1. Platform Access. Performeo grants Professional a limited, personal, non-exclusive, non-sublicensable and non-transferable right for Professional’s Authorised Users to access the Platform (including the Performeo Actor Content) via the Platform Interface to use the features and functionalities of the Platform that are a part of Professional’s Pricing Plan as part of Professional’s internal business operations.

2. Authorised Users. Professional is solely responsible for the acts and omissions of its Authorised Users. Professional shall immediately notify Performeo of any unauthorised use of any Authorised User’s usernames, passwords and other necessary credentials for the Platform (“Access Credentials”). Professional shall only be entitled to have active Access Credentials for the number of Authorised Users associated with the Professional’s Pricing Plan. Professional shall: (a) ensure that: (i) only Authorised Users access the Platform; and (ii) each Authorised User maintains the confidentiality of their Access Credentials; (b) not allow any Access Credentials allocated to an Authorised User to be used by more than one individual Authorised User; (c) immediately notify Performeo if any Authorised User ceases to be employed or otherwise engaged by Professional; and (d) all its Authorised Users adhere to the restrictions set out in Section 5 and any acceptable use policy which applies to the use of the Platform from time to time.

3. Actor Content. Subject to the terms of this Agreement, Performeo shall make Performeo Actor Content available to Professional’s Authorised User on the Platform. Subject to the terms of this Agreement (including Section 3.3), Performeo may incorporate and use the Professional Actor Content on the Platform.

4. Verification by Performeo. Performeo may from time to time perform background checks and verify that the Professional and its Authorised Users are who they claim to be and that they have a right to use the Platform in accordance with this Agreement (for example, in the case of a Professional who is a talent agent that they have the right to represent a specific actor, and if the actor is under the age of 18 that the Professional has the appropriate consent of the person with parental responsibility over the actor). Professional shall provide to Performeo promptly all evidence reasonably requested for such background checks and verification. Performeo reserves the right to suspend or terminate Professional’s or any Authorised User’s access to the Platform if the Professional fails to promptly provide such evidence reasonably satisfactory to Performeo and/or any Professional fails any such checks.

1. Beta Features. From time to time, Professional may have the option to access certain features or functionalities of the Platform made available by Performeo on a ‘beta’, pre-release or evaluation basis (“Beta Features”), including where Professional elects to participate in any Performeo beta testing programme(s) or similar. Professional may only use the Beta Features to internally evaluate and test such Beta Features and for no other purpose whatsoever. Professional shall not disclose to any third party or publish details of any Beta Feature (including details of any evaluation or testing of the Beta Feature) without Performeo’s prior written consent.

2. INAPPLICABLE PROVISIONS. With respect to Professional’s use of any Beta Features, the following Sections of this Agreement will not apply: Section 4, Section 6.4 (insofar as the limited warranty therein would otherwise be given by Performeo); furthermore, Performeo makes no commitments to Professional, and to the fullest extent permitted by law shall have no liability whatsoever to Professional, with respect to any such use.

1. Performeo Ownership. As between the Parties, Performeo retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to the Performeo Technology. Professional will not acquire any right, title or interest in or to the Performeo Technology (subject only to the limited rights expressly granted in Section 1.1, and Performeo reserves all rights therein and thereto not expressly granted in this Agreement.

2. Professional Ownership. As between the Parties, Professional retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to all Professional Content.

3. Licences to Performeo. Professional hereby grants to Performeo a non-exclusive, worldwide, royalty-free, fully paid-up, sub-licensable (through multiple tiers), irrevocable and perpetual (even in the case of expiration or termination of this Agreement for any reason) licence to copy, reproduce, modify, adapt, create derivative works of, display, communicate to the public and otherwise use the Professional Actor Content to operate and make available the Platform to users of the Platform. In addition, Professional hereby grants to Performeo a non-exclusive, worldwide, royalty-free and fully paid-up licence during the Term to use Professional Content, any Connected Applications, and any other relevant Intellectual Property Rights owned or licensed by Professional, as necessary to provide, operate and make available the Platform to Professional in accordance with this Agreement.

4. No AI Training Promise. Performeo will not use, and will not authorise any providers of Third-Party LLMs (as defined below) to use, any Professional Content to train any generative artificial intelligence systems or models designed to produce original content (such as text, images, videos, voice or actor’s likeness).

5. Performeo Improvements. Subject to Section 3.4 (No AI Training Promise) and Section 13 (Confidential Information), Professional hereby grants to Performeo a non-exclusive, worldwide, perpetual, irrevocable, royalty-free and fully paid-up licence to use Professional Content to develop, enhance or improve the Performeo Technology.

6. Usage Data. Professional acknowledges that Performeo may collect and use general usage information about use of the Platform, to be compiled into an aggregated or de-identified form, for use to: (a) enhance, develop or improve the Performeo Technology; (b) provide analytics and benchmarking services; and (c) generate and disclose statistics regarding use of the Platform, provided, however, that no Professional-only statistics will be disclosed to third parties.

1. Payments. Professional shall pay the Fees in advance in accordance with this Section 4 and any relevant terms of the Order Details.

2. Invoicing and Payment. Performeo shall issue Professional with invoices in respect of any Fees that come due and payable and Professional shall pay the amounts shown in all such invoices in full into the Performeo Bank Account (or such other account as directed by Performeo) within thirty (30) days of the invoice date, unless otherwise agreed in the Order Details.

3. Fees. All Fees: (a) shall be payable in the currency shown in the Order Details; (b) are non-cancellable and non-refundable unless and to the extent expressly provided otherwise in this Agreement; and (c) are exclusive of any and all taxes (including value added tax).

4. Fee Changes. Performeo reserves the right to increase the Fees following the Initial Term, and each Renewal Term thereafter, provided that Performeo will provide notification of any such increase at least thirty (30) days in advance of the end of the Initial Term or then-current Renewal Term (as applicable).

5. Late payments. In addition to any other rights or remedies available to Performeo, if Professional fails to pay any sums by the due date: (a) any portion of any sums that is not paid when due and payable will accrue interest equal to the higher of: (i) six percent (6%) per annum above the Bank of England’s base lending rate from time to time; or (ii) the default statutory rate applicable from time to time, accruing on a daily basis and being compounded quarterly, from the time the indebtedness arose, with interest on all overdue interest accruing at the same rate and calculated and payable in the same manner until fully paid, whether before or after judgment; and (b) Performeo may suspend the provision of any access to the Platform until payment of the sums is made by Professional in full without liability to Professional or prejudice to any other rights or remedies available to Performeo in the circumstances.

