcasts via major telecommunications companies and mobile network operators, and thus New/Mode’s influence over the timing of the transmission of Customer’s messages and broadcasts is within the technical constraints imposed upon New/Mode. While New/Mode shall use commercially reasonable efforts to transmit messages and broadcasts to the applicable network for final delivery to designated recipients as fast as possible, New/Mode cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of messages and broadcasts across the public switched telephone network and/or Internet. Customer should know that communications carriers assign text messages and voice broadcasts with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. New/Mode is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and Customer acknowledges that damages for financial or other loss resulting from delivery failure cannot be claimed from New/Mode for any such non-deliveries. Furthermore, Customer agrees that message and broadcast contents are deemed to have zero value.
      
      
10. Professional Services. New/Mode will use commercially reasonable efforts to perform the Professional Services set out in an applicable Order Form. 

 

2. USER ACCOUNTS

1. Upon Customer’s request, New/Mode will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for each user that Customer wishes to have access to and use of the New/Mode Platform Services (each user, and each administrator, a “Permitted User”).
   
   
2. The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the New/Mode Platform Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the New/Mode Platform Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify New/Mode of any actual or suspected unauthorized use of the New/Mode Platform Services. New/Mode reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
   
   
3. The Customer will ensure that all individual users of the New/Mode Platform Services, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of New/Mode’s rights than those set forth in this Agreement.
    

3. OWNERSHIP; RESERVATION OF RIGHTS

1. The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to New/Mode, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
   
   1. provide the Services;
   2. improve and enhance the Services and any other New/Mode offerings; and
   3. produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Content”).
      
      
2. New/Mode may use, process, store, disclose and transmit the Aggregated Content for any purpose and without restriction or obligation to you of any kind. As between you and New/Mode, all right, title, and interest in Aggregated Content, and all Intellectual Property Rights therein, belong to and are retained solely by New/Mode.
   
   
3. New/Mode or its licensors retain all ownership and Intellectual Property Rights in and to the following (collectively, “New/Mode Property”):
   1. the Services;
   2. “Recipient Data” (defined in Section 17.ac.)
   3. anything developed or delivered by or on behalf of New/Mode under these Terms;
   4. all other of New/Mode’s Confidential Information, including but not limited to, any reports generated from the New/Mode New/Mode Platform Services or any Aggregated Data; and
   5. any Modifications to the foregoing i., ii., iii., iv.
      
      
4. Customer grants to New/Mode and its affiliates a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to use and incorporate into the New/Mode Platform Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of New/Mode’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. New/Mode is not obligated to use any Feedback. Customer and Permitted User hereby waive, and agree to waive, any moral and author’s rights (including attribution and integrity) that it may have in any Feedback, even if it is altered or changed in a manner not agreeable to Customer or Permitted User.
   
   
5. All rights not expressly granted to you by New/Mode under this Agreement are reserved.
   
   

4. CAMPAIGNS

1. Campaign Content. Customer may have the ability to create and publish content related to a cause using the Service (“Campaign Content”). 
   
   
2. Featuring Campaign Content. Customer agrees that New/Mode may feature its Campaign Content at its discretion. Customer grants New/Mode a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to use any version of Customer’s Campaign Content or its Customer Data, including without limitation names, trademarks, service marks or logos on the Campaign Content, for the limited purpose of New/Mode’s marketing and promotional activities. Customer hereby waives any claims against New/Mode relating to any moral rights, artists’ rights or any other similar rights worldwide that it may have in or to the Campaign Content or names, trademarks, service marks or logos on Campaign Content and any right of inspection or approval of any such use.
   
   
3. Campaign Visitors and Supporters. Customer agrees that any visitors, campaigners, and other users of the Campaign Content are Customer’s sole responsibility. Customer is solely responsible for the use of the Campaign Content and ensuring that such use is in accordance with applicable law and does not violate the rights of any third party.
    

5. PRIVACY

Customer understands that Personal Information will be collected, used, disclosed and processed in accordance with New/Mode’s privacy policy located at https://www.newmode.net/trust/legal or such other place as may be updated by New/Mode from time to time.

