General Terms and Conditions
The following Terms and Conditions shall apply to all business relations between (1) Joyn, a public limited company, with registered office at Fonsnylaan 46, Box 59, 1060 Brussels, and with registered VAT number BE 0846.759.718, (hereinafter referred to as “we”, “us”, “our” or “JOYN”) and (2) the B2B customers (hereinafter referred to as the “Merchant”).
These General Terms and Conditions (and jointly, in combination with JOYN’s attached Joint Controller Agreement, the “Agreement”) shall govern the Merchant’s use of JOYN’s proprietary software and associated Services.
Any deviating, conflicting or supplementing Merchant terms and conditions, even if such are known, shall not form part of the Agreement, unless it is expressly agreed otherwise. In the event of any conflict or inconsistency between these General Terms and Conditions and those of an individual quote or specific agreement drawn up and agreed by JOYN, the latter shall prevail.
The nullity of a clause included in these General Terms and Conditions or its inconsistency with the public order or any mandatory provisions shall have no impact on the validity and applicability of any other clauses.
ARTICLE 1 – DEFINITIONS
Merchant: the company that enters into the Services Agreement, hereby gaining access to the Joyn Platform and joining the Joyn network.
Customers: the customers of the Merchants of the Joyn network. The customers save for advantages when purchasing products or services from those Merchants, and these advantages can be used in accordance with the available offers.
Joyn App: the mobile application of the Joyn Platform.
Joyn Platform: the digital loyalty platform developed and owned by JOYN, consisting of software, computer programmes, platforms, applications, including but not limited to all algorithms, (source or object) code and methodology. The Joyn App and Services shall also form an integral part of the Joyn Platform.
Services: any Services JOYN provides to the Merchant in relation to the Joyn Platform as per the Agreement, which consists of granting a license (utilisation rights) and Services in relation to marketing, customer retention and customer insights.
Intellectual Property Rights: any intellectual property rights, including copy rights, trade and service marks, trade names, copyright on logos and stripping, inventions, confidential information, trade secrets and know-how, registered designs, design rights, patents, utility models, any rights of any kind to computer software and data, any intangible rights and privileges of a kind similar to or in connection with the above, in any way everywhere in the world and regardless of whether they have been registered; and including any granted registrations and any applications for registration, any renewals, reversals or extensions, the right to claim for compensation for past violations and any similar forms of protection that may exist anywhere in the world.
Merchant Account: the account the Merchant creates and that is activated by JOYN.
Agreement: the entire agreement between the Parties – JOYN Belgium and the Merchant – concerning the provision of the Joyn Platform and associated Services. The Agreement consists of these General Terms and Conditions, JOYN’s agreement concerning personal data sharing (hereinafter referred to as the “Joint Controller Agreement, see appendix to these General Terms and Conditions”) and any additions and amendments. The concepts that have not been defined in this Agreement, shall have the meaning set out in the applicable regulations.
Website: JOYN’s general website, available at https://www.joyndev.kinsta.cloud/.
ARTICLE 2 – THE AGREEMENT
Formation. These General Terms and Conditions shall apply to the Agreement between JOYN and the Merchant in regard to the Services. Prior to concluding the Agreement, the General Terms and Conditions and the Joint Controller Agreement shall be communicated to the potential Merchant. By ordering the Services or by concluding an agreement with JOYN, the Merchant acknowledges to have has received, read and agreed to these General Terms and Conditions and the Joint Controller Agreement.
Account activation. A Merchant Account shall be active only when the Merchant has completed all necessary registration steps, has provided all the requested information correctly and in full and has agreed to these General Terms and Conditions, and when JOYN has authorised the registration. JOYN shall inform the Merchant of this authorisation via email. If any information entered by the Merchant is incorrect or incomplete, JOYN shall request the Merchant via email to enter the correct information within 14 days. After this 14-day period, the registration shall expire, and the Merchant shall have to restart the registration process. Expiry of the 14-day period cannot result in the termination of the Agreement. JOYN shall reserve the right to refuse any application, provided there are good reasons and in close consultation with the Merchant.
Modifications. JOYN shall reserve the right to modify these General Terms and Conditions unilaterally and at any time. In such case, JOYN shall inform the Merchant of these modifications in time, by means of a notification on the Website or the Merchant Portal (https://business.joyndev.kinsta.cloud/) or by way of a communication addressed to the Merchant. The modifications shall enter into force one (1) month following the notification. The most recent and up to date version of the General Terms and Conditions is available on the Website (https:// www.joyndev.kinsta.cloud/).
Duration. The Agreement shall enter into force
- on the commencement date included in the contract, which the Merchant receives attached to the email confirming the conclusion of the Agreement.