1. Prohibited Uses. Professional shall not and shall not suffer, allow, assist or enable any other person (including Authorised Users) to: (a) use the Platform, Documentation and/or any Outputs in any manner or for any purpose that is restricted by or inconsistent with this Agreement and/or applicable law or regulation; (b) use the Platform in any way which bullies, insults, intimidates, humiliates, impersonates or is defamatory of any person; (c) use the Platform in a way which is obscene, offensive, hateful, inflammatory, vulgar or objectionable; (d) use the Platform in any way which infringes any copyright, database right or trade of any other person; (e) use the Platform to generate unsolicited or unauthorised advertisements, promotional material or spam; (f) provide or otherwise make the Platform available to any third parties; (g) use the Platform, Documentation and/or any Outputs to create, market or distribute any product or service that is similar to, competitive with, or otherwise replicates or seeks to replicate any features or functionalities of, the Platform or any other part of the Performeo Technology; (h) introduce to the Performeo Technology any ‘back door’, ‘drop dead device’, ‘time bomb’, ‘Trojan horse’, ‘virus’ or ‘worm’ or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the Performeo Technology or any device, system, data or file owned or controlled by Performeo or any third party; (i) (re)create, access, inspect or derive any underlying models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)), and/or data used to train or create those models, which are part of the Platform and/or any Third-Party LLM (as defined below) (including as part of any so-called ‘model extraction’, ‘model inference’ or ‘model inversion’ techniques or similar); (j) modify, copy, resell, rent, lease, sub-licence, load, merge, adapt, translate, or create derivative works of, the Platform and/or Documentation save as expressly permitted under this Agreement; (k) contest, challenge or otherwise make any claim or take any action adverse to Performeo’s ownership of, or interest in, the Performeo Technology; (l) re-use, disseminate, copy, or otherwise use the Performeo Technology in a way that infringes, misappropriates, or violates any Intellectual Property Rights or other right of Performeo or any third party; (m) engage in competitive analysis or benchmarking of the Platform; (n) remove, alter or obscure any trade mark notice, copyright notice or any other proprietary notice from the Platform and/or Documentation; (o) circumvent, disable, or interfere with security-related, authentication-related, copy-protection or rate-limiting features of the Platform; (p) reverse engineer, decompile, unbundle or disassemble the whole or any part of the Platform, unless and to the extent unavoidably permitted by unavoidable laws of Professional’s jurisdiction for limited interoperability purposes; (q) impose an unreasonable or disproportionately large load or strain on the Platform; (r) automatically share, publish or take any action in reliance upon any such Output without prior human intervention, review and approval; or (s) take any action designed or intended to do any of the foregoing.

2. Right to Terminate. Breach of Section 5.1 constitutes a material breach of this Agreement for the purposes of Section 11.2.

3. Right to Suspend. Without prejudice to Performeo’s other rights, if the Professional breaches Section 5.1 or during any period of material breach by the Professional, Performeo may suspend or discontinue access to the Platform for the Professional (including any or all Authorised Users) without terminating this Agreement.

4. Right to Remove Professional Content. Without prejudice to Performeo’s other rights, if the Professional breaches Section 5.1, Performeo may remove or restrict access to any Professional Content on the Platform.

5. Right to Remedy. If Performeo suspends or discontinues access to the Platform, and/or removes or restrict access to Professional Content on the Platform in breach of this Agreement, Professional may have a right to bring a claim against Performeo for breach of contract.

1. Mutual Warranty. Each Party warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, the requisite power, capacity and authority to enter into this Agreement, to perform and carry out its obligations under this Agreement.

2. Performeo Limited Warranty. Performeo warrants that, during the Term, the Platform will materially conform to the then-current Documentation when used in accordance with that Documentation and the provisions of this Agreement; provided that such warranty shall not apply: (a) in the event that Professional has breached this Agreement; or (b) to any defects or issues arising as a result of: (i) any modification by any person other than Performeo; and/or (ii) use of the Platform in combination with other products, hardware, equipment, software, or data not made available by Performeo to be used with the Platform.

3. Professional Warranty. Professional warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, all necessary rights, power, consents and authority: (a) to provide to Performeo and use the Professional Content (including all Professional Actor Content, Inputs and Connected Data) and to use the Connected Applications as contemplated by this Agreement; (b) to grant Performeo the rights and licences set out in Section 3.3; and (c) in the case of a talent agent or other Professional who represents an actor on the Platform, to represent the actor and provide their Professional Actor Content to Performeo, including directly from the actor (or where the actor is under the age of 18, a person with parental responsibility over such actor).

4. Professional Indemnity. Professional agrees to indemnify Performeo on demand for, and hold harmless Performeo from and against, any and all Losses suffered or incurred by Performeo arising out of or in connection with any third party Claim brought, made or threatened against Performeo that: (a) any Professional Content, Connected Applications, and any other relevant Intellectual Property Rights owned or licensed by Professional infringes, misappropriates or violates the rights (including Intellectual Property Rights) of any third party; or (b) Professional’s breach of this Agreement (this indemnity, the “Professional Indemnity”).

5. DISCLAIMER. Except as expressly provided in this Agreement, the Platform and the Outputs are provided “as is” and to the fullest extent permitted by law, Performeo disclaims all other conditions, warranties, representations, undertakings, or other terms which might have effect between the Parties with respect to the Platform, Documentation and/or the Outputs, or otherwise be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, accuracy, reasonable skill and care, fitness for any particular purpose, non-infringement, ability to achieve a particular result or arising from course of dealing or usage of trade. Professional shall be solely responsible for Professional’s use of the Platform and any Output and for evaluating the fitness of any Output as appropriate for Professional’s specific use case or any other purpose.

Professional shall: (a) implement and maintain effective technical and organisational measures (including security policies, procedures, controls, and systems) to prevent unauthorised disclosure of Access Credentials and unauthorised access to the Platform; (b) secure any systems and devices Professional and its Authorised Users uses to access the Platform; (c) ensure that all Authorised Users of the Platform only access the Platform, using a supported version of the systems and technologies (e.g., browsers, operating systems etc.) that are listed in the Documentation as supported by Performeo from time to time; (d) ensure that it has an internet connection with adequate bandwidth for Authorised Users to access and use the Platform; (e) ensure that it maintains connectivity to the extent necessary to prevent network performance degradation; and (f) maintain all necessary back-up copies of all Professional Content, and Professional further acknowledges that it, and not Performeo, is solely responsible for doing so.

