THESE TERMS AND CONDITIONS SHALL APPLY TO THE SERVICE:
1. SERVICES
1.1 During the Term, Orchid Connect shall provide the Service.
1.2 Subject to the rights of earlier termination provided for in these conditions, the Service User shall be committed to, automatically renewing, terms of 12 months.
2. PRICE AND PAYMENT
2.1 Subject to increases in accordance with these conditions, the price payable by the Service User shall be the price identified when the Service User opts for a Service via the Orchid Connect website.
2.2 The price payable by the Service User for a Service shall be fixed for 12 months from the Commencement Date, following which Orchid Connect may amend the price payable with the new price payable applying from the date notified to the Service User by Orchid Connect and which date shall be not earlier than the date falling 30 days after such notification.
2.3 Subject to condition 2.4 below, a fee of £139.99 shall apply to installations and relocations.
2.4 In respect of first installations, the fee referred to in condition 2.3 above shall not apply unless and until provision of a Service is terminated for any reason at a time earlier than 12 months from the Commencement Date.
2.5 Notwithstanding condition 2.2 above, Orchid Connect may increase the prices payable by Service Users at any time where there is an increase in the direct cost to Orchid Connect of supplying the relevant Services and which is due to any factor beyond the control of Orchid Connect.
2.6 If the Service User does not agree with any increase in the prices payable then the Service User may terminate the provision of the Service and all related obligations on both Parties by giving Orchid Connect not less than 30 days’ notice in writing.
2.7 Time of payment is of the essence. Where any sums are due are not paid in full by the due date:
2.7.1 Orchid Connect may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of Bank of England from time to time in force; interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
2.7.2 Orchid Connect may, without limiting its other rights, suspend performance of the relevant Service or all Services and the performance of any of its other obligations and, for the avoidance of doubt, such suspension shall not under any circumstances constitute a breach of these conditions. For any suspension relating to this condition, the Service User will be provided 30 days’ notice.
2.8 Payment shall be made by the Service User to Orchid Connect either by annual BACS transfer in advance or by annual or monthly direct debit, in each case to the account for which Orchid Connect shall provide the details to the Service User.
3. EQUIPMENT AND DATABASE
3.1 Unless agreed with a care provider that the care provider shall provide such maintenance, Orchid Connect shall maintain the Equipment provided by Orchid Connect in connection with its provision of the Service.
3.2 The Service User shall provide Orchid Connect with access to the Equipment in a timely and convenient manner in order for Orchid Connect to maintain the Equipment as necessary. The Equipment is not the property of the Service User and shall be returned to Orchid Connect upon termination of the Service.
3.3 Orchid Connect shall not be liable to the Service User for any impairment in the provision of the Service by Orchid Connect to the extent that such impairment arises directly or indirectly and whether in whole or in part as a result of or in connection with any abuse or misuse of the Equipment or any matters beyond the control of Orchid Connect.
3.4 The Equipment shall not be the property of the Service User and shall be returnable to Orchid Connect on demand by Orchid Connect in accordance with these terms and conditions. The Service User shall be liable to Orchid Connect for the replacement cost of any Equipment that is damaged, lost or stolen whilst in the possession of the Service User.
3.5 The Service User shall be solely responsible and liable for ensuring that Orchid Connect has the latest contact details and other applicable information in respect of the Service User as pertain to Orchid Connect’s provision of the Service to the Service User.
4. ACCESS RIGHTS
4.1 Orchid Connect shall not be liable to the Service User in respect of any damage to the Service User's premises which may occur as a direct or indirect result of actions taken by the emergency services other third parties or representatives of Orchid Connect in order to deal with an emergency situation.
5. SUSPENSION OF SERVICE
5.1 Orchid Connect may suspend performance of the Service if:
5.1.1 there is a Change in Law that increases or alters the liability of Orchid Connect in relation to such Service making a suspension necessary in the reasonable opinion of Orchid Connect; and/or
5.1.2 the Service User is in breach or default of its obligations under these conditions in relation to the provision or receipt of such Service.
5.2 Orchid Connect shall not be liable for any losses, damages, costs and expenses incurred by the Service User as a result of any such suspension and the Service User shall reimburse Orchid Connect for all losses, damages, costs and expenses reasonably incurred by Orchid Connect arising in connection with the suspension where it is due to the Service User’s breach or default.