- as soon as 5 unique customers have executed transactions on the JOYN platform, if this day precedes the contractual start date.
The Merchant may conclude the Agreement for a fixed or indefinite duration, which has consequences in relation to the possible payment methods and termination periods. The Fixed-term Agreement shall apply for an initial period of 1, 12 or 36 months following the Agreement’s commencement date. After this initial period, the Agreement shall be tacitly renewed
in the case of a monthly contract for a period of one month
in case of a 12 or 36 month contract for consecutive 12-month periods.
Transfer. The Merchant shall not be entitled to transfer this Agreement or one or more of the Merchant’s obligations arising out of this Agreement to a third party, without JOYN’s prior and written authorisation. In the event the Merchant’s trading fund is transferred to a third party, the Merchant’s rights and obligations under the Agreement shall also be transferred, in the absence of which the Merchant shall remain obliged to comply with the Agreement.
Complaints. The Merchant shall notify JOYN of any complaints in regard to faults in the Joyn Platform or the provision of Services within eight (8) calendar days of noticing the fault, via email to firstname.lastname@example.org or by phone via the customer service phone number.
The Merchant shall commit to grant the advantages to the Customers during the duration of the Agreement. In the event the Merchant, after a reminder from JOYN, refuses to grant the legitimate advantages to the Customer(s), this shall be considered a breach of the present General Terms and Conditions and JOYN shall be entitled to terminate the Agreement with the Merchant and/or claim compensation, with a of minimum amount of €500.
Applicable law and competent court. Belgian Law shall apply to the Agreement. Any disputes, directly or indirectly associated with the Agreement, shall be exclusively settled before the Commercial Tribunal in Brussels.
ARTICLE 3 – INVOICING & PAYMENT METHODS
JOYN shall periodically invoice the Merchant for the use of the Joyn Platform and the Services. Invoices shall be sent to the Merchant via email, in PDF format. The JOYN invoices shall be payable no later than 30 calendar days following the invoice date.
Complaints in relation to the content of the invoices shall be accepted only if they are communicated in writing, within 14 days following the invoice date. Invoices that have not been contested within this 14-day period, shall be deemed to have been accepted.
Agreements shall be paid only
- with MasterCard. In such case, JOYN may seek permission from the Merchant’s credit card account prior to the purchase.
- by direct debit. In the event of a declined direct debit transaction, a fixed fee of EUR 7.50 will be charged.
Any fees arising out of the Agreement payable to JOYN shall be paid without any right of offset or counterclaim and shall be made free of withholdings or deductions of any kind, except where required by law, in which case the Merchant shall commit to pay JOYN the additional amounts necessary to ensure JOYN’s net receipts, after any withholdings or deductions are no less than what those payments would have been in the absence of such withholdings or deductions. The amounts payable, as per the Agreement, shall not include any applicable VAT or other taxes, which shall be added to the Merchant’s invoice. The Merchant shall be liable to pay any general, federal or local taxes in relation to the provision or the use of the Joyn Platform, the added value, any deductions or other taxes. The Merchant shall be bound to reimburse JOYN, without delay, for any taxes or levies paid by JOYN.
In the event of late payment, JOYN shall have the right to suspend the Merchant’s access to the Joyn Platform as well as the provision of the Services, and any of the Merchant’s payment obligations shall be immediately due and payable. If following reminder, the Merchant fails to pay, a contractual compensation of 15% shall be added to the invoice’s principal amount, with a minimum amount of €25. If JOYN is forced to engage in legal proceedings, the Merchant shall be charged a contractual compensation of 10% plus a charge of €40, in compliance with the applicable regulations. In the event of a summons, a contractual compensation of 15% shall also be added to the invoice’s principal amount, with a minimum amount of €25. In addition, a late-payment interest shall apply, by operation of law, from the date of summons. The interest is determined by the Act of 2 August 2002 on combating late payment in commercial transactions. The Merchant shall also bear any costs JOYN incurs as a result of the (extra)judicial enforcement of the Merchant’s payment obligations in compliance with this article.
ARTICLE 4 – PRICES
JOYN shall have the right to modify the price of the Services, taking JOYN’s fair market value into consideration:
- on an annual basis, based on the consumer price index;
- at the end of a contractual term, in the event of a possible extension or extension of the then current term of the Agreement, subject to an annual reassessment of the price by JOYN and as agreed by the Parties; and
- with the exception of the first three (3) months after activation, at any time after a prior written notification of one (1) month, provided that JOYN demonstrates exceptional changes in the market of more than two (2) percent (“Price Adjustment”), including but not limited to a specific increase of the cost component, currency fluctuations, higher or additional royalty obligations, provided that this Price Adjustment is proportionate to those additional costs. In the event a Price Adjustment results in an increase of more than twenty (20) percent of the then applicable price, the Merchant shall be entitled to terminate the Agreement, from the date the Price Adjustment enters into force, for fully justifiable reasons. Price Adjustments shall not be applied retroactively.