1. Third-Party LLMs.

   1. Certain optional elements of the Platform (such as the script breakdown tool) may incorporate functionality of, or enable access to, certain third-party large language models (“Third-Party LLM”).

   2. In accordance with Section 3.4 (No AI Training Promise), Performeo will not authorise providers of Third-Party LLMs to use any Professional Content to train any generative artificial intelligence systems or models designed to produce original content (such as text, images, videos, voice or actor’s likeness).

   3. The incorporation of the functionality of, or Professional’s and its Authorised Users’ ability to access, certain Third-Party LLMs via the Platform may vary depending upon the functionalities enabled or disabled by Professional through its configuration of certain features of the Platform.

   4. Professional acknowledges that by using the Platform (including through its configuration of relevant functionalities thereof, as and where applicable), it is instructing Performeo to share any Professional Content with the relevant providers of such Third-Party LLMs to the extent necessary to facilitate such functionality or access.

   5. Professional acknowledges that Professional and/or its Authorised Users may be required to enter into certain agreements with the providers of such Third-Party LLMs and in the event the relevant agreements are not entered into, Professional and/or its Authorised Users may be unable to access: (i) such Third-Party LLMs; and/or (ii) any or all of those elements or functionalities of the Platform that rely upon such Third-Party LLMs.

2. Third-Party Terms. If and to the extent one or more of the following Third-Party LLMs are used to power the Platform provided to Professional, Professional agrees to comply with the terms and conditions applicable to such Third-Party LLMs including: (a) the Services Agreement (and policies incorporated therein); and (b) subject to Section 3.4 (No AI Training Promise), any other terms and conditions which apply to the use of Third-Party LLMs used to power the Platform notified to Professional by Performeo from time to time.

3. Connected Applications. Certain elements of the Platform may permit or enable Professional and/or its Authorised Users to link or otherwise connect or integrate Professional’s Connected Applications to the Platform (including via custom or pre-built integrations). By connecting any Connected Application to the Platform, Professional (a) represents and warrants that it is entitled to link or otherwise connect the Connected Application to the Platform; and (b) instructs Performeo to access and/or share any Professional Content with the relevant providers of such Connected Applications as necessary to perform and enjoy this Agreement.

4. NO LIABILITY. Professional acknowledges that such Third-Party LLMs and any Connected Applications are not under Performeo’s control and Performeo is not responsible for those Third-Party LLMs nor Connected Applications, and Performeo will have no liability for any unavailability or failure of any Third-Party LLM or Connected Application, or any third party provider’s decision to discontinue, suspend or terminate any Third-Party LLM or Connected Application.

The Performeo Data Processing Addendum in Exhibit 1 (the “DPA”) shall apply in accordance with its terms in relation to Performeo’s Processing of Personal Data in connection with this Agreement. If and where the DPA applies in accordance with the foregoing, to the extent of any inconsistency or conflict between any provision(s) of this Agreement and any provision(s) of the DPA, the relevant provision(s) of the DPA shall govern and prevail in preference to any relevant provision(s) of this Agreement insofar as they relate to Performeo’s Processing of Personal Data in connection with this Agreement. Any capitalised terms used in this Section 9, but not defined in this Agreement, shall have the meaning given to them in the DPA.

1. Unlimited Liability. Nothing in this Agreement limits or excludes the liability of either Party: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) for any other act, omission, or liability which may not be limited or excluded by applicable law; or (d) in respect of Professional, Professional’s liability to pay Performeo any sums due and payable under this Agreement.

2. EXCLUSIONS. Subject only to Section 10.1, Performeo shall not in any circumstances be liable to Professional whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (a) any (i) loss, damage or liability (in each case whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill, anticipated savings or wasted expenditure (including management time); or (ii) special, indirect or consequential loss or damage whatsoever, in each case (i) and (ii) however arising under or in connection with this Agreement and even if Performeo was aware of the possibility that such loss or damage might be incurred; or (b) any loss, damage or liability (in each case whether direct or indirect) arising as a result of (i) Professional’s or any third party’s use of or reliance upon any Output; (ii) any loss or corruption of data or information; (iii) any breach, non-performance or any other default by Professional under this Agreement; and/or (iv) any failure by Professional to comply with any applicable law, regulation or applicable code of practice.

3. LIABILITY CAP. Subject to Section 10.1 and 10.2, Performeo’s total aggregate liability to Professional in respect of any and all Claims (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising in connection with the performance or contemplated performance of this Agreement shall under no circumstances exceed one hundred per cent (100%) of the Fees paid by Professional under this Agreement in the twelve (12) months immediately preceding the first event (or first event in any series of connected events) giving rise to a Claim against Performeo, provided that, the existence of more than one Claim or event (or series of connected events) from which liability arises shall not enlarge the limits set out in this Section 10.3.

1. Commencement and duration. Unless terminated earlier pursuant to the terms of Section 11.2, this Agreement shall: (a) commence on the Effective Date set out in the Order Details and continue for the Initial Term; and (b) automatically renew for further successive Renewal Terms at the end of the Initial Term and at the end of each Renewal Term unless either Party gives written notice to the other Party not later than twenty-one (21) days before the end of the Initial Term or then-current Renewal Term to terminate this Agreement upon the expiry of the Initial Term or then-current Renewal Term.

2. Termination. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party: (a) commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or (b) becomes insolvent or unable to pay its debts, proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order shall or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business or claims the benefit of any statutory moratorium, or undergoes any similar or equivalent process in any jurisdiction. The Parties acknowledge and agree that failure by Professional to pay any Fees when due shall constitute a ‘material breach’ for the purposes of Section 11.2(a).

1. Consequences. On termination of this Agreement: (a) notwithstanding Section 4, Professional shall promptly (and in any event within ten (10) Business Days of the date of termination) pay Performeo any outstanding balances owing to Performeo under this Agreement; (b) any and all licences, permissions and authorisations granted to Professional and/or its Authorised Users by Performeo under this Agreement will terminate automatically (for the avoidance of doubt, Professional shall cease to use, and cause the cessation of all use of, the Platform); (c) Performeo shall cease to collect Connected Data for Professional and disable any connections to Connected Applications; and (d) each Party will promptly return all Confidential Information received from the other Party, together with all copies, or certify (on request from the other Party) in writing that all such Confidential Information and copies thereof have been destroyed. Notwithstanding anything to the contrary in this Agreement, Performeo shall not be required to return or delete any Actor Data provided by or on behalf of Professional to Performeo.