6. BILLING AND PAYMENT

1. Fees. Customer will pay to New/Mode the fees described in an Order Form (“Fees”). Unless otherwise noted on an Order Form: (i) all Fees are identified in US dollars; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Service exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees pursuant to this Agreement, you will be billed for such usage and you will pay the additional fees in accordance with this Agreement. 
   
   
2. Changes to the Fees. New/Mode reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to you.
   
   
3. Billing and Invoicing. New/Mode will prepare and send to Customer, at the then-current contact information on file with New/Mode, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, all bills are due on receipt. New/Mode may require Customer to register a valid credit card, direct debit or ACH agreement for automatic billing of all Fees that are due and payable.
   
   
4. Disputed Invoices or Charges.  If Customer believes New/Mode has charged or invoiced Customer incorrectly, Customer must contact New/Mode no later than 30 days after having been charged by New/Mode or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
   
   
5. Late Payment. Customer may not withhold or set off any amounts due under this Agreement. New/Mode reserves the right to suspend Customer’s access to the Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), plus all expenses of collection, until fully paid. Without limiting New/Mode other rights, New/Mode may suspend Customer’s access to or its performance of the Service, if Customer has not paid the applicable Fees within 30 days of the date that such Fees become due.
   
   
6. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of New/Mode.
   
   
7. Suspension. Any suspension of the Service by New/Mode pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement. 
   
   

7. CAMPAIGN PURCHASES AND DONATIONS

Receiving Donations.

1. If Customer is the recipient of donations, Customer hereby agrees to adhere to best practices regarding processing credit cards, including:
   
   1. not reattempting to process cards that have been declined by an issuing bank due to lost, stolen or invalid, and not reprocessing cards that have been declined by an issuing bank due to banking server error, do not honor or insufficient funds, in each case, until the cardholder has informed you that the reason for decline has been resolved and that you have permission to reattempt to process such card; and
      
      
   2. contacting a cardholder of a declined card before reprocessing a transaction and only reprocessing a declined transaction twice within 16 calendar days from the date of the original declined transaction. In rare circumstances in which a credit card becomes blacklisted due to multiple valid failures (i.e., not for cards reported as stolen, lost, fraudulent, etc.), you will obtain cardholder permission in writing to request a card be removed from such status.
      
      
2. New/Mode shall indemnify and defend you against any third party claims to the extent arising from New/Mode’s failure to maintain compliance with PCI-DSS. This Section states the entire liability of New/Mode with respect to any such third-party claim. You shall give New/Mode prompt written notice of any such claims for indemnification and you agree to relinquish control of defending any such claim to New/Mode, including the right to settle. New/Mode’s maximum liability for these indemnification obligations is $250,000. New/Mode shall not be liable to you for the loss of any donations by donors to you. The parties agree that any such losses are indirect or consequential damages, liability for which is specifically excluded under these Terms.
   
   
3. Subject to completion of the required account registrations, New/Mode shall disburse funds to Customer, interest-free, less any refunds, chargebacks, and any applicable Fees within five (5) business days of the close of the following disbursement cycles:
   
   1. the first through the seventh of each month;
   2. the eighth through the fifteenth of each month;
   3. the sixteenth through the twenty-second of each month; and
   4. The twenty-third through the end of each month.
      
      
4. New/Mode may enable, modify or substitute fraud controls on Customer’s account and may suspend or delay disbursements in order to protect New/Mode against the risk of, among other things, existing, potential or anticipated chargebacks, fraud or your failure to fulfill responsibilities set forth in this Agreement. 
   
   

8. CONFIDENTIAL INFORMATION

1. Definitions.  For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
   
   
2. Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
   1. disclose Confidential Information of the Discloser to any person, except to:
      1. in the Customer’s case, to Customer’s employees having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; or
         
         
      2. in the case of New/Mode to New/Mode’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Service;
         
         
   2. use Confidential Information of the Discloser; or
      
      
   3. alter or remove from any Confidential Information of the Discloser any proprietary legend.
      