ARTICLE 5 – MARKETING AND USE OF THE NAME
The Merchant shall grant JOYN a personal, limited, non-exclusive, non-transferrable and non-assignable license to use the Merchant’s trademarks and logos for JOYN’s own marketing purposes, such as a listing on the Website.
The Merchant shall not register or lodge any brands, names or other designations of JOYN in any given region in the world. The Merchant shall not contest any brands, names or other designations of JOYN in any given region in the world. The Merchant shall not take any action to remove any trade names or references to JOYN’s product name or website, or anything that could misrepresent JOYN’s ownership of the Joyn Platform.
ARTICLE 6 – CUSTOMER SERVICE
If the Merchant has any questions or issues in regard to the Joyn Platform or the Services, the Merchant can consult JOYN’s support page
(https://helpcenter.joyndev.kinsta.cloud/en/knowledge)If the support page information does not resolve the issue, the Merchant can contact JOYN’s customer service via phone or email (email@example.com). The customer service is available to the Merchant from Monday to Friday from 9 am to 5 pm, excluding official holidays and replacement holidays for official holidays that fall on a weekend.
JOYN shall try to process these requests as soon as possible.
ARTICLE 7 – THE TABLET
If the Merchant offers the Joyn Platform by means of a tablet, the Merchant shall provide a tablet with the most recent version of the applicable operating system on which the Joyn Platform can be used.
ARTICLE 8 – THE JOYN PLATFORM
The Merchant shall commit to offer the Joyn Platform uninterruptedly during the Merchant’s business’ opening hours and shall ensure the tablet is replaced, serviced and/or repaired if necessary.
JOYN shall reserve the right to modify the Joyn Platform (including the Joyn App) at any time and without prior notice (which includes the design, operation, functionalities…). Upon JOYN’s first request, the Merchant shall follow the given instructions with the aim of applying or installing possible changes and/or updates to the Joyn Platform. JOYN shall reserve the right to replace the Joyn App by a Joyn App that is compatible with a different brand or model, as long as the same service is offered.
The Merchant can consult the Merchant’s Customers’ data via the Joyn Merchant Portal. The data shall only be transferred upon the Merchant’s explicit request and in compliance with the Joint Controller Agreement.
The provision of the Services shall imply a best endeavours obligation to JOYN. JOYN shall endeavour to provide a flawless and uninterrupted service of the Joyn Platform. JOYN shall reserve the right to disable the Joyn Platform temporarily, in order to resolve an issue or perform maintenance works. JOYN shall announce these scheduled (maintenance) works in a timely manner on the Joyn Platform, and these (maintenance) works shall be performed outside the Merchant’s business hours and/or work hours wherever possible.
ARTICLE 9 – GDPR
JOYN considers the Merchant as a joint controller in regard to the Customer data the Merchant collects through the Joyn Platform. JOYN and the Merchant shall jointly determine the purposes of and tools for this processing. Their obligations in this context are laid out in the Joint Controller Agreement and shall form an integral part of the Agreement between the Parties.
ARTICLE 10 – TERMINATION OF THE AGREEMENT
JOYN shall reserve the right to terminate the Agreement with immediate effect and without prior notice, in the event
- the Merchant fails to comply with any obligations under the Agreement, within five (5) business days following a second written reminder;
- the Merchant’s company is dissolved;
- the Merchant is involved in a settlement or bankruptcy procedure; and/or;
- the Merchant damages JOYN’s reputation in any way or has the intention to do so.
In the event the Agreement is terminated in compliance with article 10.1, any already paid amounts to JOYN shall not be reimbursed.
Both Parties may terminate the Agreement
- in the case of a monthly contract: at any time in the event of cancellation, the Agreement will always run until the end of the month. Payment will therefore still be due for the month in which the cancellation was made.
- in case of a 12 or 36 month contract: no later than three (3) months prior to the expiry date of the initial period or an extension period.
In the event of termination, the Agreement shall remain in force until the end of the month.
The termination notice is completed by filling out the termination form available at joyndev.kinsta.cloud/ Stop. The Merchant shall then receive an email confirming the termination. Only a termination notice submitted by means of the completion and submission of a termination form shall be accepted. Any written termination sent by post or email shall not be accepted. In the event the Merchant terminates the Agreement for any reason and in compliance with article 10.2, any already paid amounts to JOYN shall not be reimbursed.
