Terms and Conditions

Last revision: December 2024

1. Services General Terms and Conditions

These services general terms and conditions (“T&Cs”) are updated as of October 2024 and govern any agreement between a Client and The Advantage Group International, Inc. (“AGI”) to provide certain syndicated benchmarking reports under the Advantage Report™ brand to assist the Client in strengthening its business relationships and performance with its key customers.

2. Definitions

The terms used in these T&Cs and not otherwise defined herein shall have the meanings set forth below:

“Advantage Affiliates” means organizations which are legally sanctioned through a franchise agreement or other independent contractor agreement with AGI to offer for sale any Deliverable subject to defined specifications of quality assurance as stipulated in the franchise agreement or other independent contractor agreements.

“Advantage Material” means (i) Advantage Report™ product, (ii) any addition, variation, portion, compilation or derivative work of the Advantage Report™ product, any Deliverables or any Advantage Report™ Programs, (iii) any market research methodology or techniques developed, used or procured by AGI under these T&Cs, (iv) any advertising, marketing and/or other promotional concepts, formulas, designs, specifications, models, drawings, blueprints, flow charts, trade secrets, inventions and any other copyrightable subject matter or materials developed, used or procured by AGI, including without limitation any computer programs, (v) any Benchmark Data, (vi) improvements, (vii) any Confidential Information in the foregoing or other properties, assets or rights of AGI, and/or (viii) any and all trademarks, logos, brands and distinguishing symbols or terms of AGI.

Advantage Report™ Internal Practice Assessment” means Advantage Report™ Program that benchmarks the Client’s internal staff performance.

Advantage Report™ Local Clientship Agreement or LSA means terms and conditions between AGI and a Client Affiliate or, as applicable, between an Advantage Affiliate and a respective Client Affiliate in a particular local market agreement executed by the Parties (or, as applicable parties thereto) in a form substantially similar to the Advantage Report™ Local Clientship Agreement which shall be provided to the Client or the Client Affiliate upon request. The term of the LSA shall commence as of the Effective Date and will continue throughout the Term of the Agreement unless otherwise agreed in writing by the Parties (or, as applicable, the parties thereto).

“Advantage Report™ product” means the main industry syndicated benchmarking survey report product that benchmarks the Client’s status among Client peers produced and procured by AGI to the Client.

Advantage Report™ Program or Program means Advantage Report™ product together with an add-on report or report variation to the Advantage Report™ product, ordered separately from the Advantage Report™ product, or together, including, but not limited to: (i) Advantage Report™ product by channel, class of trade, or business unit, (ii) Advantage Report™ Internal Practice Assessment, (iii) Advantage Report™ Retailer, (iv) any customized work product or report specifically for the Client, or (v) notwithstanding anything contrary set forth in these T&Cs, any other work product, report or survey procured by AGI with no general applicability to AGI’s business procured by AGI to the Client.

“Advantage Report™ Retailer” or Mirror Report” means Advantage Report™ Program that assesses the performance of separate Customers based on ratings provided by Clients of Advantage Report™ product in areas of business practices similar to Advantage Report™ product.

“Affiliate” of either Party means any corporation, firm, partnership, organization or entity, whether de jure or de facto, which such Party directly or indirectly controls, is controlled by or is under common control with. For the purpose of this definition, the term “control” means direct or indirect ownership of fifty percent (50%) or more of the outstanding equity voting stock (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of a Party or other entity.

“Agreement” means a legal and enforceable agreement, which is evidenced by these T&Cs, the Statement of Work, Local Purchase Order, or other similar document agreed to by the parties indicating their intention, or any other document separately provided to the Client by AGI, including any amendments or revisions to any of the foregoing.

“Agreement for Release of Deliverables” means the agreement between AGI, the Client and a Client Affiliate in a form substantially similar to the Agreement for Release of Deliverables which shall be provided to the Client or the Client Affiliate upon request, with Effective Date and Term as specified thereunder, which further clarifies the coordination of delivery periods for Deliverables between a Client Affiliate and the Client.

“Benchmark Data” means the Client Data that is stored in AGI’s database used to determine certain metrics and benchmarks.

“Business day” means any day of the week other than Saturday, Sunday or a statutory holiday in the Province of Ontario and the jurisdiction that the Client operates from.

“Client” means the Company as identified in the Statement of Work and/or any Client who wishes to avail of the Services of AGI pursuant to these T&Cs and the Statement of Work, as the case may be.

“Client Affiliates” means any Affiliate of the Client.

“Client Data” means information or data, provided by the Client to AGI, its Affiliates or Advantage Affiliate, if any, and trademarks, logos and tradenames of the Client and the Client Affiliates.

“Confidential Information” has the meaning set forth in section 9 of these T&Cs.

“Customer” means any customer of the Client or a Client Affiliate.

“Customized Studies” has the meaning set out in a form substantially similar to the Customized Studies form, which shall be provided to the Client or the Client Affiliate upon request.

“Deliverables” or “Program Deliverables” has the meaning set forth in section 4 of these T&Cs.

“Expenses” means reasonable out-of-pocket expenses incurred exclusively for the purposes of fulfilling AGI’s responsibilities as agreed by the Parties under the Statement of Work and/ or Local Purchase Order.

“GDPR” means the EU General Data Protection Regulation (Regulation (EU) 2016/679) as amended, superseded or replaced from time to time.

“Intellectual Property” means any (i) intellectual property or intangible right that is or may be protected by way of contract or other instrument such as rights that a person might have in trade secrets, Confidential Information, know-how and similar assets or properties and (ii) intellectual property that is or may be granted by legislation, whether registered or not, related to patents, copyright, trademarks, industrial (or patent) designs, domain names, integrated circuit topography and trade secrets, as applicable, or through such other legislation that is or may be in effect during or after the Term.