6. DATA PROTECTION
Each party agrees that, in the performance of their respective obligations in connection with the delivery and receipt of the Service, it shall comply with the provisions of the Schedule to these conditions.
7. LIMITATION OF LIABILITY
7.1 The extent of the parties’ liability under or in connection with the Service (regardless of the potential basis in law on which such potential liability arises and whether or not caused by negligence or misrepresentation) shall be as set out in this condition 7.
7.2 Orchid Connect is providing a service that is likely to benefit Service Users from enhanced safety in independent living and wellbeing at home with reduced likelihood of admission to hospital and increased likelihood of achieving earlier discharge from hospital. However, Orchid Connect offers no guarantees in respect of such anticipated benefits (or any others) and assumes no liability in relation to the achievement or otherwise of such anticipated benefits (or any others). Orchid Connect assumes no duty of care to Service Users or any other person.
7.3 Subject to conditions 7.5 and 7.6, the total liability of Orchid Connect shall not exceed an amount equal to 100% (one hundred percent) of the total amounts paid to Orchid Connect by a Service User for the Services during the Contract Year applicable to the circumstance out of which liability arose. For the purposes of this condition “Contract Year” means each consecutive period of 12 months commencing from the Commencement Date.
7.4 Subject to condition 7.5, neither party shall be liable for consequential, indirect or special losses.
7.5 Subject to condition 7.6, neither party shall be liable for any of the following (whether direct or indirect):
7.5.1 loss of profit;
7.5.2 loss of or corruption to data;
7.5.3 loss of use;
7.5.4 loss of contract;
7.5.5 loss of opportunity;
7.5.6 loss of savings, discount or rebate (whether actual or anticipated);
7.5.7 harm to reputation or loss of goodwill.
7.6 Notwithstanding any other provision of these conditions, the liability of the parties shall not be limited in any way in respect of the following:
7.6.1 death or personal injury caused by negligence;
7.6.2 fraud or fraudulent misrepresentation; or
7.6.3 any other losses which cannot be excluded or limited by applicable law.
7.7 Orchid Connect shall not be liable for any failure, delay or incomplete performance or delivery of the Services where the same arises directly or indirectly and whether in whole or in part as a result of:
7.7.1 a breach by the Service User of its obligations; or
7.7.2 an event of Force Majeure.
8. WARRANTY
8.1 Orchid Connect warrants that the Services shall be performed in accordance with Good Industry Practice and TSA accredited standards (where applicable) including any revised codes of practice issued by the TSA from time to time as they relate to the provision of the Services.
8.2 Except as set out in this condition 8, Orchid Connect gives no warranty and makes no representations in relation to the Services and any such conditions implied by applicable legislation are expressly excluded.
9. ACCEPTANCE OF AND VARIATION TO TERMS AND CONDITIONS
9.1 A Service User accepts all of these terms and conditions upon signing up to a Service. In the absence of a notification from the Service User of their request to terminate the Service, the Service User is deemed to continue at all times with their acceptance of these terms and conditions as varied from time to time.
9.2 Subject to condition 9.3 below, Orchid Connect may, from time to time, amend the Services or the conditions relating to the provision of the Services.
9.3 In the event that Orchid Connect wishes to amend the Services or the conditions relating to the Services:
9.3.1 Orchid Connect shall notify the Service User of such intention;
9.3.2 The Service User may, within 30 days’ of such notification, choose not to accept such amendment and notify Orchid Connect of the same;
9.3.3 If the Service User duly provides such notification to Orchid Connect, the amendment will not apply to the Service User and Orchid Connect may, in its discretion, cease to provide the Service to the Service User; and
9.3.4 If the Service User does not provide the notification referred to in
9.3.2 above, the Service User shall be deemed to have accepted the amendment in full.
10. TERMINATION
10.1 At any time, Orchid Connect shall provide the Service User or the Service User’s representative (as applicable) 30 days’ notice of Orchid Connect’s termination of the Service in the event of:
10.1.1 death of the Service User;
10.1.2 transition of the Service User to 24/7 in-person care;
10.1.3 transition of the Service User to accessing a Service via a third party care provider; or
10.1.4 inability of Orchid Connect to continue providing the Service to the Service User.