When the Agreement is terminated:
- the Merchant Account shall be deactivated immediately, thus blocking the Merchant’s access to the Joyn Platform and to the Merchant’s Customers’ data;
- for a period of three (3) months, the Merchant shall have the option of requesting an export of the Customers’ data listed in the Joyn Platform, via hello@Joyn.eu; and
- any licenses granted by JOYN in the context of the Agreement shall be terminated.
ARTICLE 11 – OWNERSHIP
JOYN is and shall remain the owner and holder of all Intellectual Property Rights in regard to the Joyn Platform. The Merchant shall refrain from violating these rights.
The Merchant shall refrain from any acts that could misrepresent, modify or otherwise endanger JOYN’s or JOYN’s suppliers’ property or property rights under the Agreement. The Merchant shall refrain from undertaking any actions that could result in the exhaustion of JOYN’s or JOYN’s suppliers’ Intellectual Property Rights.
ARTICLE 12 – LICENSE
In accordance with these General Terms and Conditions and the timely payment of any due amounts, JOYN shall grant the Merchant a personal, limited, non-exclusive, non-transferrable and non-assignable license to use the Joyn Platform in compliance with the applicable documentation and the Agreement. The license shall commence on the contract date and shall remain in force for the duration of the Agreement.
Notwithstanding the foregoing, and without JOYN’s prior and written permission, the Merchant shall not be permitted to:
- modify, create derivative works of or include in any other product the Joyn Platform or any other product or any part thereof;
- market, transfer, disclose, rent, lease, lend, sell, copy, distribute or sublicense the Joyn Platform or any part thereof, alone or in combination with other unauthorised software, to any third party or in combination with third party products.
Except where enforcement of this provision is prohibited by the applicable regulations, the Merchant shall under no circumstance try or deliberately incite or allow others to try to modify, decompile, disassemble, reverse engineer, decipher, decode or discover in any other way the source code or other parts of the mechanisms and algorithms used by the Joyn Platform, nor shall the Merchant lift restrictions or create derivative works of the Joyn Platform or any part thereof. The Merchant shall not modify, change, adapt, port or merge the Joyn Platform or any part thereof.
ARTICLE 13 – LIABILITY
JOYN shall only be liable for the Merchant’s foreseeable damage that is the immediate and direct consequence of a shortcoming imputable to JOYN in JOYN’s compliance with one or more obligations under the Agreement. However, JOYN’s total liability to the Merchant shall be limited to a maximum amount of €500 per damaging factor, unless in the event of intent or gross fault. JOYN cannot be held liable in any way, whether contractual or otherwise, for discontinuing an older version of the Joyn Platform.
Where legally allowed, the Joyn Platform, the Services and other associated Services shall be provided “as is”. JOYN shall decline any possible other – implicit and explicit – promises, conditions, declarations and warranties, including among others all possible implicit warranties of fitness for a particular purpose, satisfactory quality, reasonable competence and care, system integration and/or data accuracy.
JOYN shall in no way guarantee that the Joyn Platform, the Services or other associated Services:
- will be free of interruptions or errors, nor that all errors and/or bugs will be fixed (within reasonable time limits);
- will be free of viruses, will be timely or complete; and
- will provide complete, accurate, correct and non-misleading information.
JOYN can in no case be held liable to the Merchant for any indirect, punitive, special, consequential or similar damage (including damage for loss of profit, lost earnings, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the costs of purchasing replacement goods or services and reputational damage), regardless of whether they are the consequence of an oversight, violation of a contract or a legal obligation or in any other way. Each Party shall be bound to limit the damage.
A Party cannot be held liable for the non-compliance with one or more of its obligations under this Agreement in the event this non-compliance is caused by force majeure or an external cause. On the part of JOYN, fire, server, network and/or electricity failures, fraud or deception on the part of a third party and government interventions, among others, shall be deemed to constitute force majeure/external cause.
In the performance of the Merchant’s professional activity, the Merchant shall comply with all applicable regulations. The Merchant shall also determine whether the Services can be relied upon without violating any applicable regulations. The Merchant shall accept that any consequences resulting from a possible violation of this provision shall be borne by the Merchant exclusively and the Merchant shall indemnify JOYN integrally against any possible damage JOYN would incur as a result of such violation.
Also in the event JOYN cannot deliver the agreed online Services, JOYN cannot be held liable, except when the non-delivery of the relevant online Services can be attributed to a shortcoming of JOYN and exclusively for the part that was within JOYN’s control and in accordance with the limitation of liability as described above. The Internet’s availability is dependent on the Internet itself, JOYN’s service provider and JOYN’s telecommunications provider or the Merchant’s telecommunications provider. Therefore, the availability of certain online services shall be beyond JOYN’s control and responsibility in certain cases (such as in the case of unavailability of the Internet), so that JOYN cannot accept any liability in this respect.