      
3. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
   
   
4. Exceptions to Confidentiality.  Notwithstanding Section 9.b., the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
   
   
5. Return of Confidential Information.  Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 13.d. below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, New/Mode may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
   
   

9. WARRANTY AND DISCLAIMER

1. Customer Warranty. Customer represents and warrant to and covenants with New/Mode that:
   
   1. the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable New/Mode to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to New/Mode and to or from all applicable third parties;
      
      
   2. its use of the Services is in compliance with applicable laws, including without limitation applicable export or import controls and regulations and sanctions;
      
      
   3. the Customer Content and Customer’s use of the Services complies with the AUP; and 
      
      
   4. it owns all rights to the Customer Content and has (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license your Customer Content via the Services and in the manner set forth in this Agreement.
      
      
2. GENERAL DISCLAIMER. THE LAWS OF CERTAIN JURISDICTIONS, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION, THE SCOPE AND DURATION OF SUCH WARRANTY OR CONDITION WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW. NEW/MODE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICE (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY NEW/MODE TO YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEW/MODE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, NEW/MODE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER.
   
   

10. INDEMNITIES

1. New/Mode’s Indemnity.  
   1. New/Mode will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the New/Mode Platform Services infringe any third-party Intellectual Property Right in Canada, New Zealand, United States, European Union and United Kingdom. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any New/Mode Platform Services into, or any combination, operation, or use of any New/Mode Platform Services with, any products or services not provided or authorized by New/Mode; (B) modification of any New/Mode SaaS Services other than by New/Mode or with New/Mode’s express written approval; (C) unauthorized use of the New/Mode Platform Services; or (D) Customer’s indemnity in Section 10.b. THE FOREGOING IS NEW/MODE’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
      
      
   2. If the New/Mode Platform Services are, or in New/Mode’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any New/Mode Platform Services is enjoined or threatened to be enjoined, New/Mode may, at its option and sole cost and expense:
      
      1. obtain the right for the Customer to continue to use the affected New/Mode SaaS Services materially as contemplated by this Agreement;
         
         
      2. modify or replace New/Mode Platform Services, in whole or in part, to seek to make the New/Mode SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute New/Mode SaaS Services under this Agreement; or
         
         
      3. if New/Mode determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by New/Mode and New/Mode’s sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to any New/Mode Platform Services that were to be provided after the effective date of termination.by written notice to the Customer, terminate the Services, in whole or in part, and require the Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable. 
         
         
      THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
      
      
2. Customer Indemnity.  Customer will defend, indemnify and hold harmless New/Mode, and its officers, directors, employees and agents (each, a “New/Mode Indemnitee”) from and against any and all Losses incurred by a New/Mode Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a New/Mode Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement or AUP; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with New/Mode in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of New/Mode.
   
   
3. Indemnification Procedure.  Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section c. will not relieve the Indemnitor of its indemnity obligations under this Section 10. except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
   
   

11. LIMITATION OF LIABILITIES

1. The Parties acknowledge that the following provisions have been agreed to by them and reflect a fair allocation of risk and form an essential basis of the agreement and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
   1. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF NEW/MODE IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL NEW/MODE’S THIRD-PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
      
      
   2. TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL NEW/MODE BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY:
      1. SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES;
      2. LOST OR LOSS OF: SAVINGS; PROFIT; DATA; USE, OR GOODWILL;
      3. BUSINESS INTERRUPTION
      4. COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES;
      5. PERSONAL INJURY OR DEATH; OR
      6. PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. 

12. TERM AND TERMINATION

1. Term. This Agreement will take effect on the Effective Date continue in full force and effect for the period stipulated in the Order Form (the “Initial Term”). The Term will automatically renew for successive periods equal in length to the Initial Term, unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
   
   
2. Termination by New/Mode. In addition to, and notwithstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be terminated or suspended by New/Mode at any time at New/Mode’s sole discretion. New/Mode may immediately terminate Customer’s right to use the Services or this Agreement:
   1. if New/Mode believes that Customer or any Permitted User has violated this Agreement;
   2. if New/Mode believes the use of Customer Data with the Service is not in New/Mode’s or its other users’ best interests;
   3. if New/Mode ceases to offer the Service; or
   4. as required by applicable laws.
      