10.2 Following termination of the Service as a result of an event referred to in condition 10.1 above but subject to condition 10.4.3 below, Orchid Connect shall:
10.2.1 in relation to a Service User who has paid annually in advance, reimburse the Service User in the amount represented by the pro rata balance (in respect of whole months remaining of the then current 12 month period in relation to the applicable Service) of the annual amount paid in advance by the Service User; and
10.2.2 in relation to a Service User paying by direct debit, accept cancellation of the Service User’s direct debit in relation to the applicable Service.
10.3 Either Orchid Connect or the Service User may terminate the Service at any time by giving notice in writing to the other party if:
10.3.1 the other party commits a material breach of their obligations and such breach is not remediable;
10.3.2 the other party commits a material breach of their obligations which is not remedied within 30 days of receiving written notice of such breach;
10.3.3 the other party is subject to insolvency or bankruptcy, or appointment of administrators or receivers or equivalent or the non-defaulting party reasonably believes that to be the case and in any such case such process is not discharged within 30 days; or
10.3.4 any applicable consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations or receive any benefit to which it is entitled.
10.4 On termination or expiry of the Service for any reason:
10.4.1 Orchid Connect shall notify the Service User, in an appropriate manner, that the Service has been terminated or has expired (as the case may be) and that Orchid Connect shall no longer be providing the Service;
10.4.2 Orchid Connect shall immediately stop the performance of the Services unless agreed otherwise by the parties;
10.4.3 In respect of a termination by Orchid Connect of a Service pursuant to condition 10.1.4 above as a result of an act or omission of the Service User or the Service User’s representative or as a result of any matter referred to in condition 10.3 above in respect of the Service User, Orchid Connect shall be entitled to payment in full in respect of the then current 12 month period in relation to the applicable Service.
10.4.4 without prejudice to any additional obligations, the parties shall within 10 days return any materials of the other party then in its possession or control; and
10.4.5 all rights granted to the Service User shall immediately cease.
10.5 The following terms of these terms and conditions shall survive termination, howsoever caused:
10.5.1 8 (warranty);
10.5.2 6 (data protection);
10.5.3 7 (limitation of liability);
10.5.4 12 (dispute resolution);
10.5.5 14 (notices);
10.5.6 17 and 18 (governing law and jurisdiction); and
10.5.7 Schedule (data protection), together with any other term of these terms and conditions which expressly or by implication is intended to survive termination.
11. COMPLAINTS
11.1 All Complaints shall be dealt with by Orchid Connect.
11.2 Orchid Connect will use its reasonable endeavours to resolve all Complaints promptly and efficiently.
12. DISPUTE RESOLUTION
12.1 The parties shall use all reasonable endeavours to reach a negotiated resolution in respect of any dispute arising between them out of or in connection with the provision of the Service.
12.2 Either party may issue formal legal proceedings at any time whether or not steps towards dispute resolution being undertaken between the parties directly have been completed.
13. FORCE MAJEURE
13.1 In this condition 'Force Majeure' means an event or sequence of events beyond a party's reasonable control preventing or delaying them from performing their obligations. Inability to pay is not Force Majeure.
13.2 A party shall not be liable if delayed in or prevented from performing their obligations due to Force Majeure, provided that they:
13.2.1 promptly notify the other of the Force Majeure event and its expected duration; and
13.2.2 uses reasonable endeavours to minimise the effects of that event.
13.3 If, due to Force Majeure, a party:
13.3.1 is or is reasonably likely to be unable to perform a material obligation; or
13.3.2 is or is reasonably likely to be delayed in or prevented from performing their obligations for a continuous period of more than 60 days, the other party may terminate on not less than 14 days’ written notice.
14. NOTICES
14.1 Any notice given by a party shall:
14.1.1 be in writing and in English;
14.1.2 be signed by, or on behalf of, the party giving it;
14.1.3 if in hard copy, be sent to the relevant party at the address set out in condition 14.3 below; and
14.1.4 if electronic, be sent to the email address most recently provided by the parties.
14.2 Notices may be given, and are deemed received:
14.2.1 by hand: on receipt of a signature at the time of delivery;
14.2.2 by recorded signed for post: at 9.00 am on the second Business Day after posting; or
14.2.3 by email: the same day provided that no automatic notification of non-delivery has been received.