“Local Purchase Order” means specific terms and conditions between AGI, or an Advantage Affiliate, as applicable, and a Client Affiliate in a particular local market, specified in a purchase order executed by AGI, or by an Advantage Affiliate, as applicable, and the particular local Client Affiliate in a form substantially similar to the Local Purchase order document which shall be provided to the Client or the Client Affiliate upon request.

“Parties” means AGI and the Client, and a “Party” means any one of them.

“Program Costs” means those prices to be paid net of applicable discounts or allowances, if any, incurred exclusively for the purposes of fulfilling AGI’s responsibilities as agreed to and as set out in the Statement of Work, Local Purchase Order and/or the List of Prices – Price Rate Card.

“Services” means the provision of the Deliverables in the Agreement.

“Statement of Work” or “SOW” means specific terms and conditions applicable between AGI and the Client, as specified in a statement of work executed by the Parties in a form substantially similar to the Statement of Work document which shall be provided to the Client or the Client Affiliate upon request.

“Term” has the meaning attributed to such term in section 3 of these T&Cs.

“Third Party” means a person or entity who or which is not a party to the Agreement between AGI (of its Affiliates) and the Client or Client Affiliate.

3. Additional Interpretations and Schedules

3.1 In the Agreement: (i) the headings to the sections are for convenience only and have no legal effect, (ii) words denoting the masculine, feminine or neuter gender respectively includes the other genders and any reference to the singular includes the plural (and vice versa), (iii) the division of the Agreement into separate articles, sections, subsections and schedules, the provision of a table of contents, the Agreement’s title and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of the Agreement, (iv) words or abbreviations which have well known or trade meanings are used herein in accordance with their recognized meanings, and (v) the word “including” will mean “including without limitation”, the word “includes” will mean “includes without limitation” and the word “in particular” will mean “in particular without limitation.”

3.2 Schedules
The following schedules (the “Schedules”) attached hereto, including any attachments thereto, are incorporated in and form part of these T&Cs:
a. European Union General Data Protection Regulation (Regulation (EU) 2016/679) Data Processing Schedule Covering Article 28 GDPR (Processor Terms) and Incorporating Standard This Data Processing Schedule;
b. any other Schedule added to these T&Cs from time to timeAny Schedule, including any attachments thereto, may be amended or terminated in accordance with the procedures set forth in these T&Cs. All Schedules, including any attachments thereto, shall be deemed to be incorporated into and form part of these T&Cs.

3.3 Terms
These T&Cs will be effective as of Effective Date and will continue for an indefinite period and/or for as long as a Statement of Work and/or Local Purchase Order is in operation and in effect, unless otherwise terminated in accordance with section 12 of these T&Cs, provided that these T&Cs (and the Schedules) may be revised and updated from time to time.

4. Deliverables

4.1 AGI shall provide to the Client, and the Client shall be solely responsible for maintaining, the following deliverables, as applicable, (“Deliverables”): (i) any Advantage Report™ product as specified in the Statement of Work or Local Purchase Order) and/or (ii) any Advantage Report™ Program, as specified in the Statement of Work or Local Purchase Order and/or (iii) any Customized Studies.

4.2 The Client shall provide the following business contact information and entrusts the processing of such business contact information to AGI: customer contact names, title, category responsibility, address, phone number and email addresses. AGI may use the business contact information only to the extent necessary to perform its obligations hereunder. AGI shall secure all entrusted business contact information and shall notify the Client immediately if it becomes aware of any unauthorized or unlawful processing, loss of, or damage to or destruction of any business contact information. The Client shall also provide assistance in obtaining the required permissions for the use of such data, as legally required, and any Voice of the Supplier Survey Participation, if applicable (as such term is used in the Statement of Work or Local Purchase Order, as the case may be) or in the applicable Customized Studies document. AGI is and shall continue to remain GDPR compliant in applicable markets. If required, a separate Data Processing Declaration can be added to and incorporated as part of these T&Cs, the Statement of Work and/ or Local Purchase Order.

4.3 The protocol for release of Deliverables as between the Client Affiliates and the Client is set out in the Agreement for Release of Deliverables document, which shall be provided to the Client or the Client Affiliate upon request.

5. Fees

Fees are specified in the Statement of Work or Local Purchase Order of these T&Cs and shall be in accordance with the prices set out at the List of Prices – Price Rate Card, less any applicable global discount as specified in the List of Prices – Price Rate Card, other than in respect of any Customized Studies. The applicable currency shall be specified in the Statement of Work, Local Purchase Order or List of Prices – Price Rate Card. Compensation and the applicable currency in respect of any Customized Studies shall be set out in the Customized Studies document.

6. Relationship between the Parties

Neither these T&Cs nor the performance of the obligations under these T&Cs, Statement of Work, Local Purchase Order or any other document evidencing the obligations of the parties shall create partnership, joint venture, agency, franchise/ franchisor relationship or employment relationship of any kind. The Parties shall act as independent contractors at all times, and no Party shall have the authority to bind or represent the other. Unless expressly authorised in writing, AGI shall not assume or create any express or implied obligation on behalf of the Client or the Client Affiliate.

7. Representations and Warranties

The Parties to these T&Cs represent and warrant as follows:
(i) each Party represents and warrants to the other Party as follows: (a) the Party legally exists under the laws of the jurisdiction that it operates in and to its knowledge is in compliance with all applicable laws, regulations and rules thereof; (b) it has the authority to enter into the obligations as evidenced by these T&Cs, the Statement of Work or the local Purchase Order, or other similar document, and to perform all of its duties and obligations hereunder; and (c) to its knowledge, no contractual or legal restrictions prohibit the Party from executing and performing its obligations thereunder.