2. Limitations. Any obligation to return, destroy or permanently erase Confidential Information outlined in Section 12.1 shall not apply: (a) in respect of any Confidential Information that Performeo may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; (b) in respect of any Confidential Information retained by a Third-Party LLM or Connected Application, in accordance with any relevant terms governing use thereof; and (c) to any Confidential Information that is retained by Performeo on electronic back‑up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the provisions of Section 13 shall continue to apply to Performeo’s retention of any such Confidential Information at all relevant times.

3. Survival and accrued rights. Any provision of this Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

1. Definition. In this Agreement, “Confidential Information” means any information that is clearly labelled or identified as confidential, or reasonably ought to be treated as being confidential. Confidential Information excludes any information which: (a) is or becomes publicly known other than through a breach of this Agreement; (b) was in the receiving Party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party without reference to or reliance upon the disclosing Party’s Confidential Information and that independent development can be shown by contemporary written evidence.

2. Restrictions. Neither Party shall use the other’s Confidential Information for any purpose other than the performance and enjoyment of the obligations and rights set out in this Agreement. Each Party shall keep the other’s Confidential Information confidential and, except as otherwise provided in this Agreement, shall limit access to the other’s Confidential Information to those employees, agents, representatives or subcontractors who have a genuine ‘need to know’, who are subject to confidentiality obligations no less restrictive than those set forth in this Section 13, and who have been informed of the confidential nature of such Confidential Information.

3. Permitted Disclosures. Notwithstanding the foregoing, the receiving Party may disclose the other’s Confidential Information to the limited extent that such disclosure is required by law or by the order of a court or similar regulatory or administrative body; provided that the receiving Party shall promptly notify the other Party in writing of such required disclosure and shall cooperate with the other Party if the other Party seeks a protective order in relation to any such disclosure and/or any limitations on the further use and disclosure of such Confidential Information.

1. Marketing. Professional acknowledges and agrees that Performeo may, and Professional hereby grants Performeo a right and licence to, include Professional’s name and a description of the technology and services provided to Professional under this Agreement in case study marketing content, lists of or references to any of Performeo’s clients on its website and/or in proposals, and in other marketing materials.

2. Export Controls; Sanctions. Professional shall comply with all applicable laws relating to sanctions, embargoes, trade and export controls with respect to its enjoyment, implementation and performance of this Agreement and/or any Outputs. Furthermore, Professional represents and warrants (on an ongoing basis) that: (a) neither it, nor any of its officers or shareholders, is designated on or under any of the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders, The UK Sanctions List, the consolidated list of persons, groups and entities subject to EU financial sanctions, and/or any other list of sanctioned, prohibited or restricted parties or territories from time to time (each, a “Sanctions List”); and (b) no entity or person (whether natural or legal) that controls, is controlled by, or is under common control with Professional (where “control” means the direct or indirect power to direct the affairs of an entity through voting power, economic or contractual interest or otherwise), or that is otherwise acting on behalf, or for the benefit, of Professional, is designated on or under any Sanctions List.

3. Feedback. If Professional provides feedback, suggestions or recommendations to Performeo regarding the Client Technology, including any flaws, errors, bugs, anomalies, problems with and/or suggestions, desired features or improvements relating to the Platform and its ongoing development (“Feedback”) to the extent any rights arise in or from that Feedback, Professional hereby assigns such rights to Performeo and Performeo may freely use and exploit such Feedback without any requirement of payment, royalty or other compensation.

4. Force Majeure. No Party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (including, in respect of Performeo, any failure resulting from the action or omission of a provider of any Third-Party LLM and/or any Connected Application, or any unavailability of any Third-Party LLM and/or any Connected Application, resulting from circumstances beyond Performeo’s reasonable control) (a “Force Majeure Event”). If a Force Majeure Event continues for three (3) months, the unaffected Party may terminate this Agreement by giving thirty (30) days’ written notice to the other Party.

5. Subcontracting. Performeo may engage any third-party to perform its obligations under this Agreement, provided that Performeo shall remain fully liable to Professional for performance of such obligations (subject to the exclusions and limitations outlined herein).

6. Assignment. The Professional will not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Performeo; provided that, Professional may, with not less than fifteen (15) Business Days’ prior notice to Performeo, assign this Agreement (in whole and not in part) as part of a change of control or sale of all or substantially all of Professional’s business. Performeo may at any time freely assign or transfer all or any of its rights or obligations under this Agreement. This Agreement will be binding upon the Parties and their respective successors and permitted assigns.

7. Notices. Any notice required to be given under this Agreement will be sent by email to the Notice Address set out in the Order Details. Notices will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9.00 am on the first Business Day following its dispatch). A Party may change its details given in the Order Details by giving written notice to the other Party.

8. Variation. Unless and only to the extent expressly permitted in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

9. Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

10. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.

11. No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

12. Rights of Third Parties. There are no third-party beneficiaries under this Agreement, and a person who is not a Party to this Agreement shall not be entitled to enforce any of its terms (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).

13. Governing law and jurisdiction. The Agreement and all matters arising from it (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with, the laws of England. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) (for the purposes of this Section 14.13, “Proceedings”) each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of England and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inappropriate forum provided that a judgment or order of any court may be enforced in any court of competent jurisdiction.

1. The following definitions apply to this Agreement (including its recitals, above):

   1. “Actor Content” means any Content relating to an actor’s contact and professional details, career and qualifications (including name, headshots, screenshots or screencaps, email address, phone number, representation, date of birth, physical characteristics, credits, roles, other professional experience, and qualifications such as training, awards, professional memberships and accreditations).

   2. “Authorised Users” means those of Professional’s employees or other staff who are authorised to use the Platform on Professional’s behalf under this Agreement.

   3. “Business Day” means any day which is not a Saturday, Sunday or public holiday in London, United Kingdom.

   4. “Claim” means any claim, demand, complaint, proceeding or other action.