      
3. Termination. Notwithstanding any other Section of this Agreement, New/Mode may, in its discretion, terminate the Agreement or any Order Form at any time by providing written notice to the Customer. New/Mode may, in addition to other relief, terminate this Agreement if Customer commits a breach of Agreements and fails to correct such breach within the time frame provided in a written notice of such breach. New/Mode may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, manager, receiver-manager, liquidator, trustee in bankruptcy or any other officer or person with similar powers is appointed in respect of Customer or over the property or assets of Customer.
   
   
4. Effect of Termination.  Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using New/Mode Platfrom Services and return any New/Mode Property in its possession and certify in writing to New/Mode that the New/Mode Property has been returned. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to New/Mode are immediately due and are to be immediately paid by Customer to New/Mode. All Order Forms will terminate upon the termination of this Agreement. No new Order Forms may be agreed to or entered into by the Parties, upon the termination of this Agreement.
   
   
5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3. (Ownership; Reservation of Rights), Section 5. (Privacy), Section 6. (Fees and Payment), Section 8. (Confidential Information), Section 9. (Warranty and Disclaimer), Section 10. (Indemnities), Section 11. (Limitation of Liabilities), Section 12. (Survival), and Section 14. (General Provisions).
   
   

13. SUPPORT SERVICES

You will generally have access to New/Mode’s technical support via email at support[at]newmode.net ("Support Services"), according to New/Mode's published Service Level Policies ("SLP"), available here. New/Mode may amend the Support Services from time to time in its sole discretion.

14. GENERAL PROVISIONS

1. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by registered or certified mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:
   1. if to New/Mode, to the following email contact or mailing address: 
      support[at]newmode.net
      ATTN: Contracts & Legal
      312 Main Street
      Vancouver, BC Canada V6A 2T2
      
      
   2. if to Customer, to the current mailing or email address that New/Mode has on file for Customer. 
   
   New/Mode may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with New/Mode current at all times during the Term.
   
   
2. Assignment.  Customer may not assign this Agreement to any third party without New/Mode’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. New/Mode may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
   
   
3. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent New/Mode from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction. 
   
   
4. Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the New/Mode SaaS Services. New/Mode makes no representation or warranty that the New/Mode SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained. 
   
   
5. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
   
   
6. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse you from your failure to pay Fees or your indemnities under this Agreement. This Section does not apply to any of your obligations under Sections 6., 8., or 10.
   
   
7. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
   
   
8. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
   
   
9. Independent Contractors. New/Mode’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
   
   
10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
    
    
11. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, NEW/MODE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING YOU PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON ITS WEBSITE. UNLESS OTHERWISE INDICATED BY NEW/MODE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO YOU OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
    
    
12. Customer Lists. New/Mode may identify Customer by name and logo as a New/Mode customer on New/Mode’s websites and on other promotional materials. 
    
    
13. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
    
    

15. DEFINITIONS

As used in this Agreement, the following capitalized words have the meaning set out below:

1. “Aggregated Content” has the meaning in Section 3.a.
2. “Agreement” has the meaning in the preamble.
3. “Amendment” has the meaning set out in Section 14.k.
4. “AUP” has the meaning set out in the preamble.
5. “Confidential Information” has the meaning set out in Section 8.a.
6. “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the New/Mode Platform Services, including but not limited to Personal Information, excluding Aggregated Data and any other New/Mode Property.
7. “User Account” has the meaning set out in Section 2.a.
8. “Discloser” has the meaning set out in Section 8.a.
9. “Feedback” has the meaning set out in Section 3.c.
10. “Fees” has the meaning set out in Section 6.a.
11. “Force Majeure” has the meaning set out in Section 14.f.
12. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
13. “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
14. “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
15. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
16. “New/Mode Platform Services” means: (i) the services through which New/Mode hosts and makes available the New/Mode Platform Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i).
17. “New/Mode Property” has the meaning set out in Section 3.b.
18. “Order Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by you.
19. “Organization Account” means the space created on behalf of a person or entity in the New/Mode Platform Services that provides access to multiple Permitted Users for the purpose of collaboration on the person or entity’s Campaigns. “Organization” means the specified person or entity.
20. “Party” has the meaning set out in the preamble.
21. “Permitted User” has the meaning set out in Section 2.b.
22. “Personal Information” means information identifiable to any person.
23. “Privacy Policy” has the meaning set out in Section 5.
24. “Professional Services” means the consulting, training and other professional services described in an Order Form. The term “Professional Services” does not include New/Mode Platform Services.
25. “Recipient” has the meaning set out in Section 8.a.
26. “Recipient Data” means any contact data used in the New/Mode Platform Services to reach the target decision-makers of a Campaign.
27. “Renewal Term” has the meaning set out in Section 12.a.
28. “Services” means the New/Mode Platform Services, the Support Services, and the Professional Services, collectively, and any part thereof.
29. “Support Services” has the meaning set out in Section 13.
30. “Term” has the meaning set out in Section 12.a.
31. “Third-Party Products” has the meaning set out in Section 1.g.
32. “Website” and “Websites” mean any websites used by New/Mode to provide the New/Mode Platform Services, including the websites located at newmode.net.

1. OVERVIEW

In consideration of the mutual obligations set out herein, the parties hereby agree that the provisions set out below shall be added as an addendum to the Agreement to govern processing by New/Mode of any Customer Data that is subject to the Data Protection Laws. Except where the context requires otherwise, references in this DPA to the Terms are to the Terms as amended by, and including, this DPA. All capitalized terms have the same meaning as set forth in the Terms. Except as modified below, the Terms shall remain in full force and effect. In the event of a conflict between this DPA and the Terms, this DPA shall control.

2. DEFINITIONS

1. "(Sub)process/(sub)processing", "data subject", "data processor, "data controller", "personal data", "data breach", "data protection impact assessment", "technical and organizational measures", "recipient" shall have the meaning ascribed to them in the Data Protection Laws.
2. "Authorized Subprocessors" means (a) those Subprocessors set out at https://www.newmode.net/trust/legal; and (b) any additional Subprocessors consented to according to the Agreement.
3. "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. 
4. "EEA" means the European Economic Area.
5. “GDPR” means EU General Data Protection Regulation 2016/679 and, to the extent applicable, the UK Data Protection Act 2018.
6. "Standard Contractual Clauses" means the standard contractual clauses for the transfer of personal data to processors established in third countries, as approved by the European Commission in Decision 2010/87/EU, or any set of clauses approved by the European Commission which amends, replaces or supersedes these, or any equivalent set of standard contractual clauses approved by the UK.
7. "Subprocessor" means any data processor (including any third party and any affiliated company) appointed by Data Processor to process personal data on behalf of Data Controller.
8. "Supervisory Authority" means (a) an independent public authority established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws. 

3. SCOPE OF APPLICATION AND RESPONSIBILITIES

1. Data Controller and Processor Roles. The parties agree that Customer is the Data Controller and New/Mode is the Data Processor.
   
   
2. Processing of Personal Data by Customer. It is up to the Customer’s sole discretion to decide what Personal Data is transferred as part of the Service provided by New/Mode and New/Mode has no influence whatsoever over the selection of such Personal Data. The categories of Personal Data which can be processed are listed in Attachment 1.
   
   
3. New/Mode shall inform the Customer if it becomes aware or reasonably believes that Customer’s Processing instructions violate any applicable Data Protection Law.
   
   
4. Customer shall acquire and, through its use of the Services, Process Personal Data in accordance with the Data Protection Laws, including, but not limited to, providing Data Subjects with adequate privacy notice, obtaining and maintaining required consents, notification to Data Subjects that Personal Data will be made available to a third party (i.e., New/Mode and its Sub-processors).
   