7.1 AGI warrants that its work required to prepare the Deliverables shall be performed by appropriately qualified and suitably experienced personnel in a professional and workmanlike manner, in accordance with the Deliverables and AGI specifications set forth in the Statement of Work, Local Purchase Order or in the Customized Studies document).

7.2 AGI shall not knowingly misappropriate, violate or infringe any Third-Party Intellectual Property provided that the Client complies with the Permitted Use of Deliverables under section 8 of these T&Cs. AGI’s warranty shall extend only to the Client, and not to any other Third Party.

7.3 Except as expressly stated in these T&Cs, AGI disclaims all other warranties, express or implied, including without limitation the implied warranties of non-infringement to the maximum extent permitted by law.

7.4 The Client, or any of the Client Affiliates, shall not misappropriate, violate or infringe any Third-Party Intellectual Property. The Client Data used for AGI’s performance of the Services hereunder shall not infringe any Intellectual Property or Third-Party rights.

8. Intellectual Property

8.1 Ownership

8.1.1 AGI is and shall continue to be the sole and exclusive owner of the Advantage Materials, other than any Client Data contained therein and other than software provided by Third Party, and any and all Intellectual Property related to Advantage Materials other than any Client Data contained therein. Other than in respect of the Client Data contained in Advantage Materials, The Client shall not at any time, directly or indirectly (a) challenge AGI’s right, title and interest in the Advantage Materials and Intellectual Property related to the foregoing or the validity of any Intellectual Property in the Advantage Materials or any of AGI’s other property, or (b) infringe, violate or misappropriate the Intellectual Property or other rights of AGI.

8.1.2 The Client is and shall be the sole and exclusive owner of the Client Data and the Intellectual Property related thereto. AGI shall not at any time, directly or indirectly (a) challenge the Client’s right, title and interest in the Client Data and Intellectual Property related to the foregoing or the validity of any Intellectual Property in the Client Data or any of the Client’s other property, or (b) infringe, violate or misappropriate the Intellectual Property or other rights of the Client.

8.1.3 AGI acknowledges that it shall not, by virtue of these T&Cs, acquire any ownership interest in the Client Data or any Intellectual Property related thereto. The Client and the Client Affiliates reserve all rights to the Client Data not expressly granted to AGI hereunder.

8.2 Use of the Deliverables

8.2.1 The Client consents, and the Client shall cause any of the Client Affiliates to consent, to having AGI use the Client Data in order for AGI to provide the Services hereunder. The Client’s consent shall not be interpreted as granting any interest in the Intellectual Property by license or as constituting an assignment of Intellectual Property.

8.2.2 AGI consents to having the Client use Deliverables to the extent that the Client Data is contained therein for internal purposes only and only in accordance with section 9 these T&Cs (collectively and individually “Permitted Use”) subject to the conditions below of this section 8.2. If Client wishes to use any part of the Deliverable externally, prior authorization and approval from AGI is required.

8.2.3 The Client shall seek, and it shall cause the Client Affiliates to seek, prior written approval for any external use of all or any Deliverables and any Intellectual Property related thereto except as expressly provided in the Agreement. Subject to Section 8.2.4 below, the Client’s Permitted Use of Deliverables and Intellectual Property related thereto in the Agreement shall clearly indicate that AGI is the owner of any trademark and/or copyright. Except for the Permitted Use of the Deliverables and Intellectual Property related thereto as contemplated in this section, AGI does not grant, under any circumstance, any express or implied right or license to the Client or any Client Affiliate in respect of the Advantage Material and/or any Intellectual Property relating to the foregoing.

8.2.4 With respect to any internal or external use of the Deliverables, the Client shall not amend, modify, append to or delete any portions of the Deliverables.

8.2.5 Other than the Permitted Use, the Client shall not, and shall cause the Client Affiliates to not copy, reproduce, use, display or disseminate, or authorize to be copied, reproduced, used, displayed or disseminated, any or all of Advantage Material without AGI’s prior written consent.
8.2.6 AGI reserves the right to use and disseminate collective and/or aggregated Benchmark Data.
8.2.7 The obligations of the Parties under this Section shall survive the expiry or the termination of the agreement between the Parties (as evidenced by these T&Cs, the Statement of Work, the Local Purchase Order or similar document) for whatever reason.

9. Confidentiality

9.1 The Parties agree that all information relating to any property, assets or information of any kind furnished pursuant to these T&Cs (or the Statement of Work or Local Purchase Order) or relating to Intellectual Property by each Party (the “Disclosing Party”) to any other Party (the “Receiving Party”) shall be confidential and proprietary of the Disclosing Party (the “Confidential Information”). The terms and conditions of these T&Cs (or the Statement of Work or Local Purchase Order) shall be deemed Confidential Information of the Parties. The Receiving Party shall not use any Confidential Information provided by the Disclosing Party for any purposes other than as permitted or required under these T&Cs (or the Statement of Work or Local Purchase Order). The Receiving Party agrees not to disclose or provide any Confidential Information to any Third Party (with the exception of any employees, consultants and/or professional advisors on a need-to-know basis who are bound by obligations of non-disclosure and limited use at least as stringent as those contained herein) without the express written consent of the Disclosing Party. The Receiving Party shall take all commercially reasonable measures, including without limitation measures taken by such Party to safeguard its own confidential information and to prevent disclosure of the Confidential Information by its employees, representatives and agents. Upon the Disclosing Party’s request, the Receiving Party shall promptly return all Confidential Information to the Disclosing Party.