14.3 Postal notices shall be sent to:
14.3.1 For the Service User, to the address most recently provided by the Service User; and
14.3.2 For Orchid Connect, for the attention of the Directors at: Orchid Connect, Floor 2, The Powerhouse, Queens Road, St Helier JE2 3AP.
15. SEVERANCE
15.1 If any provision of these conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these conditions shall not be affected.
15.2 If any provision of these conditions (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
16. WAIVER
16.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under these conditions shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
16.2 No single or partial exercise of any right, power or remedy provided by law or under these conditions shall prevent any future exercise of it or the exercise of any other right, power or remedy.
16.3 A waiver of any term, provision, condition or breach of these conditions shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
17. GOVERNING LAW
These conditions and any dispute or claim arising out of or in connection with them, their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Jersey.
18. JURISDICTION
The courts of Jersey shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the provision of the Service and these conditions, their subject matter or formation (including non-contractual disputes or claims).
19. DEFINITIONS AND INTERPRETATION
19.1 In these terms and conditions:
"Change in Law"
means the coming into effect of any law(s) that is not in effect at the date of these conditions and/or the modification, repeal or replacement of any law(s) after the date of these conditions;
"Commencement Date"
means the date on which the Service most recently opted for by the Service User commenced. Service Users opt via the Orchid Connect website for how soon they would like a Service to start (the Requested Commencement Date). The commencement date is the specific date notified to the Service User by Orchid Connect on or following the Requested Commencement Date on which Orchid Connect is able to commence the Service most recently opted for by the Service User. The Service User accepts that a commencement date will be valid on any date falling not later than 30 days after the applicable Requested Commencement Date;
"Complaint"
means any substantive complaint or concern made or raised by or on behalf of a Service User in connection with Orchid Connect or any Orchid Connect personnel or representative, or the provision of the Services by Orchid Connect pursuant to these conditions. For the avoidance of doubt this shall not include complaints or concerns about the service provided by third parties for which Orchid Connect is not responsible, such as the emergency services;
"Equipment"
means equipment provided to the Service User by Orchid Connect (or a care provider for the Service User) in relation to the provision of the Service by Orchid Connect;
"Good Industry Practice"
means the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or company engaged in the same type of activity under the same or similar circumstances;
“Orchid Connect”
means Orchid Connect Ltd, a company registered in Jersey with number 156182;
“Predict Service”
means Orchid Connect’s service that provides initial assessment, installation, maintenance, 24/7 alarm response, safety away from home wearable, proactive preventative care of wellbeing routine monitoring and welfare check calls, family reassurance app and periodic reviews to support needs assessments.
“Prevent Service”
means Orchid Connect’s service that provides initial assessment, installation, maintenance, safety away from home wearable, proactive preventative care of wellbeing routine monitoring and welfare check calls, family reassurance app and periodic reviews to support needs assessments.
“Protect Service”
means Orchid Connect’s service that provides initial assessment, installation, maintenance, 24/7 alarm response and family reassurance app.
"Services"
means each of the Protect Service, the Prevent Service and the Predict Service;
"Service User"
means an individual to whom (as applicable) Orchid Connect has provided, is providing or will provide a Service;
"Telecare Services Association (TSA)"
shall mean the nationally recognised standards body for the delivery of technology enabled care and support services in the United Kingdom including any successors of TSA;
"Term"
means successive, automatically renewed, periods of 12 months commencing on the Commencement Date and continuing unless terminated in accordance with these terms and conditions; and
19.2 In these conditions:
19.2.1 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
19.2.2 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
19.2.3 a reference to a gender includes each other gender;
19.2.4 words in the singular include the plural and vice versa;
19.2.5 any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
19.2.6 a reference to legislation is a reference to that legislation as amended, extended, re- enacted or consolidated from time to time; and
19.2.7 a reference to 'in writing' may include by e-mail or other means of digital communication or acknowledgment.
SCHEDULE
DATA PROTECTION
PART A OPERATIVE PROVISIONS
1. DEFINITIONS
1.1 In this Schedule, the following terms shall have the meanings set out below:
"Applicable EU Law"
means all applicable laws, statutes, regulations and codes from time to time in force;
"Connected Third Party"
means the names and contact details of next of kin of the Service User, family members, care providers, emergency contacts or key holders whom Orchid Connect may need to contact in order to provide the Services;
"Customer Data"
means all data in relation to Service Users (including personal data) which: (a) may be supplied by or on behalf of the Service User to Orchid Connect in connection with the delivery of the Service; and (b) may be obtained by Orchid Connect during the Term directly as a result of the Service User’s use of the Services.