   
5. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and legality of Personal Data, including the methods and consents Customer uses to acquire Personal Data. 
   
   
6. Processing of Personal Data by New/Mode. New/Mode shall only Process Personal Data in accordance with the instructions provided to it by Customer, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by a mandatory rule resulting from the applicable Data Protection Laws. In such a case, New/Mode shall inform the Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.
   
   
7. At all times New/Mode shall process Personal Data as Confidential Information.
   
   
8. Customer authorizes New/Mode to Process Personal Data in the following ways:
   1. in accordance with the Terms, including but not limited to any Order Forms, this DPA, New/Mode Policies, and Attachment 1;
   2. in accordance with processes initiated by Customer and Customer’s Users through the use of the Services; and
   3. in accordance with commercially reasonable instructions provided by Customer, where instructions are consistent with the Agreement and the normal operation of the Services. An instruction shall be deemed to be given where New/Mode acts within the framework of the Agreement.
      
      
9. New/Mode shall not take any unilateral decisions about the Processing or use of the Personal Data or the duration that the Personal Data will be stored, except pursuant to statutory provisions that prescribe otherwise. Customer is responsible for determining and complying with data storage duration limitations.
   
   
10. New/Mode undertakes to notify Customer, without undue delay, of any modification or change which may affect the Processing of Personal Data.
    
    
11. Ownership of Data. Notwithstanding Section 3.b. and 3.d. of the Agreement, the ownership and control of Personal Data remains with Customer, and Customer will at all times remain the Data Controller. Customer is responsible for compliance with its obligations as Data Controller under the Data Protection Laws, in particular for justification of any transmission of Personal Data to New/Mode (including providing any required notices and obtaining any required consents), and for its decisions concerning the Processing and use of the Personal Data.
    
    
12. Attachment 1 to this DPA sets out certain information regarding New/Mode’s Processing of Customer Data as required by Article 28(3) of the GDPR. New/Mode may make reasonable amendments to Attachment 1 by written notice to Customer from time to time as New/Mode reasonably considers necessary to meet those requirements.

4. RIGHTS OF DATA SUBJECTS

Data Subject Requests. Where New/Mode receives a Data Subject’s request related to the Data Subject’s rights to access, correct, or delete data controlled by Customer, to object or restrict the processing of data by Customer, or to data portability of data controlled by Customer, New/Mode shall not directly respond to any such requests and shall refer such requests to Customer (where Customer is identified by the Data Subject) and inform the Data Subject of such referral. New/Mode shall use commercially reasonable efforts to support Customer in taking the requested actions. The foregoing shall apply only where Customer has so instructed New/Mode in writing, and where Customer reimburses New/Mode for the cost and expenses incurred in providing such support (such reimbursement as set forth in Section 8.c. of the DPA). New/Mode shall only be held to a mere obligation of means and Customer shall remain at all times responsible for fulfilling Customer’s obligation to respond to Data Subject’s request.

5. NEW/MODE AGENTS

1. Confidentiality. New/Mode shall take reasonable steps designed to ensure that its Agents engaged in Processing Personal Data do so under written confidentiality agreements, have received the appropriate training to handle Personal Data, and are informed of the confidential nature of Personal Data.
   
   
2. Limitation on Access. New/Mode shall take reasonable steps designed to ensure that New/Mode’s access to Personal Data is limited to those people who meet the requirements under Section 4.a.
   
   

6. SUB-PROCESSORS

1. Appointment of Sub-Processors. Customer grants a general authorization to New/Mode and its Affiliates to engage or replace Sub-processors to perform parts of the Service, provided that the conditions specified below are respected.
   
   
2. Sub-Processor’s Agreement. Prior to receiving any Personal Data of Customer, Sub-processors will be under written agreements that are substantially similar in scope, where applicable, to this DPA and the Standard Contractual Clauses. New/Mode and its Affiliates shall ensure that each Sub-processor performs the applicable obligations under the Terms, as they apply to Processing of Customer Data carried out by that Sub-processor, as if it were party to this DPA in place of New/Mode. Where New/Mode’s Sub-processors fail to fulfill their data protection obligations, New/Mode will remain fully responsible and liable for the performance of its obligations and of those Sub-processors’ obligations pursuant to this DPA.
   