9.2 The confidentiality obligations relating to the Confidential Information are subject to the following provisions:

a) notwithstanding anything to the contrary set forth in these T&Cs (or the Statement of Work or Local Purchase Order), AGI reserves the rights to disclose rankings by the Client that are produced by or on behalf of AGI (including, without limitation, such Client’s ratings) as is necessary in the ordinary course of the AGI’s business;

b) Benchmark information obtained through the Deliverables is intended to provide the Client with perspective and insight for the establishment of internal improvement efforts. Notwithstanding anything to the contrary herein, the Client may use or refer to the ratings of other rated Clients or manufacturers and/or any of the benchmarking information obtained through the Deliverables in any area of any Advantage Report internally as may be required. For marketing, promotional or general communication outside of the Client’s own company, including publication of findings, AGI requests that it be notified of such uses so that AGI may verify its authenticity. The purpose of the Advantage Report is to encourage constructive dialogue between suppliers and retailers to enhance and improve their relationship and identify areas for improvement. Constructive use of the Advantage Report is when the Client distils the rankings, ratings and qualitative feedback into “themes” and discusses such “themes” with the Customer respondents, seeking their alignment to the themes and to the action to be taken for improvement. If the Client is unsure of how to discuss the feedback with a Customer, the Client is encouraged to consult with its AGI representative.

9.3 AGI encourages the Client to thank Customers for their participation, to discuss key insights and themes with Customers, and to share with Customers what the Client intends to do differently as a result of the insight gained from the Advantage Report. Provided, however, that the Client does not question or challenge the ratings, rankings or interview comments with Customers, as this may be detrimental to Customers’ future participation in the Advantage Report.

9.4 All Confidential Information (including copies) of one Party is and shall remain the sole property of same Party.

9.5 Nothing provided herein shall prevent the Receiving Party from disclosing information which: (a) is or hereinafter becomes publicly disclosed not due to any unauthorized act or omission of the Receiving Party in respect of such information or the Confidential Information; (b) is received from or furnished to a Third Party who has a lawful right to do so; (c) is independently developed by the Receiving Party without the use of the Confidential Information; or (d) is disclosed pursuant to a requirement of law (but only if disclosure was to the extent minimally necessary to comply with such requirements of law and provided that prior to any disclosure the Receiving Party first notifies the Disclosing Party and this Disclosing Party is allowed a reasonable period of time to contest the disclosure of the Confidential Information).

10. Indemnification

10.1 Subject to the limitations hereunder, AGI will defend, indemnify and hold harmless the Client and/or Client Affiliates, as applicable, from all losses including reasonable attorneys’ fees and court costs incurred by, or claims incurred or suffered by the Client and/or, as applicable, Client Affiliates as a result of AGI’s performance under these T&Cs (or the Statement of Work or Local Purchase Order) and/or AGI’s breach of the representations, warranties or covenants set out herein.

10.2 Subject to the limitations hereunder, AGI shall defend any claim for infringement of Intellectual Property against the Client relating to these T&Cs (or the Statement of Work or Local Purchase Order), other than in respect of any Client Data and the Intellectual Property related thereto and provided that AGI receives a notice in writing of such claim or proceeding, and provided that the Client gives full disclosure of information and assistance for defense of same.

10.3 AGI does not extend the indemnity under section 10.2 to claims of infringement arising from AGI’s compliance with the Client’s instructions or specifications or the Client’s use of the Deliverables other than the Permitted Use under section 8 or if the claims related to the Client Data and the Intellectual Property related thereto. AGI shall not be responsible for any compromise or settlement made by the Client without its written consent.
10.4 The Client shall, and shall cause any of the Client Affiliates to defend, indemnify and hold harmless AGI, its subsidiaries and Advantage Affiliates from all losses, including attorneys’ fees and court costs, incurred or suffered by, or claims made against, AGI, its subsidiaries, Affiliates and Advantage Affiliates as a result of: (i) the Client’s breach of the Client’s representations, warranties or covenants under these T&Cs (or the Statement of Work or Local Purchase Order) or (ii) any claims related to the Client Data and the Intellectual Property related thereto.

11. Insurance

11.1 AGI shall take out and maintain in full force and effect all insurance required by law, together with sufficient insurance to cover such liabilities as it may incur by virtue of these T&Cs (or the Statement of Work or Local Purchase Order) or by reason of the supply of the Deliverables (including professional indemnity insurance). AGI shall, at the request of the Client, produce for its inspection a valid certificate of insurance in respect of such insurance coverage and the receipt for the then current premium. Throughout the Term, AGI shall maintain, at its sole cost and expense, the following types and amounts of insurance:

• Commercial General Liability (CGL) with coverage of: CAD $5,000,000 aggregate and per occurrence;
• CGL includes personal injury, products and completed operations;
• Non-owned automobiles with coverage of: CAD $1,000,000;
• Shared Employment Practices Liability with coverage of: CAD $5,000,000 per claim;

• Professional Liability (Errors and Omissions) with coverage of: CAD $2,000,000 per claim.

12. Termination

12.1 Either Party (the “Terminating Party”) may terminate the Agreement for any material failure to comply with the terms of the Agreement (“breach(es)”) by giving the other Party (“Defaulting Party”) thirty (30) days written notice of the termination unless the breach is capable of being remedied. If the breach is capable of being remedied, the Terminating Party shall notify the Defaulting Party in writing of such breach. Upon receipt of such notice, the Defaulting Party has thirty (30) days to remedy the breach to the satisfaction of the Terminating Party, acting reasonably, failing the non-Defaulting Party may immediately terminate the Agreement by providing the Defaulting Party written notice of such termination.

12.2 AGI reserves the right to modify or substitute Deliverables provided that such substitution or modification does not materially affect the overall performance of the Deliverables.

12.3 In no event shall AGI be liable for missing deadlines as a result of the Client’s delay in giving approval or any other breach of the Client’s obligations under the Agreement.

12.4 Each Party may terminate these T&Cs (or the Statement of Work or Local Purchase Order), without notice, in the event that the other Party becomes insolvent or bankrupt, makes an assignment in bankruptcy or insolvency under corporate reorganization law, or any other similar law, a trustee in bankruptcy or a receiver has been appointed with respect to the other Party’s assets, or a petition filed against the other Party under a bankruptcy law or any other similar law has not been discharged within ninety (90) days after its filing.