   5. “Connected Application” means any system or application owned or controlled by Professional, which is connected to the Platform by, on behalf or at the direction of Professional (including through Professional’s linking of its account for a Connected Application with the Platform using integrations made available as part of the Platform).

   6. “Connected Data” means any Content made available within the Platform that is transmitted to the Platform via any Connected Applications.

   7. “Content” means any text, images, audio, voice, video, data, or any other information.

   8. “Documentation” means any manuals, instructions, user guides published by Performeo that describe the Platform and its use, operation, features and functionality.

   9. “Fees” means the fees for the Professional’s subscription to the Platform, as set out in the Order Details.

   10. “Inputs” means any Content input by Professional and its Authorised Users to be processed by the Platform to create Outputs.

   11. “Intellectual Property Rights” means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), so-called ‘personality rights’ and ‘publicity rights’ (including rights to natural person’s name, image and likeness), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

   12. “Losses” means all losses, liabilities, damages, costs, claims, charges, regulatory fines, demands, actions and expenses (including legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).

   13. “Order Details” means the order details set out in: (i) the Performeo webpage Professional uses to purchase a subscription for the Platform and selected Pricing Plan (including, where applicable, details set out in any email acknowledgement (e.g., an email notice or receipt of purchase) sent to Professional following conclusion of that purchase); or (ii) any order form executed by and between the Professional and Performeo governing the Professional’s purchase of a subscription for the Platform and selected Pricing Plan.

   14. “Outputs” means any output Content that is generated by the Platform based on Inputs and/or Connected Data (including any role and casting breakdowns based upon scripts and similar materials submitted as Inputs and/or Connected Data).

   15. “Performeo” means Performing Innovations Ltd, a company incorporated and registered in England and Wales with company number 16001919 whose registered office is at 71-75 Shelton Street, London, England, WC2H 9JQ.

   16. “Performeo Actor Content” means any Actor Content made available to Authorised Users on the Platform.

   17. “Performeo Technology” means collectively: (i) the Platform, as updated from time to time; (ii) any and all other technology and software owned or used by Performeo under or in connection with the Platform, software code (in any form including source code and executable or object code), neural networks, models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)) and other computer systems or technologies; (iii) any benchmarking, analytics or technical data relating to the performance or operation of the Platform; (iv) the Documentation as updated and amended from time to time; and (v) any and all Intellectual Property Rights in or to each of (i)-(iv).

   18. “Platform” means Performeo’s cloud-based software‑as‑a‑service ‘Performeo’ platform as described in the Documentation, which is owned, operated and/or licensed by Performeo, including, where the context permits, the Platform Interface.

   19. “Platform Interface” means the standard web interface via which Professional may access the Platform (being https://www.performeo.com or any successor page notified to Professional from time to time).

   20. “Pricing Plan” means the pricing plan selected by the Professional as shown in the Order Details which sets out, among others, the type of the pricing plan (e.g. talent agent or casting director), number of Authorised Users, the Fees payable, the billing frequency, the storage capacity for Professional Content, and the Platform features applicable to that Pricing Plans.

   21. “Professional” means the entity identified in the Order Details who is a counterparty to the Agreement.

   22. “Professional Actor Content” means any Actor Content owned, controlled or licensed (other than under this Agreement) by Professional which is provided to Performeo by or on behalf of the Professional, or which Performeo used or uses in connection with the development and/or operation of the Platform.

   23. “Professional Content” means Professional Actor Content, Inputs, Outputs, Connected Data and/or any other Content inputted by Authorised Users on behalf of Professional into the Platform.

   24. “Term” means any initial subscription term (an “Initial Term”) and any renewal subscription term (a “Renewal Term”), each of the duration(s) set out in the Order Details.

2. The following rules of interpretation shall apply in this Agreement: (a) to the extent not defined in this Section 15 or elsewhere in these Professional Terms, the capitalised terms set out as headings in the Order Details shall have the meaning given to them in the Order Details; (b) any reference to this Agreement terminating shall, where the context requires, include a reference to this Agreement terminating by expiry of the Term; (c) the words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term; and (d) any reference to the “Parties” means Performeo and Professional and “Party” shall mean one of them.

3. 15.3 Where applicable, to the extent of any inconsistency or conflict between any provision(s) of these Professional Terms and any provision(s) of the Order Details, the relevant provision(s) of the Order Details shall govern and prevail.

1. In this DPA, the following terms shall have the meanings set out in this Section 1 (Interpretation), unless expressly stated otherwise:

   1. “Actor Personal Data” means the Personal Data contained in the Performeo Actor Content and Professional Actor Content Processed by either Party in connection with this Agreement.

   2. “Applicable Data Protection Laws” means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to Performeo’s Processing of Professional Personal Data under the Agreement (including, as and where applicable, the GDPR and/or State Privacy Laws).

   3. “Controller” means the entity that determines the purposes and means of the Processing of Personal Data.

   4. “Data Subject” means the identified or identifiable natural person to whom Personal Data relates.

   5. “Data Subject Request” means the exercise by a Data Subject of its rights in accordance with Applicable Data Protection Laws in respect of Professional Personal Data and the Processing thereof.

   6. “EEA” means the European Economic Area.

   7. “GDPR” means, as and where applicable to Processing concerned: (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”); and/or (ii) the EU GDPR as it forms part of UK law (as amended from time to time) (“UK General Data Protection Regulation (UK GDPR).”).

   8. “Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar term defined in Applicable Data Protection Laws.

   9. “Personal Data Breach” means a breach of Performeo’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Professional Personal Data in Performeo’s possession, custody or control.

   10. “Personnel” means a person’s employees, agents, consultants, contractors or other staff.

   11. “Process”, and grammatical inflections thereof, means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means.

   12. “Processor” means an entity that that Processes Personal Data on behalf of a Controller.

   13. “Professional Personal Data” means any Personal Data Processed by Performeo or its Sub-Processor on behalf of Professional to perform the Service under the Agreement. For the avoidance of doubt, Professional Personal Data excludes Actor Personal Data.

   14. “Restricted Transfer” means the disclosure, grant of access or other transfer of Personal Data in connection with this Agreement to any person located in any country or territory outside the UK, which does not benefit from an adequacy decision from the UK Government.

   15. “Services” means those services and activities to be supplied to or carried out by or on behalf of Performeo for Professional pursuant to the Agreement (including provision of access to the Platform).