"Data Protection Legislation"
means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and
(b) to the extent the EU GDPR applies, the law of the European Union or any applicable member state of the European Union, which relates to the protection of personal data; and
(c) to the extent that Jersey GDPR applies, the law of Jersey which relates to the protection of personal data including the Data Protection (Jersey) Law 2018.
"Data Subject Request"
means an actual or purported subject access request or notice or complaint from (or on behalf of) a data subject exercising his rights under the Data Protection Legislation;
"GDPR"
means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
"Permitted Purpose"
means the purposes for which Orchid Connect is permitted to process the Customer Data, as set out in more detail in Part B (Data Processing Particulars);
"Permitted Recipients"
means the third parties to whom Orchid Connect is permitted to disclose the Customer Data, as set out in more detail in Part B (Data Processing Particulars);
"Personal Data Breach Particulars"
means the information that must be included in a personal data breach notification;
"Personnel"
means all persons engaged or employed from time to time by Orchid Connect, including employees, consultants, contractors, agent or sub-agents that are involved in the provision of the Services;
"Regulator"
means each of the FCA, the UK Information Commissioner's Office, the Jersey Office of the Information Commisssioner and any other person in any jurisdiction, which has regulatory or supervisory authority over all or any part of the business or activities of the relevant person;
"Regulator Correspondence"
means any correspondence or communication (whether written or verbal) from a Regulator in relation to the processing of the Customer Data; and
"Security Requirements"
the requirements regarding the security of personal data, as set out in the Data Protection Legislation.
2. DATA PROTECTION
2.1 For the purposes of this Schedule, “controller”, “processor”, "personal data", "personal data breach", “data subject” and "processing" shall have the meanings set out in the Data Protection Legislation and "process" and "processed" when used in relation to the processing of personal data, shall be construed accordingly. Any reference to "personal data" includes a reference to "sensitive personal data", as applicable, whereby "sensitive personal data" means personal data that incorporates such categories of data as are listed in the Data Protection Legislation.
2.2 Each party shall comply with their obligations under the Data Protection Legislation.
3. OBLIGATIONS IN RELATION TO PROCESSING
3.1 The Service User acknowledges and agrees that Orchid Connect may need to process personal data relating to the Service User and their representatives (in Orchid Connect’s capacity as controller) in order to (as appropriate): (a) administer and provide the Services; (b) compile, dispatch and manage the payment of invoices relating to the Services; (c) manage the terms and conditions relating to the Services and resolve any disputes relating to the same; (d) respond and/or raise general queries relating to the Services; and (e) comply with their respective legal and regulatory obligations.
3.2 Orchid Connect shall process such personal data relating to the Service User and their representatives for the purposes set out in paragraph 3.1 in accordance with its privacy policies. The Service User acknowledges that Orchid Connect may be required to share personal data with their affiliates, group companies and other relevant parties, within or outside of the country of origin, in order to carry out the activities listed in paragraph 3.1, and in doing so Orchid Connect will ensure that the sharing and use of this personal data complies with applicable Data Protection Legislation.
3.3 Each party agrees to use all reasonable efforts to assist the other to comply with such obligations as are respectively imposed on them by the Data Protection Legislation. Neither party shall, by its acts or omissions, cause the other party to breach its respective obligations under the Data Protection Legislation.
4. DATA SUBJECT REQUESTS
4.1 Each party shall notify the other promptly (and in any event within three (3) business days) following its receipt of any Data Subject Request or Regulator Correspondence, which relates directly or indirectly to the processing of the Customer Data in connection with the Service or to either party's compliance with the Data Protection Legislation in connection with the Service, and together with such notices, shall provide a copy of such Data Subject Request or Regulator Correspondence and reasonable details of the circumstances giving rise to it. In addition to providing the notice referred to in this paragraph 4.1, each party shall:
4.1.1 only disclose such Customer Data in response to any Data Subject Request or Regulator Correspondence where it has obtained the other party's prior written consent; and
4.1.2 provide the other party with all reasonable co-operation and assistance required by it in relation to any such Data Subject Request or Regulator Correspondence.