12.5 If the Client ceases to carry on its business, AGI reserves the right to terminate these T&Cs (or the Statement of Work or Local Purchase Order) effective immediately.

12.6 Either Party may terminate these T&Cs (or the Statement of Work or Local Purchase Order) without cause by giving the other Party thirty (30) days written notice of such termination, provided, however, that if the Client has executed the Statement of Work, or if a Client Affiliate has executed the Local Purchase Order or if the Client (or any Client Affiliate) has executed the Customized Studies document then the Client or Client Affiliate, as the case may be, shall not have the right to terminate these T&Cs (or the Statement of Work or Local Purchase Order) until all obligations of the Parties hereto, including all obligation of any Client Affiliate that has executed the Local Purchase Order or, as the case may be, the Customized Studies document, pursuant to such Statement of Work, or Local Purchase Order or the Customized Studies document, as the case may be, have been fulfilled.

13. Effect of Termination

13.1 Upon receipt of a notice of termination for a breach incapable of being remedied, AGI shall immediately discontinue all Services under the Agreement. The following shall apply upon the expiration or termination of these T&Cs:

(a) the expiration or termination of these T&Cs for any reason shall be without prejudice to any rights or obligations which shall have accrued before termination

(b) AGI shall return all copies of the Client Data, records or other materials and deliver to the Client all work in progress.

(c) the Client shall pay for all Deliverables, including incomplete work performed in accordance with a properly executed Statement of Work, Local Purchase Order or Customized Studies document.

13.2 Notwithstanding anything to the contrary set forth in these T&Cs, any termination of the Agreement by the Client or by any Client Affiliate shall be deemed valid only in relation to the terminating the Client or the Client Affiliate, and shall not affect the relationship between the Client and AGI, or AGI and any Client Affiliate.

14. Limitation on Liability

14.1 To the maximum extent permitted by any applicable law, in no event shall either Party (the “Initial Party”) be liable to the other Party in any manner whatsoever for any indirect, incidental, special, consequential, exemplary, punitive or aggravated damages or losses (including, without limitation, any loss of profit or loss of goodwill) howsoever caused arising out of the obligations hereunder or otherwise relating to or in connection with the Agreement, whether in contract, tort (including negligence) or any other statutory or common law basis, notwithstanding that the Initial Party has, or its directors, officers, employees, suppliers or agents have, been advised of the possibility of such damages or losses.

14.2 AGI does not guarantee or warrant any particular outcome or specific yield or result from direct or indirect interpretation of any information and data contained in the Deliverables and shall not be responsible for any loss, damage, cost, expense or any other claim arising from any acts or omissions on behalf of the Client or Client Affiliates in reliance on the results of the Deliverables or arising from the information and data contained in the Deliverables being incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form.

14.3 Subject to the foregoing additional limitations under this section, AGI shall only be liable for a claim for indemnification or otherwise hereunder made no later than one (1) year from the date that such claim arose and AGI’s maximum liability for any such claim for indemnification or otherwise hereunder shall be limited solely to, and shall under no circumstance exceed, the following sum of Deliverables (“Limited Sum”) paid by the Client: the sum of Deliverables paid for solely the first twelve (12) consecutive months starting from the Effective Date for Deliverables procured by AGI to solely the Client throughout the first twelve (12) consecutive months as of the Effective Date. The Limited Sum shall exclude the sum paid by either the Client or any Client Affiliate for Deliverables procured to the Client Affiliates by AGI or by any Advantage Affiliate, as applicable throughout the Term.

15. Dispute Resolution

15.1 If at any time during the continuance of the Agreement or after the termination thereof any dispute, difference or question (the “Dispute”) shall arise between the Parties hereto or their successors or permitted assigns concerning any matter under the Agreement, including any question regarding its existence, negotiation, interpretation, application, performance, validity, breach or termination, then the following shall apply:

(a) every such Dispute, difference or question shall be submitted to and settled by arbitration before a single arbitrator and the decisions of the arbitrator shall be final and binding on the Parties and shall not be subject to any appeal or review procedure provided that the arbitrator has proceeded in accordance with the Arbitration Act UK (1996), as amend, replaced or superseded. Such dispute shall not be made the subject matter of an action in a court by any Party unless the dispute has first been submitted to arbitration and finally determined in accordance with this section 15.1. Any such action commenced thereafter shall only be for judgment in accordance with the decision of the arbitrator and the costs incidental to the action. To the extent there is more than one dispute outstanding between the Parties, the Parties covenant and agree to consolidate any arbitration proceedings in accordance with section 8.2 into a single proceeding to the extent that such consolidation is reasonably practicable.

(b) the arbitrator shall be appointed by mutual agreement of the Parties, or in the event of failure to agree within 10 business days following delivery of the written notice to arbitrate, either Party may apply to a judge of England to appoint an arbitrator, who shall be qualified by education and experience to rule upon the particular matters to be decided.

c) the arbitrator shall be instructed that time is of the essence in the arbitration proceeding and, in any event, the arbitration award must be made within 30 days after the conclusions of the hearing of the Dispute.

(d) after written notice is given to refer the Dispute to arbitration, the Parties will meet within 15 business days of delivery of the Notice and will engage in good faith in negotiations to resolve the Dispute(s) before proceeding to arbitration.

(e) in the event that the Parties cannot resolve the Dispute(s) the arbitration shall take place in England in accordance with the provisions set out herein.

(f) the arbitration shall be conducted in English in England under the rules of the Arbitration Act UK (1996), as amend, replaced or superseded, that are not inconsistent with the terms set out in the section 15.1.

(g) the arbitrator shall decide procedural matters for the arbitration if the Parties cannot agree.