The provisions of this article 13 (Liability) shall not apply insofar as it is limited or impeded by mandatory applicable law that cannot be modified or excluded by means of a contractual waiver.
ARTICLE 14 – THIRD PARTY CLAIMS
JOYN shall be immediately informed in writing of any third party claim on the basis of a supposed or actual violation by the Joyn Platform or other material made available by JOYN, and shall have the right to check and control the defence and resolution of any such claim. The Merchant shall have the right to participate, at its own costs, in any such proceedings. JOYN shall periodically inform the Merchant of the status of the proceedings and/or negotiations. The Merchant undertakes to reasonably collaborate with JOYN on the defence and resolution of any such claim(s).
At JOYN’s discretion and to eliminate or prevent any violation, JOYN’s obligations shall, in addition to defending and resolving any such claim(s), also include:
- modifying or replacing, at its own cost and at its own discretion, the infringing part by a non-infringing part;
- obtaining the necessary rights from relevant third parties; or
- terminating the Agreement with immediate effect and reimbursing any payments proportionally.
In the event of a supposed or actual violation of the Intellectual Property Rights in relation to the Joyn Platform, the Merchant shall immediately cease to use the Joyn Platform. If the Merchant does not comply with this obligation, JOYN may, at its own discretion, terminate the Agreement with immediate effect and without being liable to pay any compensation or indemnification of any kind.
The Merchant shall, at all times during and after the Agreement, indemnify and hold JOYN harmless from and against all claims, demands, actions, proceedings and all other damage in relation to any violation of the Agreement by the Merchant, negligent or wrongful acts or defaults by the Merchant under the Agreement, wrongful conduct or misrepresentation by the Merchant and/or errors or defaults in the performance of the Merchant’s obligations under the Agreement, with third party claims as a result.
ARTICLE 15 – MISCELLANEOUS PROVISIONS
Independent contractors. In the context of this Agreement, both Parties are independent contractors. As a result, nothing in this Agreement shall or may be interpreted in such a way that a partnership or joint-venture between the Parties has been established, and neither Party shall dispose of the (actual or apparent) authority to bind the other Party.
No implied rights. Except where explicitly determined otherwise in the Agreement, nothing in this Agreement grants or may be interpreted in such a way that grants a Party further or implicit rights or licenses to Intellectual Property Rights or applications (included but not limited to patent applications or patents) that are owned by or are in the name of the other Party or that are under the other Party’s control.
The Merchant’s brand. JOYN may refer to the name, trademarks, service marks, logos and/or branding (trademark rights) of the Merchant and the existence of the license in (i) marketing and advertising materials as a demonstration of JOYN’s experience, and (ii) internal data systems. In this respect, the Merchant shall grant JOYN, and JOYN shall accept, a personal, limited, non-exclusive, non-transferable and non-assignable license for the usage of the Merchant’s trademark rights.
Force majeure. With the exception of payment obligations, XXXX, insofar as the proper compliance of such an obligation is impeded or delayed by a circumstance that is beyond the reasonable control of that Party, including but not limited to war and other hostilities, civil disturbances, accidents, trade conflicts, strikes or lock-outs, floods, fires, explosions, terrorist attacks, government-imposed acts or restrictions on import or export or other causes beyond the relevant Party’s control. The relevant Party shall inform the other Party without delay of the nature and consequences of such an event and, where feasible, both Parties shall use reasonable efforts to minimise those consequences and to comply with their respective obligations in their original form as much as possible.
Waiver. Failure to exercise or delay in exercising a right or remedy the law or the Agreement provides, shall not infringe such a right or remedy, shall not be interpreted as a waiver thereof, shall not exclude the performance thereof at a later time and no (partial) performance of such a right or remedy shall render further performance thereof or the performance of any other remedy impossible.
Dispute resolution. The Parties shall always have the good faith to try to settle any disputes arising out of this Agreement through negotiation.
JOINT CONTROLLER AGREEMENT
This Joint Controller Agreement (hereinafter referred to as the “Agreement”) in regard to personal data processing (as defined hereinafter) shall be concluded between:
- Joyn, a public limited company under Belgian law, with registered office at Fonsnylaan 46, Box 59, 1060 Brussels, and with VAT number BE 0846.759.718 (hereinafter referred to as “JOYN”); and
- You and/or Your organisation/company, i.e. a Customer of JOYN and the Party for which JOYN provides certain Services as defined in the Services Agreement between JOYN and the Customer (hereinafter referred to as the “Merchant”).
Hereinafter, JOYN and the Merchant shall be jointly referred to as the “Parties” and individually as a “Party”.