   16. “State Privacy Laws” means the comprehensive U.S. state-specific data privacy laws currently in effect and, in each case, as may be applicable to Performeo’s Processing of Customer Personal Data under the Agreement, for example, where so applicable, the California Consumer Privacy Act.

   17. “Sub-Processor” means any third party appointed by or on behalf of Performeo to Process Professional Personal Data.

   18. “Supervisory Authority” means any governmental or regulatory body with competent authority to enforce any Applicable Data Protection Laws, including: (i) in the context of the EEA and the EU GDPR, shall have the meaning given to that term in the EU GDPR; and (ii) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office.

   19. “UK Transfer Tool” means either (i) the template International Data Transfer Agreement version A.1.0 (the “UK IDTA”); or (ii) template International Data Transfer Addendum version B.1.0 (the “UK Addendum”), in each case as issued by the UK Information Commissioner’s Office and laid before the UK Parliament in accordance with s119A of the UK Data Protection Act 2018 on 2 February 2022 and in each case as revised under the relevant Mandatory Clauses thereof set out in Part 4 or Part 2 (respectively).

2. Unless otherwise defined in this DPA, all capitalized terms in this DPA shall have the meaning given to them in the Agreement.

1. Details and roles. The Parties acknowledge and agree that the details of Performeo’s Processing of Professional Personal Data (including the respective roles of the Parties relating to such Processing) are as described in Annex 1 (Data Processing Details) to the DPA.

2. General. Performeo shall not Process Professional Personal Data other than: (a) on Professional’s instructions set out in the Agreement and this DPA; or (b) as required by applicable laws, provided that in such circumstances, Performeo shall inform Professional in advance of the relevant legal requirement requiring such Processing if and to the extent Performeo is: (i) required to do so by Applicable Data Protection Laws; and (ii) permitted to do so in the circumstances. Professional instructs and authorizes Performeo to Process Professional Personal Data for the purposes set out in the Agreement (as further described in Annex 1 (Data Processing Details) to the DPA). The Agreement is a complete expression of such instructions, and Professional’s additional instructions will be binding on Performeo only pursuant to any written amendment to this DPA signed by both Parties. Where required by Applicable Data Protection Laws, if Performeo receives an instruction from Professional that, in its reasonable opinion, infringes Applicable Data Protection Laws, Performeo shall notify Professional.

3. Connected Data Sources. By its integration and use of any Connected Application as part of the Service, Professional hereby instructs Performeo to Process any Personal Data comprised in any relevant Connected Data (“Connected Personal Data”) to the fullest extent required to enable Performeo to provide the Service. In respect of any such Connected Personal Data and any Processing thereof, Professional acknowledges and agrees that: (a) Performeo acts as a Processor on behalf of Professional; (b) where relevant, any third-party provider of a Connected Application may act as a Controller in its own right or as a (sub-)Processor of Professional; (c) neither Performeo nor any third-party provider of a Connected Application acts as a (sub-)Processor of the other in respect of Performeo’s Processing of such Connected Personal Data; and (d) as between Professional and Performeo, Performeo has no obligation to agree or establish any terms, conditions or arrangements with any third-party provider of a Connected Application in relation to: (i) Performeo’s Processing of Connected Personal Data, nor (ii) any Restricted Transfer(s) initiated by Professional to or from Performeo from or to the third-party provider of the Connected Application.

1. Access to Actor Personal Data. As part of the Services, the Parties acknowledge that each Party (such Party, the “Disclosing Party”) may receive and/or have access to certain Actor Personal Data from the other Party (such Party, the “Receiving Party”).

2. Terms Applicable Processing of Actor Personal Data. In connection with any Processing of Actor Personal Data, each Party acts as a separate and independent Controller, and the Parties agree as follows: (a) each Party shall comply with Applicable Data Protection Laws as a Controller (including with respect to establishing and maintaining a legal basis for all such Processing and discharging their respective transparency obligations to relevant Data Subjects as required by Applicable Data Protection Laws); (b) the Receiving Party shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of its Processing of Actor Personal Data, implement appropriate technical and organisational measures in relation to Actor Personal Data to ensure a level of security appropriate to that risk (in respect of Performeo it shall apply the Security Measures (as defined below)); (c) if a Data Subject makes a written request to a Party to exercise their rights in relation to the Actor Personal Data that concerns Processing by the other Party, the other Party shall provide reasonable assistance requested by the first Party in relation to such request; and/or (d) the Receiving Party shall notify the Disclosing Party without undue delay upon becoming aware of a Personal Data Breach affecting the Actor Personal Data Processed by it, and provide the Disclosing Party with sufficient information to allow it to meet any obligations under Applicable Data Protection Laws to inform affected Data Subjects and/or Supervisory Authorities of such Personal Data Breach.

1. Personnel. Performeo shall take commercially reasonable steps designed to ascertain the reliability of any Performeo Personnel who Process Professional Personal Data, and shall enter into written confidentiality agreements with all Performeo Personnel who Process Professional Personal Data that are not subject to professional or statutory obligations of confidentiality.

2. Security. Performeo shall implement and maintain technical and organizational measures in relation to Professional Personal Data aligned with ISO27001 and SOC2 standards designed to protect Professional Personal Data against Personal Data Breaches (“Security Measures”), which may include where relevant having regard to relevant elements of the Service: (a) data security controls which include at a minimum logical segregation of data, access monitoring, and utilization of industry-standard encryption technologies for Professional Personal Data; (b) measures designed to ensure ongoing integrity, availability and resilience of systems and services used to Process Professional Data; (c) systems for physical and environmental security of production resources relevant to the Services, which are designed to: (i) protect information assets from unauthorised physical access; and (ii) guard against environmental hazards such as heat, fire and water damage; (d) network security controls that provide for the use of firewalls and intrusion detection systems designed to protect systems Processing Professional Personal Data from intrusion; and (e) business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.

3. Data Subject Rights. Performeo, taking into account the nature of the Processing of Professional Personal Data, shall provide Professional with such assistance as may be reasonably necessary and technically feasible to assist Professional in fulfilling its obligations to respond to Data Subject Requests. If Performeo receives a Data Subject Request relating to Processing of Professional Personal Data, Professional will be responsible for responding to any such request. Performeo shall: (a) promptly notify Professional if it receives a Data Subject Request; and (b) not respond to any Data Subject Request, other than to advise the Data Subject to submit the request to Professional, except as required by Applicable Data Protection Laws.