   
3. List of Current Sub-Processors. New/Mode and each New/Mode Affiliate may continue to use those Sub-processors already engaged by New/Mode or any New/Mode Affiliate as of the date of this DPA, subject to New/Mode and each New/Mode Affiliate in each case as soon as practicable meeting the obligations set out in Section 5.b.
   
   
4. Notice and Objection Right to New Sub-Processors. New/Mode will provide Customer with notice of any new Sub-processor, at https://www.newmode.net/trust/legal. If Customer objects in writing within ten (10) days of receipt of such notice to a particular Sub-processor Processing Personal Data (with specific details of Customer’s reasons for objection), and that objection is not unreasonable in New/Mode’s sole determination, New/Mode will use commercially reasonable efforts to provide an alternative method for provision of the Services to Customer, without Processing Personal Data using the new Sub-processor. If no objection is received within such ten (10) day period, such Sub-Processor shall be deemed approved. For example, New/Mode may allow Customer to ‘turn off’ or ‘opt-out’ of certain features provided by a Sub-Processor. If New/Mode is unable to make reasonable changes to the Service within 60 days of Customer’s written objection, Customer may terminate the Service.
   
   
5. Customer’s Processors. New/Mode’s Service includes the possibility for Customers to integrate their own APIs or those of third parties. New/Mode is not responsible for the compliance of the Processing carried out by such APIs with the applicable Data Protection Laws. Customer shall remain at all times be responsible for the compliance of the Processing carried out by its own APIs or those of third parties Customer has agreed to integrate in New/Mode’s Service.
   
   

7. SECURITY

1. Protection of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, New/Mode shall, in relation to protection of Customer Personal Data, maintain a data security policy, which incorporates technical, administrative, and physical security measures designed to ensure the safety and integrity of Personal Data, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. Customers may request a copy of New/Mode’s Data Security Documentation, which New/Mode will provide as confidential information. New/Mode may revise, but not materially diminish the standards set out in the Data Security Documentation.
   
   
2. Personal Data Breach.
   1. New/Mode shall notify Customer, without undue delay, upon New/Mode or any New/Mode Sub-processor becoming aware of and verifying the occurrence of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
      
      
   2. New/Mode shall cooperate with Customer and assist in the investigation, mitigation and remediation of each such Personal Data Breach.
      
      

8. RETURN AND DELETION OF CUSTOMER DATA

New/Mode shall return Customer Personal Data to Customer and delete Customer Personal Data in accordance with New/Mode’s data retention policies and applicable law, provided that New/Mode may retain Customer Personal Data to the extent required by applicable law and always provided that New/Mode shall ensure the confidentiality of all such Customer Personal Data.

9. ADDITIONAL TERMS 

1. Application of Standard Contractual Clauses.
   1. The Parties rely on EU- or UK-approved, as applicable, “Standard Contractual Clauses” for the processing of personal data that is directly or indirectly transferred from the European Economic Area (“EEA”) or UK, to any recipient in a country that is:
      
      
      1. not recognized by the European Commission or UK as providing an adequate level of protection to personal data; and
      2. not covered by a suitable framework for the protection of Personal Data.
         
         
   2. In accordance with the Standard Contractual Clauses, a Customer transferring Personal Data to New/Mode will be considered a “Data Exporter”, and New/Mode will be considered a “Data Importer”.
      
      
2. Instructions. Customer hereby instructs New/Mode to Process Personal Data in accordance with the applicable purchased Services as detailed in the Agreement.
   
   
3. Audits and Certifications. The parties agree that the audits described the standard contractual clauses shall be carried out in accordance with the following conditions:
   1. Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, and no more than once annually during the Terms, New/Mode shall make available to Customer (or Customer’s independent, third-party auditor that is not a competitor of New/Mode and which is under written obligations of confidentiality) information regarding New/Mode’s compliance with the obligations set forth in this DPA in the form of the audits set forth in New/Mode’s Data Security Documentation to the extent New/Mode makes them generally available to its Customers. Customer may contact New/Mode in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data.
      