This Agreement on the processing of personal data has been drawn up and concluded to enable the Parties to comply with their obligations as determined in the European Parliament and the Council’s data protection regulation 2016/679 of 27 April 2016 (hereinafter referred as the “GDPR”). The Parties shall jointly determine the purposes of and tools for this processing and therefore shall act as joint controllers for the Processing Activities. This Agreement shall contain the Parties’ rights and obligations in relation to the Personal Data processing.
The present Agreement shall form an integral part of the Master Agreement for the provisioning of Services and other contractual agreements or documents as agreed by the Parties, for the performance of JOYN’s Services (“Master Agreement”). The conditions on the basis of which Personal Data are processed as part of the Master Agreement have been laid down in the present Agreement.
ARTICLE 1: DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply:
“Data Subject”: an identified or identifiable private individual.
“Security Measures”: those measures aimed at protecting Personal Data against accidental or wrongful destruction or loss, as well as unauthorised access, modification or transfer.
“Third Party”: any Party that is not JOYN nor a Data Subject, Merchant or Processor arising out of this Agreement, nor a person authorised to process Personal Data under the direct authority of JOYN or a Merchant.
“Services”: the Services provided by JOYN in accordance with the Master Agreement.
“Joint Data Controllers”: when two or more data controllers jointly determine the purposes of and tools for the processing.
“Violation in relation to Personal Data”: violation of the security which accidentally or
wrongfully results in the destruction, loss, modification or unauthorised distribution of or unauthorised access to transferred, stored or otherwise processed Personal Data.
“Personal Data“: any information on an identified or identifiable private individual (the “Data Subject”); identifiable is considered a private individual who can be directly or indirectly identified, notably through an identifier such as a name, an identification number, location details, an online identifier or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that private individual.
“Supervising Authority”: an independent government agency set up by a member state pursuant to article 51 of the GDPR.
“Confidential Information”: any information disclosed to the other Party in writing or in any other tangible form as part of this Agreement, that is or can be considered confidential on account of the nature of the data or the nature of the circumstances on the basis of which the information must be disclosed, such as, but not limited to, product information, customer lists, price lists and financial information.
“Processor”: any Processor recruited as a subcontractor by one of the Parties, who agrees to process the Personal Data for and on behalf of one of the Parties in compliance with the present Agreement;
“Employee”: a person recruited by an employer, who has concluded an employment agreement or who is employed under an employment agreement for the performance of employment services for a salary or a fixed remuneration. An Employee does not provide professional services as part of an independent activity. Agents, distributors, advisors, consultants, freelancers, (independent) (sub)contractors or other third parties shall not be considered Employees for the purposes of this Agreement.
Any other used yet not defined terms shall have the meaning they have in the Master Agreement.
ARTICLE 2: OBJECT OF THE AGREEMENT
The Parties wish to share and exchange certain Personal Data as detailed below, as part of the Services performed by JOYN.
JOYN shall perform the Services in accordance with the provisions of the present Agreement.
Both Parties shall explicitly commit to comply with the provisions of the relevant applicable regulations in relation to data protection, including but not limited to the GDPR, and to refrain from doing or not doing anything that could result in the other Party violating the relevant and applicable regulations in relation to data protection.
Processing Activities. The exchange and transfer of data between the Parties; relates to the Services performed by JOYN. The Processing Activities consist of:
The processing of Personal Data via the Joyn Platform
The transfer to the Merchant of the Personal Data as referred to in article 2.5
For a full description of JOYN’s Processing Activities in relation to the Joyn Platform, please consult JOYN’s Privacy Statement at https://www.joyndev.kinsta.cloud/nl-be/privacyverklaring.
Personal Data categories. The Personal Data that are processed and exchanged are:
Customer details (such as name, address, email address and phone number)
Personal characteristics (such as gender and language)
Data Subjects. The Data Subjects are the customers of the Merchant
Purposes. Both Parties shall guarantee they shall use the Personal Data exclusively for the proper performance of the Services as part of the Master Agreement in accordance with the provisions of the present Agreement and the internal operation of the Parties.
The Parties may and shall only process the Personal Data resulting from the transfer or exchange as referred to in article 2.5. In addition, the Personal Data shall only be processed with respect to the purposes determined by the Parties in this article.
Both Parties shall commit to take appropriate measures to guarantee that the Personal Data are not obtained by an unauthorised Third Party or illegitimately used.
ARTICLE 3: DURATION OF THE PROCESSING
The present Agreement shall remain applicable as long as the Parties process Personal Data in the capacity of Joint Controllers.
In the event of a violation of this Agreement or the applicable provisions of the GDPR, a Party may instruct the other Party to immediately cease the processing of the Personal Data.