4. DPIAs and Consultations. If and to the extent the GDPR applies to the given Processing of Professional Personal Data, Performeo shall, taking into account the nature of the Processing and the information available to it, provide reasonable assistance to Professional with any data protection impact assessments and prior consultations with Supervisory Authorities, which are required by Article 35 or Article 36 of the GDPR (as applicable), in each case solely in relation to such Processing of Professional Personal Data by Performeo.

1. Notifications. Performeo shall notify Professional without undue delay upon Performeo’s confirmation of a Personal Data Breach affecting Professional Personal Data. Performeo shall provide Professional with information (insofar as such information is within Performeo’s possession and knowledge and does not otherwise compromise the security of any Personal Data Processed by Performeo) to allow Professional to meet its obligations under the Applicable Data Protection Laws to report the Personal Data Breach. Performeo’s notification of or response to a Personal Data Breach shall not be construed as Performeo’s acknowledgement of any fault or liability with respect to the Personal Data Breach. As between the Parties, Professional is solely responsible for complying with applicable laws (including notification laws), and fulfilling any third-party notification obligations, related to any Personal Data Breaches.

2. Consultation with Performeo. If Professional determines that a Personal Data Breach suffered by Performeo or a Sub-Processor affecting Professional Personal Data must be notified to any Supervisory Authority, any other governmental authority, any Data Subject(s), the public or others under Applicable Data Protection Laws or otherwise, to the extent such notice directly or indirectly refers to or identifies Performeo, where permitted by applicable laws, Professional agrees to: (a) notify Performeo in advance; and (b) in good faith, consult with Performeo and consider any clarifications or corrections Performeo may reasonably recommend or request to any such notice, which: (i) relate to Performeo’s involvement in or relevance to such Personal Data Breach; and (ii) are consistent with applicable laws.

1. General authorization. Professional generally authorizes Performeo to appoint Sub-Processors in accordance with this Section 6 (Sub-Processing) to Process Professional Personal Data. Information about Performeo’s Sub-Processors, including their functions and locations, is as shown in Annex 2 (Authorised Sub-Processors) (the “Sub-Processor List”). Without limitation, Professional authorizes Performeo engagement of the Sub-Processors listed on the Sub-Processor List as of the Effective Date.

2. Notification. Performeo shall give Professional prior written notice of the appointment of any proposed Sub-Processor, including reasonable details of the Processing to be undertaken by the Sub-Processor. Professional agrees that Professional is solely responsible for ensuring that it subscribes to such updates, and it shall do so. If, within ten (10) days of receipt of that notice, Professional notifies Performeo in writing of any objections to the proposed appointment (made in good faith based upon evidenced concerns that the use of that proposed Sub-Processor would cause Professional to be in material and unavoidable breach of Applicable Data Protection Laws): (a) Performeo shall use reasonable efforts to make available a commercially reasonable change in the provision of the Service, which avoids the use of that proposed Sub-Processor; and (b) where: (i) such a change cannot be made within thirty (30) days from Performeo’s receipt of Professional’s notice; (ii) no commercially reasonable change is available; and/or (iii) Professional declines to bear the cost of the proposed change, then Performeo may terminate the Agreement without liability to Professional beyond reimbursing any pre-paid fees on a pro-rated basis. If Professional does not object to Performeo’s appointment of a Sub-Processor during the objection period referred to in this Section 6.2 (Notification), Professional shall be deemed to have approved the engagement and ongoing use of that Sub-Processor.

3. Performeo Responsibilities. With respect to each Sub-Processor, Performeo shall maintain a written contract between Performeo and the Sub-Processor that includes terms which offer at least an equivalent level of protection for Professional Personal Data as those set out in this DPA (including the Security Measures). Performeo shall remain liable for any breach of this DPA caused by a Sub-Processor.

1. Restricted Transfers of Professional Personal Data. Professional acknowledges and agrees that Performeo may effect Restricted Transfers of Professional Personal Data to third parties under or in connection with this DPA, subject to Section 7.2 (Transfer Mechanisms) (including where Performeo’s use of a Sub-Processor involving a Restricted Transfer is approved in accordance with Section 6 (Sub-Processing)).

2. Transfer Mechanisms. Performeo agrees that it shall not make any Restricted Transfer in connection with Performeo’s Processing of Professional Personal Data as Professional’s Processor otherwise than in reliance on a ‘transfer mechanism’ under Chapter V of the GDPR for that Restricted Transfer, for which purpose Professional agrees that Performeo’s entry into a UK Transfer Tool with the relevant ‘importer’ shall be sufficient in relation to any Restricted Transfer.

3. Restricted Transfers of Actor Personal Data. To the extent that making Actor Personal Data available to the Professional in connection with this Agreement involves a Restricted Transfer, the Parties shall comply with their respective obligations set out in the UK Addendum which is hereby deemed incorporated into this DPA in accordance with the following: (a) the UK Addendum applies to Restricted Transfers of Actor Personal Data from Performeo (as exporter) to the Professional (as importer); (b) Table 1 of the UK Addendum is deemed populated with the details of the Parties and the “Start Date” is the Effective Date; (c) in Table 2 of the UK Addendum, the Approved EU SCCs that apply are Approved EU SCCs with only Module 1 in operation, Clause 7 (Docking Clause) not included, and without including the optional language in Clause 11; (d) Table 3 is populated with the information in Annex 1 (Data Processing Details) and the security measures implemented by the Professional shall be not less protective than the Security Measures; (d) Table 4 is completed by selecting “Exporter”; and (e) the Parties agree to be bound by the UK Mandatory Clauses in “Part 2” of the UK Addendum.

1. Information Provision and Audits. Performeo shall make available to Professional on reasonable request, such information as Performeo (acting reasonably) considers appropriate in the circumstances to demonstrate its compliance with this DPA when Processing Professional Personal Data on behalf of the Professional. Subject to Sections 8.2 (Professional Responsibilities) to 8.4 (Limitations), in the event that Professional (acting reasonably) is able to provide documentary evidence that such information is not sufficient in the circumstances to demonstrate Performeo’s compliance with this DPA, Performeo shall allow for and contribute to audits by Professional or an auditor mandated by Professional in relation to the Processing of Professional Personal Data by Performeo.