(h) the arbitrator has no authority to appoint or retain expert witnesses for any purpose unless agreed to by both Parties.

(i) the arbitrator shall proceed promptly to hear and determine the matters in dispute, after giving the Parties due notice of hearing and a reasonable opportunity to be heard. The award of the arbitrator shall be made no later than three (3) months after the appointment of the arbitrator, subject to the arbitrator’s right to extend the deadline due to significant, unavoidable and unforeseen circumstances.

(j) the arbitrator must render a written reasoned award in accordance with the substantive law. The Parties waive, and the arbitrator may not award, any punitive or exemplary damages.

(k) the Parties agree that such arbitration may be changed to a mediation by the arbitrator if the arbitrator reasonably believes that this change will expedite resolution of the dispute between the Parties.

(l) all arbitration fees and costs shall be borne equally regardless of which Party prevails, provided however, that the arbitrator, exercising equitable discretion, may award the prevailing Party all or a part of its costs of legal representation and expert witness expenses and disbursements. Any arbitrator selected to act hereunder shall be qualified by education, experience and training to pass upon the particular matter or matters in dispute.

(m) all Disputes referred to arbitration (including the scope of the agreement to arbitrate, any statute of limitations, set-off claims, conflict of laws rules, tort claims and interest claims) shall be governed by the substantive laws of England.

16. Logo/ Trade Name

During the Term of the Agreement, the Client grants AGI use of the Client logo and trade name to be used on AGI’s website, presentation materials and reporting for the sole use of confirming participating companies. Upon termination of the Agreement, all references to the Client will be removed from any AGI’s materials or publications.

17. Injunctive Relief

Each Party hereby acknowledges and agrees that any breach or violation of the intellectual property, confidentiality and/or restrictive covenant provisions of the Agreement thereof will not be susceptible to adequate relief by way of monetary damages only, and the Party that has been harmed, in addition to any other remedies enjoyed by them under the terms hereof or at law, shall be entitled to seek injunctive relief against the breaching Party in a court of competent jurisdiction.

18. Choice of Law and Jurisdiction

The Agreement shall be governed by and interpreted and construed in accordance with the laws of England as applicable thereto, without regard to principles of conflicts of law. Subject to section 15, the Parties hereby unconditionally and irrevocably submit to the jurisdiction of the Courts of England and Wales and agree that the sole and exclusive jurisdiction and venue for any proceeding or action arising out of or relating to the Agreement, or the subject matter hereof shall be brought in such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from the Agreement and any agreement or document referred to herein or delivered hereto to the extent that such provisions and laws may apply to the Agreement or to any agreement or document referred to herein or delivered hereto.

19. Notices

19.1 All notices, requests, demands or other communications (collectively, “Notices”) by the terms hereof required or permitted to be given by one Party to any other Party, or to any other person shall be given in writing by personal delivery or by registered mail, postage prepaid, email or by electronic transmission to such other Party as set out below or at such other address as may be given by such person to the other Party hereto in writing from time to time:

(a) if to AGI, at: The Advantage Group International, Inc. 40 University Avenue, Suite 903 Toronto ON M5J 1T1; Attention: Finance & Commercial email: info@advantagegroup.com;

(b) if to the Client, at the address and contact details as provided in the Statement of Work, Local Purchase Order, or another similar document

19. 2All such Notices shall be deemed to have been received when delivered or transmitted, or, if mailed, six (6) days after 12:01 a.m. on the day following the day of the mailing thereof. If any Notice shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such Notice shall be deemed to have been received six (6) days after 12:01 a.m. on the day following the resumption of normal mail service, provided that during the period that regular mail service shall be interrupted all Notices shall be given by personal delivery, via facsimile transmission or via email.

20. Entire Agreement, Amendment and Waiver

20.1 The Agreement, together with any Schedules hereto, and any attachments to such Schedules, or any other agreement, instrument or document referred to herein or delivered hereto, constitute the entire agreement between the Parties pertaining to the subject matter of the Agreement. The Agreement supersedes any previous agreement whether written or oral between the Parties relevant to the subject matter thereof. There are no other promises, representations or warranties affecting the Agreement.

20.2 Unless otherwise agreed by the Parties, in case of a conflict between the terms of the Agreement and the terms of its Schedules, the Agreement prevails.

20.3 In case of a conflict between the terms and conditions of the Agreement and any local agreement between AGI and a Client Affiliate pertaining to the subject matter hereof, the Agreement shall prevail.

20.4 The Agreement, including any Schedules, may not be modified, varied, or amended in any way other than by instrument in writing signed by authorised representatives on behalf of each of the Parties.

20.5 The Client acknowledges and agrees that the use of certain elements of the Services, such as, without limitation, the use of additional software or the use of AGI’s website, may be subject to and conditional upon the Client’s acceptance of additional terms and conditions (the “Supplemental Terms”), which may be presented for acceptance electronically. The Parties agree that Supplemental Terms may supplement or amend the Agreement.

20.6 Any additional services not specified in the Agreement requested by the Client shall be added under the Statement of Work, or requested by any Client Affiliates shall be added under the Local Purchase Order or requested by the Client or any Client Affiliates, or shall be added in the Customized Studies document, in accordance with the amendment provisions of this section.

20.7 No waiver shall be deemed to have been made by either Party unless expressed in writing and signed by the waiving Party. Any failure to exercise or delay in exercising a right or remedy under the Agreement shall not constitute a waiver of that or any other right or remedy, and no single or partial exercise of any right or remedy under the Agreement shall prevent any further exercise of that or any other right or remedy. No waiver of any breach of the Agreement shall be held to constitute a waiver of any other or subsequent breach. Except as otherwise provided herein, no term or provision of the Agreement shall be waived, and no breach shall be excused.