If the Agreement ends or if the Personal Data are no longer relevant for the performance of the Services, a Party shall, as commissioned by the other Party, delete all Personal Data or return all Personal Data to the first Party, delete all existing copies and declare it has done so, unless storage of the Personal Data is required by the European Union or Member State.
ARTICLE 4: ASSISTANCE
Compliance with the regulations. A Party shall provide the other Party assistance in its compliance with the obligations under the GDPR, taking into account the nature of the processing and the information available to the Party.
Violation in relation to Personal Data. In the event of a Violation in relation to Personal Data relating to the processing subject of this Agreement, both Parties shall commit to inform each other immediately and without delay of the Violation in relation to Personal Data, and to inform as soon as the Party being confronted with a Violation in relation to Personal Data has taken knowledge of this Violation in relation to Personal Data.
This notification shall, at a minimum, include the following information:
The nature of the Violation in relation to Personal Data;
The categories of the Personal Data to which the Violation relates;
The categories of the concerned Data Subjects, and, approximately, the number of Data Subjects concerned;
The categories of the relevant data and, approximately, the amount of data;
The probable consequences of the Violation in relation to Personal Data;
The measures suggested or taken to tackle the Violation in relation to Personal Data, including, when applicable, the measures to limit the possible negative consequences thereof.
If the relevant Party confronted with a Violation in relation to Personal Data relies upon a Processor, this Party shall require the Processor to supply the same information if a Violation in relation to Personal Data occurs at the Processor. The relevant Party shall immediately transfer the information it receives from the Processor to the other Party.
The relevant Party and its Processor(s) shall designate one of their Employees as the single point of contact, responsible for all communications between the Parties and the Processor for an incident that resulted or can result in the accidental or unauthorised destruction, loss, modification or transfer of or unauthorised access to Personal Data processed on behalf of JOYN, regardless of whether this accidental or unauthorised destruction or loss results or can result in a Violation in relation to Personal Data.
The Parties, and where applicable the Processor(s), shall ensure they collaborate in good faith to limit the possible negative consequences of a Violation in relation to Personal Data.
ARTICLE 5: INFORMATION OBLIGATIONS
The Merchant shall, immediately and upon JOYN’s simple request, provide JOYN with any information JOYN requires and at a minimum the information determined by the provisions of the present clause:
- Any relevant details regarding the Merchant’s company structure as well as accurate and up to date identification details regarding all entities of the Customer involved in the processing of Personal Data, including the head office location;
- The aspects of the processing for which it relies or wishes to rely upon the Services of a Processor, as well as the identification details of a Processor, including the Processor’s head office location. The Merchant shall transfer to JOYN the agreement concluded with the Processor(s) and pertaining to or relevant for the processing of Personal Data, unless such agreement concluded with the Processor(s) contains Confidential Information, in which case such Confidential Information may be removed;
- Geographical details regarding the locations of the processing, including the back-up options and options to destroy the data;
The physical, organisational, technical and logical Security Measures the Merchant and the Merchant’s Processor(s) have taken, as determined in article 7 of the present Agreement.
ARTICLE 6: RIGHTS OF THE DATA SUBJECTS
Taking into account the nature of the processing, both Parties shall guarantee to take the appropriate technical and organisational measures for the performance of their obligations under the present Agreement.
The following conditions shall apply to any requests submitted by the Data Subjects in relation to their rights regarding the processing of their Personal Data by one of the Parties or their Processors:
- A Party shall notify the other Party without delay of any requests submitted by a Data Subject regarding Personal Data the Parties have exchanged;
The Merchant shall immediately comply with and shall require the Processor(s) to immediately comply with any of JOYN’s requests, so as to enable JOYN’s compliance with a request submitted by a Data Subject who wishes to exercise one of his or her rights;
The Merchant shall ensure that both the Merchant and the Processor(s) dispose of the required technical and organisational competencies to block access to Personal Data and to physically destroy the data, without any option to retrieve the data, if and when JOYN submits such a request;
A Party shall provide the other Party, upon its simple request, with any assistance it requires and any information it requires to defend its interests in any type of proceedings – legal proceedings, arbitration or other – brought against the other Party or its Employee due to a violation of the fundamental rights to privacy and the protection of Personal Data of Data Subjects.
ARTICLE 7: SECURITY MEASURES
During the term of this Agreement, the Parties shall take and maintain appropriate technical and organisational measures in such a manner that the processing complies with the GDPR’s provisions, and that the protection of the Data Subject’s rights is guaranteed.
The Parties shall take, among others, technical and organisational measures against wrongful or unauthorised processing, and shall periodically reassess the adequacy of the Security Measures and adapt these where necessary.