2. Professional Responsibilities. Professional shall give Performeo reasonable notice of any audit to be conducted under Section 8.1 (Information Provision and Audits) (which shall in no event be less than fourteen (14) days’ notice, unless a shorter notice period is specifically required under Applicable Data Protection Laws relevant to the audit concerned) and shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing any destruction, damage, injury or disruption to Performeo’s premises, equipment, Personnel, data, and business (including any interference with the confidentiality or security of the data of Performeo’s other customers or the availability of Performeo’s Service to such other customers).

3. Audit plans. Prior to conducting any audit, Professional must submit a detailed proposed audit plan providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Performeo will review the proposed audit plan and provide Professional with any feedback, concerns or questions (for example, any request for information that could compromise Performeo security, privacy, employment or other relevant policies). Performeo will work cooperatively with Professional to agree on a final audit plan.

4. Limitations. Performeo need not give access to its premises for the purposes of any audit under this Section 8 (Audits): (a) where a third-party audit report or certification (e.g., SOC 2, ISO 2700x, NIST or similar audit report or certification) is provided in lieu of such access (acceptance of which for this purpose not to be unreasonably withheld, delayed or conditioned by Professional); (b) to any individual unless they produce reasonable evidence of their identity; (c) to any auditor whom Performeo has not approved in advance (acting reasonably); (d) to any individual who has not entered into a non-disclosure agreement with Performeo on terms acceptable to Performeo (acting reasonably); (e) outside normal business hours at those premises; or (f) on more than one occasion in any calendar year during the term of the Agreement, except for any audits which Professional is required to carry out under Applicable Data Protection Laws or by a Supervisory Authority. Nothing in this DPA shall require Performeo to furnish more information about its Sub-Processors in connection with such audits than such Sub-Processors make generally available to their customers. Nothing in this Section 8 (Audits) shall be construed to obligate Performeo to breach any duty of confidentiality.

1. General. Upon expiration or earlier termination of the Agreement, Performeo shall return and/or delete all Professional Personal Data in Performeo’s care, custody or control in accordance Professional’s instructions as to the post-termination return and deletion of Professional Personal Data expressed in the Agreement. To the extent that deletion of any Professional Personal Data contained in any back-ups’ maintained by or on behalf of Performeo is not technically feasible within the timeframe set out in Professional’s instructions, Performeo shall: (a) securely delete such Professional Personal Data in accordance with any relevant scheduled back-up deletion routines (e.g., those contained within Performeo’s relevant business continuity and disaster recovery procedures); and (b) pending such deletion, put such Professional Personal Data beyond use.

2. Permitted retention. Notwithstanding the foregoing, Performeo may retain Professional Personal Data where required by applicable laws, provided that Performeo shall (a) maintain the confidentiality of all such Professional Personal Data and (b) Process the Professional Personal Data only as necessary for the purpose(s) and duration specified in the applicable law requiring such retention. For the avoidance of doubt, Performeo may retain and continue Processing Actor Personal Data in accordance with Section 3 (Processing of Actor Personal Data).

1. Security. Professional agrees that, without limiting Performeo’s obligations under Section 6 (Sub-Processing), Professional is solely responsible for its use of the Service, including (a) making appropriate use of the Service to maintain a level of security appropriate to the risk in respect of the Professional Personal Data; (b) securing the account authentication credentials, systems and devices Professional uses to access the Service; (c) securing Professional’s systems and devices that Performeo uses to provide the Service; and (d) backing up Professional Personal Data.

2. Compliance. Professional shall ensure: (a) that there is, and will be throughout the term of the Agreement, a valid legal basis for the Processing by Performeo of Professional Personal Data in accordance with this DPA and the Agreement (including, any and all instructions issued by Professional from time to time in respect of such Processing) for the purposes of all Applicable Data Protection Laws; and (b) that all Data Subjects have (i) been presented with all required notices and statements; and (ii) provided all required consents, in each case (i) and (ii) relating to the Processing by Performeo of Professional Personal Data. Professional shall not submit to the Service or use the Service to generate any “biometric identifiers”, “biometric information”, “biometric data” or any similar term defined in Applicable Data Protection Laws (including any laws relating to the privacy, security or Processing of such biometric information).

1. Incorporation and Application. This DPA shall be incorporated into and form part of the Agreement with effect on and from the Effective Date. Except as set out in Section 3. This DPA: (a) applies only if and to the extent Applicable Data Protection Laws govern Performeo’s Processing of Professional Personal Data in performance of the Service(s) as a ‘processor’, ‘service provider’ or similar role defined under Applicable Data Protection Laws; and (b) does not apply to Performeo’s Processing of any Personal Data for its own business/customer relationship administration purposes, its own marketing or service analytics, its own information and systems security purposes supporting the operation of the Service, nor its own legal, regulatory or compliance purposes.

2. State Privacy Laws. Annex 3 (State Privacy Laws Annex) applies if and to the extent Performeo’s Processing of Customer Personal Data on behalf of Customer under the Agreement is subject to the State Privacy Laws.

3. Costs. Except to the extent prohibited by Applicable Data Protection Laws, Professional shall compensate Performeo at Performeo’s then-current professional Service rates for, and reimburse any costs reasonably incurred by Performeo in the course of providing, cooperation, information, or assistance requested by Professional pursuant to Sections 4.3 (Data Subject Rights), 4.4 (DPIAs and Consultations) and 8 (Audits) of this DPA (provided that Performeo shall bear its own costs in the event that any audit or inspection conducted in accordance with that Section 8 (Audits) reveals any material non-compliance by Performeo with this DPA and/or Applicable Data Protection Laws), in each case, beyond providing self-service features included as part of, or in connection with, the Service.

4. LIABILITY. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TOWARDS THE OTHER PARTY, HOWSOEVER ARISING, UNDER OR IN CONNECTION WITH THIS DPA WILL UNDER NO CIRCUMSTANCES EXCEED ANY LIMITATIONS OR CAPS ON, AND SHALL BE SUBJECT TO ANY EXCLUSIONS OF, LIABILITY AND LOSS AGREED BY THE PARTIES IN THE AGREEMENT.

5. Required Updates. Each Party shall act in good faith to agree variations to this DPA that are reasonably necessary to address the requirements of Applicable Data Protection Laws from time to time (including to apply a new transfer mechanism to comply with relevant requirements of the GDPR).

6. Prevail. In the event of any conflict or inconsistency between this DPA and the Agreement, this DPA shall prevail to the extent of such conflict or inconsistency relating to the Processing of Professional Personal Data.