21. Severability and Errors

In the Agreement, stenographic and clerical errors in sales made are subject to correction. In the event that any provision or term of the Agreement is deemed unenforceable or invalid, it will automatically be adjusted as to conform to the minimum standard for validity or enforceability as declared at such time, and so adjusted, shall be deemed to be a provision or term of the original Agreement. In the event that such a provision or term cannot be so adjusted, it shall be deemed invalid or unenforceable and shall be deleted from the Agreement and the remaining provisions or terms shall continue in full force and effect as if said invalid or unenforceable provision was not part of the Agreement.

22. Force Majeure

Neither Party shall be responsible for failure to perform under the Agreement (other than with respect to a Party’s payment obligations) when its failure results from any of the following causes (“Force Majeure Events”): Acts of God or public enemies, civil war, acts of terrorism, insurrection or riot, epidemic, pandemic, coronavirus disease of 2019 or any other infectious disease, fire, flood, explosion, earthquake or serious accident, strike, labor trouble, restrictions or limitations related to any orders, requests, regulations, recommendations or instructions of any government, government department or government agency, acts or omissions of the other Party or work interruption or any cause beyond its reasonable control, except where such cause could or should have been prevented by a Party acting in a competent and reasonable manner. Each Party will promptly notify the other Party upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will utilize commercially reasonable effort to minimize any resulting delay in or interference with the performance of its obligations hereunder.

23. Remedies

All remedies provided in accordance with the Agreement are cumulative and are in addition to any and all legal rights of the Parties herein.

24. Assignment

The Client may not assign, sub-contract, sub-license or otherwise dispose of any of its rights or obligations under the Agreement without the prior written consent of AGI. Any assignment in contravention of this section 25 is void. If assignment occurs, the assignment shall not relieve the assigning Parties of its liabilities or obligations under the Agreement.

25. Binding Effect

The Agreement shall inure to the benefit of and be binding upon the Parties hereto, the Parties’ respective successors, assigns and legal representatives, as applicable.

26. Mutual Preparation

The Parties acknowledge that the Agreement has been prepared with input from and after consultation between the Parties, their legal representatives and consultants, if any, and shall be interpreted as if prepared jointly by the Parties.

27. Compliance with Laws

27.1 Both Parties recognize that any information concerning individuals about whom the other Party holds information may be subject to the requirements of the Data Protection Act 2018 (UK) and the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), and other applicable laws governing privacy. Each Party will ensure that it makes reasonable efforts to become aware of and comply with any such requirements.

27.2 Each Party will ensure that it makes reasonable efforts to become aware of and to comply with any requirements under the Sanctions and Anti-Money Laundering Act 2018 (UK).

27.3 Each Party will ensure that it makes reasonable efforts to become aware of and to comply with any requirements under the Bribery Act 2010.

28. No Additional Parties

The Client acknowledges and agrees to be responsible for any obligations of any engagement entered into between AGI and any Client Affiliate or, as applicable, between Advantage Affiliate and respective Client Affiliate, through a Local Clientship Agreement or a Local Purchase Order in accordance with the Agreement. The Client is responsible for the Client and/or Client Affiliates’ obligations and performance under the Agreement.

29. Survival

All terms and provisions of the Agreement, which by their nature are intended to extend beyond the expiration or termination of the Agreement, shall remain in full force and effect until fulfilled and/or performed and without limiting the generality of any of the foregoing, the provisions contained in sections 8, 9, 10, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29, as may be applicable, and the Schedules relating to any of the foregoing, shall survive the termination of the Agreement. Subject to the exceptions set out in section 9.5, the confidentiality provisions herein shall remain in effect during the term of the Agreement and thereafter for an indefinite period of time.

30.Fax Signatures and Counterparts

The Agreement may be executed either by original signature, or by PDF or other electronic signature attached to an e-mail, or by electronic signature and may be executed by the Parties in one or more counterparts, each of which when so executed and delivered, shall be an original and such counterparts shall together constitute one and the same instrument.

Schedules to the Services Terms & Conditions

European Union General Data Protection Regulation (Regulation (EU) 2016/679) Data Processing Schedule (“Schedule”)

The European Union General Data Protection Regulation (Regulation (EU) 2016/679) Data Processing Schedule Covering Article 28 GDPR (Processor Terms) and Incorporating Standard This Data Processing Schedule (“Schedule”) forms part of the Agreement.

The terms used in this Schedule shall have the meanings set forth in this Schedule. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as a Schedule to the Agreement. Except where the context requires otherwise, references in this Schedule to the Agreement are to the Agreement as amended by, and including, this Schedule.

1. Definitions

1.1 In this Schedule, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Company Personal Data in respect to which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect to which any Company Group Member is subject to any other Data Protection Laws;

1.1.2 “Company Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Company, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.1.3 “Company Group Member” means the Company or any Company Affiliate;

1.1.4 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Company Group Member including any Personal Data of Company Group Member customers pursuant to or in connection with the Agreement;

1.1.5 “Contracted Processor” means TGAI or a Subprocessor;

1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.7 “EEA” means the European Economic Area;

1.1.8 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.9 “GDPR” means the EU General Data Protection Regulation 2016/679;

1.1.10 “Restricted Transfer” means:

a) 1.1.10.1 a transfer of Company Personal Data from any Company Group Member to a Contracted Processor; or

b) 1.1.10.2 an onward transfer of Company Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 12 below. For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this Schedule intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following any exit by the UK from the European Union shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by Data Protection Laws of the UK or EU Data Protection Laws (as the case may be) in the absence of the Standard Contractual Clauses to be established under section 12; and (b) where a transfer of Personal Data is of a type authorised by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;

1.1.11“Services” means the services and other activities to be supplied to or carried out by or on behalf of AGI for Company Group Members pursuant to the Agreement;

1.1.12 “Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 13.4;

1.1.13 “Subprocessor” means any person (including any third party and any AGI Affiliate, but excluding an employee of AGI or any of its sub-contractors) appointed by or on behalf of AGI or any AGI Affiliate to Process Personal Data on behalf of any Company Group Member in connection with the Agreement; and

1.1.14 “AGI Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with AGI, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

2. Authority

AGI represents that AGI’s entry into this Schedule has been duly and effectively authorised.