      
   2. Customer or the relevant Customer Affiliate undertaking an audit shall give New/Mode or the relevant New/Mode Affiliate reasonable notice of any audit or inspection and shall make (and ensure that each of its mandated auditors makes) reasonable efforts to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the New/Mode’s and its Affiliates’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. New/Mode or its Affiliates need not give access to their premises for the purposes of such an audit or inspection:
      1. to any individual unless they produce reasonable evidence of identity and authority;
      2. outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer or the relevant Customer Affiliate undertaking an audit has given written notice to New/Mode or the relevant New/Mode Affiliate that this is the case before attendance outside those hours begins; or
      3. for the purposes of more than one audit or inspection in any calendar year, except where Customer is required to carry out by Data Protection Law, a Supervisory Authority, or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory.
         
         
   3. Customer shall reimburse New/Mode within thirty (30) days of invoice for any time expended for any such on-site audit at New/Mode’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and New/Mode shall mutually agree upon the scope and timing of the audit in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly provide New/Mode with a copy of any information regarding any non-compliance discovered during the course of an audit.
      
      
4. Certification of Deletion. Certification of Deletion shall be provided upon Customer’s written request to New/Mode.
   
   
5. Record of Processing Activities. New/Mode shall maintain a record of all categories of processing activities carried out on behalf of the Customer, in accordance with the provisions of the applicable Data Protection Law.
   
   

10. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

New/Mode and each New/Mode Affiliate shall provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of Customer by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, New/Mode.

11. MISCELLANEOUS

1. Without prejudice to Clauses 8 (Mediation and Jurisdiction) and 10 (Governing Law) of the Standard Contractual Clauses, (i) the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity, termination, or the consequences of its nullity; and (ii) this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
   
   
2. Order of precedence. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

1. OVERVIEW

1. New/Mode may Process personal data as part of the processing described hereunder. At any time, Customer, as Data Controller, may modify the description of the Processing and will notify in writing such modifications to New/Mode.
   
   
2. Customer shall decide, in its sole discretion, what Personal Data is transferred to and stored on New/Mode’s Service. While the Customer decides what data to submit, it typically may concern the data described below.

2. SUBJECT-MATTER

The definition of the Services provided by New/Mode is described in the Agreement entered into between New/Mode and Customer.

3. DURATION

For the duration of the Agreement.

4. NATURE AND PURPOSE OF THE PROCESSING

The purpose of Processing the Personal Data is to provide the Services to Customer in accordance with the Agreement.

5. TYPE OF PERSONAL DATA PROCESSED

1. The typical personal data processed by Customer using New/Mode’s Services are the following:
   1. First and Last Name
   2. Contact Information
   3. Professional life data
   4. Personal life data
   5. Connection/relationship data
   6. Locational data
   7. Publicly available social media (e.g., Facebook, Twitter, etc.) profiles, status and information
   8. Event and survey/petition registration, attendance, and response data
   9. Issue affiliation data
   10. Internet cookies
   11. Voicemail and text messages and logs
   12. Comments and posts submitted to websites, mobile apps, and online communities
       
       
2. Except where Union or Member State law provide that a data subject may not consent to any of the items in the following list, Customer may submit special categories of data to the Service to the extent that, under Customer’s sole discretion and control, and which is, for the sake of clarity, Personal Data with information revealing one or more of the following categories of Personal Data:
   1. Political party affiliation, participation, voting, contribution, and opinion data
   2. Religious belief and organization donation data
   3. Philosophical belief data
   4. Trade union membership data
   5. Ethnic data

6. CATEGORIES OF DATA SUBJECTS

1. Customers, business partners, vendors, and prospects (who are natural persons);
2. Customer’s users, supporters, prospective users, and prospective supporters, authorized by Customer to use the Service (who are natural persons);
3. Customer’s affiliates, advisors, agents, and freelancers.