In particular, the Parties shall take the appropriate technical and organisational measures to guarantee a security level in line with the risks, as per article 32 of the GDPR.
For the assessment of the appropriate level of security, the risks associated with the processing shall be taken into consideration, in particular those associated with accidental or wrongful destruction, loss or modification, unauthorised disclosure of or unauthorised access to the transferred, stored or otherwise processed Personal Data.
A Party shall reserve the right to suspend and/or terminate the Master Agreement for an indeterminate period, in the event the other Party can no longer provide the technical and organisational measures appropriate for the processing risk.
ARTICLE 8: INTERNATIONAL TRANSFER
The Parties shall agree that Personal Data can only be transferred to and/or stored at a recipient outside of the European Economic Area (EEA) in a country that does not fall within the scope of an adequacy decision taken, by way of exception, by the European Commission, and only if this is necessary to comply with the obligations under the present Agreement. Such a transfer shall be governed by the conditions of an agreement for the transfer of Personal Data containing standard contract provisions such as stipulated in the European Commission’s decision of 5 February 2010 (Decision 2010/87/EG) or other mechanisms the applicable regulations in relation to data protection provide.
Prior to the international transfer, the Parties shall inform each other of the specific measures taken to guarantee the protection of the Data Subject’s Personal Data, in accordance with the GDPR.
ARTICLE 9: BEHAVIOUR WITH REGARD TO NATIONAL GOVERNMENT BODIES AND JUDICIAL AUTHORITIES
The Parties shall immediately inform each other of any request, order, investigation or any summons addressed to a Party or its Processor by a competent national public authority or judicial authority, containing the notification of the Personal Data processed by the Party or a Processor or all data and/or information relating to such processing by the relevant Party.
Notwithstanding article 9.1 of the present Agreement, both Parties shall ensure that there are no applicable legislative obligations rendering the performance of the obligations under the present Agreement impossible for one of the Parties.
ARTICLE 10: CONFIDENTIALITY
Each Party shall commit to observe confidentiality in respect to the Personal Data and the processing thereof. The Parties shall ensure each other confidentiality by means of measures that are not less restrictive than the measures they take to protect their own confidential materials, including Personal Data.
Each Party shall guarantee that its Employee or Employees authorised to process the Personal Data commit to observe confidentiality in respect to the Personal Data processing or are bound by an appropriate legal obligation of confidentiality.
ARTICLE 11: LIABILITY
Without prejudice to the Master Agreement, a Party shall only be liable for the damage caused by the processing if it has not complied with the obligations under the GDPR or if it has violated the terms of the present Agreement.
A Party shall be liable, whether in contract or in tort (including default) or in any other way associated with the present Agreement, including liability for serious error, for substantiated shortcomings attributable to the Party. The Parties’ liability for shortcomings under the present Agreement shall be limited to the incurred foreseeable, direct and personal damage, excluding consequential damage (even if informed of the possibility of such consequential damage or if the possibility of such consequential damage was reasonably foreseeable), where “consequential damage” shall mean damage or loss that does not directly or immediately result from a contractual and/or non-contractual non-performance, but instead indirectly and/or after some time, including but not limited to loss of income, interruption or slowdown of business activities, increase of personnel costs and/or the costs of reduction in staff, damage consisting of or resulting from third party claims, lack of expected savings or benefits and loss of data, profit, time or income, loss of orders, loss of customers, increase of overhead costs, consequences of a strike, regardless of the causes thereof.
If it is demonstrated that both Parties are responsible for the damage caused by the Personal Data processing, both Parties shall be liable and both Parties shall pay compensation in proportion to their individual share in the damage caused by the data processing.
In any case, the total liability of JOYN as per the present Agreement shall be limited to an amount of €500 per damaging factor.
ARTICLE 12: MEDIATION AND JURISDICTION
The present Agreement shall be interpreted in accordance with the GDPR.
Each Party shall agree that if the Data Subject brings a claim for compensation on the basis of this Agreement, the Merchant shall accept the Data Subject’s decision:
To refer the dispute to an independent person for mediation;
To refer the dispute to the courts of Belgium.
The Parties shall agree that the Data Subject’s choice shall be without prejudice to his or her material or procedural rights of action in accordance with other provisions of the applicable national or international regulations.
Any dispute between the Parties in relation to the conditions of the present Agreement shall be referred to the competent courts as determined in the Master Agreement.
ARTICLE 13: TERMINATION OF THE AGREEMENT
The present Agreement shall remain applicable as long as the Parties process Personal Data in the capacity of Joint Controllers.
In the event of a violation of this Agreement or the GDPR, JOYN may instruct the Merchant to immediately cease the processing of the Personal Data.
Each Party shall store the data for only as long as is necessary to perform the Services for which the data are processed.