3. Processing of Company Personal Data

3.1 AGI and each AGI Affiliate shall:

a) comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and

b) not Process Company Personal Data other than on the relevant Company Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case AGI or the relevant AGI Affiliate shall to the extent permitted by Applicable Laws inform the relevant Company Group Member of that legal requirement before the relevant Processing of that Personal Data.

3.2 Each Company Group Member:
a) instructs AGI and each AGI Affiliate (and authorises AGI and each AGI Affiliate to instruct each Subprocessor) to:

(i) process Company Personal Data; and
(j) in particular, transfer Company Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement; and

b) warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Company Affiliate

3.3 Annex 1 to this Schedule sets out certain information regarding the Contracted Processors’ Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). AGI may make reasonable amendments to Annex 1 by written notice to Company via AGI’s website from time to time as AGI reasonably considers necessary to meet those requirements.

 

4. AGI and AGI Affiliate Personnel

AGI and each AGI Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know/ access the relevant Company Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

5. Security

5.1 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, AGI and each AGI Affiliate shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

5.2 In assessing the appropriate level of security, AGI and each AGI Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

6. Subprocessing

6.1 Each Company Group Member authorises AGI and each AGI Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Agreement.
6.2 AGI and each AGI Affiliate may continue to use those Subprocessors already engaged by AGI or any AGI Affiliate as at the date of this Schedule, subject to AGI and each AGI Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.
6.3 AGI shall give prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 5 days of receipt of that notice, AGI is notified in writing of any objections (on reasonable grounds) to the proposed appointment:
Neither AGI nor any AGI Affiliate shall appoint (or disclose any Company Personal Data to) that proposed Subprocessor until reasonable steps have been taken to address the objections raised by any Company Group Member and Company has been provided with a reasonable written explanation of the steps taken:

a) if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) AGI, or (b) the relevant AGI Affiliate, or (c) the relevant intermediate Subprocessor; and on the other hand the Subprocessor; and

b) provide to Company for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Schedule) as Company may request from time to time.

6.4 AGI and each AGI Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to this Schedule in place of AGI

7. Data Subject Rights

7.1 Taking into account the nature of the Processing, AGI and each AGI Affiliate shall assist each Company Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company Group Members’ obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 AGI shall:

(a) promptly notify Company if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
(b) ensure that the Contracted Processor does not respond to that request except on the documented instructions of Company or the relevant Company Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case AGI shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

8. Personal Data Breach

8.1 AGI shall notify Company without undue delay upon AGI or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow each Company Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 AGI shall co-operate with Company and each Company Group Member and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

9. Data Protection Impact Assessment and Prior Consultation

AGI and each AGI Affiliate shall provide reasonable assistance to each Company Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of any Company Group Member 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 Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

10. Deletion or return of Company Personal Data

10.1 Subject to sections 10.2 and 10.3 AGI and each AGI Affiliate shall promptly and in any event within 15 days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), permanently delete and procure the deletion of all copies of those Company Personal Data.
10.2 Subject to section 10.3, Company may in its absolute discretion by written notice to AGI within 5 days of the Cessation Date require AGI and each AGI Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to AGI; and (b) delete and procure the deletion of all other copies of Company Personal Data Processed by any Contracted Processor. AGI and each AGI Affiliate shall comply with any such written request within 10 days of the Cessation Date.
10.3 Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that AGI and each AGI Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 AGI shall provide written certification to Company that it and each AGI Affiliate has fully complied with this section 10.

11. Audit rights

11.1 Subject to sections 11.2 and 11.3 AGI and each AGI Affiliate shall make available to each Company Group Member on request all information necessary to demonstrate compliance with this Schedule, and shall allow for and contribute to audits, including inspections, by any Company Group Member or an auditor mandated by any Company Group Member in relation to the Processing of the Company Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Company Group Members only arise under section 11.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
11.3 Company or the relevant Company Affiliate undertaking an audit shall give AGI or the relevant AGI Affiliate reasonable notice (being no less than 14 days) of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:

(a) to any individual unless he or she produces reasonable evidence of identity and authority;
(b) outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Company or the relevant Company Affiliate undertaking an audit has given notice to AGI or the relevant AGI Affiliate that this is the case before attendance outside those hours begins; or
(c) for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:
(i) Company or the relevant Company Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to AGI’s or the relevant AGI Affiliate’s compliance with this Schedule; or

(ii) a Company Group Member is required or requested 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,

where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to AGI or the relevant AGI Affiliate of the audit or inspection.

12. Restricted Transfer

12.1 Subject to section 12.3, each Company Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Company Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under section 12.1 on the commencement of the relevant Restricted Transfer.
12.3 Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of of applicable Data Protection Law.

13. General Terms

Governing law and jurisdiction

13.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
(a) the parties to this Schedule hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this Schedule, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
(b)this Schedule 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.

Order of precedence

13.2 Nothing in this Schedule reduces AGI’s or any AGI Affiliate’s obligations under the Agreement in relation to the protection of Personal Data or permits AGI or any AGI Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this Schedule and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
13.3 Subject to section 13.2, with regard to the subject matter of this Schedule, in the event of inconsistencies between the provisions of this Schedule and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Schedule, the provisions of this Schedule shall prevail.

Changes in Data Protection Laws, etc.

13.4 AGI may by at least 30 (thirty) calendar days’ written notice to Company from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law.

Severance

13.5 Should any provision of this Schedule be invalid or unenforceable, then the remainder of this Schedule shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.