5. PERSONAL DATA BREACHES AND SECURITY
5.1 Each party shall notify the other promptly (and in any event within two (2) business days) upon becoming aware of any actual or suspected, threatened or ‘near miss’ personal data breach and, together with such notice, shall provide a written description of the Personal Data Breach Particulars.
5.2 Orchid Connect shall implement and maintain appropriate technical and organisational measures which are sufficient to comply with at least the obligations imposed on it by the Security Requirements.
6. DISCLOSING PERSONAL DATA
6.1 Orchid Connect shall only disclose the Customer Data to its Personnel that are required by Orchid Connect to assist it in meeting its obligations in relation to its provision of the Service and shall ensure that no other Personnel shall have access to such Customer Data. Orchid Connect shall ensure that each member of its Personnel shall have entered into appropriate contractually-binding confidentiality undertakings.
6.2 When disclosing any personal data relating to the Service Users and the Connected Third Parties, in connection with the delivery of the Service, Orchid Connect shall:
6.2.1 ensure that it is not subject to any prohibition or restriction which would:
(a) prevent or restrict it from disclosing or transferring the personal data relating to any Service User or Connected Third Party; or
(b) prevent or restrict it from processing the personal data relating to any Service User or Connected Third party;
6.2.2 ensure that all fair processing notices have been given (and/ or, as applicable, valid consents obtained that have not been withdrawn) and are sufficient in scope and kept up- to-date in order to meet the transparency requirements to enable Orchid Connect to process personal data relating to any Service User or Connected Third Party in order to fulfil its obligations in connection with the delivery of the Service and in accordance with the Data Protection Legislation;
6.2.3 ensure that the personal data disclosed by Orchid Connect relating to the Service Users and the Connected Third Parties is:
(a) adequate, relevant and limited to what is necessary to provide the Services; and
(b) accurate and, where necessary, up to date; having taken every reasonable step to ensure that any inaccurate personal data, (having regard to what personal data is required in order to provide the Services), has been erased or rectified.
7. PROCESSOR OBLIGATIONS
7.1 Where Orchid Connect is processing Customer Data, Orchid Connect shall (in addition to its obligations in paragraph 2 (Data Protection)):
7.1.1 comply with the obligations imposed upon a processor under the Data Protection Legislation;
7.1.2 process the Customer Data only to the extent, and in such a manner, as is necessary to undertake its obligations in relation to the delivery of the Service and shall not process such Customer Data other than for the applicable Permitted Purpose;
7.1.3 unless prohibited by law, notify the Service User immediately (and in any event within two (2) business days of becoming aware of the same) if it believes (or ought reasonably to have been aware) that:
(a) it is required by Applicable EU Law to act other than in accordance with the instructions of the Service User; or
(b) any of the Service User’s instructions infringes the Data Protection Legislation;
(c) meet its obligations regarding the security of processing, including but without limitation: (i) the notification of personal data breaches to the relevant Regulator and to the affected data subjects; and (ii) the carrying out of data protection impact assessments;
(d) return to the Service User or permanently and securely delete so that it is no longer retrievable all Customer Data as requested by the Service User upon the termination of the Service unless it is required to retain the Customer Data by Applicable EU Law.
7.2 The Service User hereby grants Orchid Connect a general authorisation to subcontract the performance of its role as processor. Where Orchid Connect intends to make any additions to its subcontractors, it shall notify the Service User of any such intended changes, and if the Service User has any objections relating to data protection to such changes, it shall notify Orchid Connect in writing of its objections within thirty (30) calendar days of receipt of such notice. Orchid Connect shall ensure that the subcontractor contract (as it relates to the processing of the personal data) is on terms which are substantially the same as, and in any case no less onerous than, the terms set out in paragraph 7 of this Schedule. Notwithstanding any consent or approval given by the Service User, Orchid Connect shall remain primarily liable to the Service user for the acts, errors and omissions of any subcontractor to whom it discloses the Customer Data, and shall be responsible to the Service User for the acts, errors and omissions of such subcontractor as if they were its own acts, errors and omissions to the extent that Orchid Connect would be liable to the Service User under this Schedule for those acts, errors and omissions. If the Service User objects to the use of a new subcontractor, Orchid Connect and the Service User will seek, acting reasonably and in good faith, a mutually agreed remedy.
PART B DATA PROCESSING PARTICULARS
