END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CONTAINS THE ENTIRE AGREEMENT BETWEEN AVANTI COMPUTER SYSTEMS LIMITED (“LICENSOR”) AND YOUR COMPANY (“LICENSEE”) WITH RESPECT TO THE SOFTWARE PROGRAMS ACCOMPANYING THIS AGREEMENT (“LICENSED PROGRAMS”). THE TERM “SOFTWARE” INCLUDES THE USER MANUAL AND TECHNICAL INFORMATION AVAILABLE ON THE LICENSOR’S SUPPORT PORTAL IN RESPECT OF THE SOFTWARE (“DOCUMENTATION”). READ THIS AGREEMENT CAREFULLY BEFORE CLICKING BELOW TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT OR BEFORE USING THE SOFTWARE. BY CLICKING TO ACCEPT AND DOWNLOADING, AND/OR INSTALLING, THE SOFTWARE, LICENSEE AGREES THAT (1) LICENSEE ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS, AND (2) YOU, THE INDIVIDUAL CLICKING TO ACCEPT, AS APPLICABLE, ARE AN EMPLOYEE OF THE LICENSEE AND AUTHORIZED TO ENTER INTO THIS AGREEMENT FOR AND ON BEHALF OF THE LICENSEE. IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE OR OTHERWISE CEASE USE OF THE SOFTWARE.
TO THE EXTENT LICENSEE RECEIVES A NEW RELEASE OF THE LICENSED PROGRAMS AND SUCH NEW RELEASE IS ACCOMPANIED WITH THIS AGREEMENT, LICENSEE’S USE OF THE NEW RELEASE IS GOVERNED BY THE TERMS OF THIS AGREEMENT AND ANY PREVIOUS LICENSE AGREEMENT APPLICABLE TO PREVIOUS RELEASES IS HEREBY SUPERSEDED AND IS OF NO FURTHER FORCE OR EFFECT. TO THE EXTENT LICENSEE DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT IN RESPECT OF SUCH NEW RELEASE, DO NOT INSTALL OR USE THE NEW RELEASE. INSTALLATION AND USE OF THE NEW RELEASE SHALL BE DEEMED TO BE LICENSEE’S ACCEPTANCE OF THE TERMS HEREOF.
1. Licensed Programs and License. For the purposes of this Agreement, the “Order” means the purchase agreement or other document(s) entered into between Licensee and Licensor’s authorized distributor or reseller (each, a “Partner”), to purchase the right to obtain the licenses of the Licensed Programs. In consideration of payment of all applicable licensing fees and and Licensee’s strict compliance with all the terms and conditions set forth in this Agreement and the usage parameters in the Order, Licensor hereby grants to Licensee a limited, revocable, non-sublicensable, non-transferable and non-exclusive license (“License”) to use the Licensed Programs for its internal ordinary business use, subject to the following terms and conditions. The Licensed Programs may not be used for the benefit of non-affiliated third parties unless specifically stated otherwise herein. Other license restrictions and usage parameters are described in this Agreement. For purposes of this Agreement, the license term may be perpetual or for a specified limited term as indicated in the Order.
2. Third Party Products. The Licensed Programs may include or utilize software programs or services owned by third parties (“Third Party Products”). All Third Party Products are subject to the license agreements that pertain to them and to the terms of this Agreement, except where inconsistent. Notwithstanding anything herein to the contrary, all Third Party Products are furnished by Licensor “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED.
3. Enhancements/Maintenance and Support. This Agreement applies to improvements, fixes, modifications, changes, filters, or new releases or versions of the Licensed Programs and any accompanying Documentation (“Enhancements”) that Licensor or a Partner makes generally available pursuant to maintenance and support services. Enhancements are included in the term “Licensed Programs” and “Software”. Maintenance and support can be purchased separately from a Partner. The terms and conditions applicable to the maintenance and support for the Licensed Programs are set out on Schedule “A” hereto. Licensee acknowledges and agrees that the installation of all Enhancements, including new releases of the Licensed Programs, are the responsibility of the Licensee.
4. General License Restrictions. Without the express written permission of Licensor, Licensee shall not, and shall not permit any third party to: (a) reverse engineer, disassemble, decompile, reproduce, transmit, modify, adapt, translate or create any derivative work of the Licensed Programs, in whole or in part; (b) sell, license, sublicense, publish, display, distribute, disseminate, assign or otherwise transfer or make available to a third party the Licensed Programs, in whole or in part; or (c) alter, remove or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices on or in copies of the Licensed Programs.
5. Property and Confidentiality. Licensee acknowledges and agrees that the Licensed Programs use and contain confidential and proprietary information and technology of Licensor and embody trade secrets and intellectual property of Licensor and/or its licensors protected under United States, Canadian or other copyright and other laws, and by international treaty provisions (collectively referred to as “Licensor’s Intellectual Property Rights”). The Licensed Programs and Licensor’s Intellectual Property Rights shall at all times remain the property of Licensor, including but not limited to: (a) all software code (source and object), functionality, technology, system or network architecture and user interfaces and all modifications thereto; (b) all ideas, trade secrets, inventions, patents, copyrights and other intellectual property rights with respect to the Licensed Programs; (c) all evaluations, comments, ideas and suggestions made by Licensee regarding the Licensed Programs, even if those are incorporated into subsequent versions, and (d) any modifications or derivative works developed from Licensor’s Intellectual Property Rights. Licensee shall have no right, title or interest in Licensor’s Intellectual Property Rights or the Licensed Programs, except for the limited license set forth in this Agreement. Licensor exclusively reserves all rights not explicitly granted herein. Licensor does not sell any rights in and to the Licensed Programs, but rather grants the right to use the Licensed Programs pursuant to the terms of this Agreement. Licensee shall at all times hold the Licensed Programs and the Licensor’s Intellectual Property Rights strictly in confidence as proprietary to Licensor. The Licensed Programs contain embedded and encrypted identifiers which will enable Licensor to identify the original Licensee of the Licensed Programs. Licensee agrees to be fully responsible for copies of any part of the Licensed Programs which may be found to be in the possession of parties other than Licensee and which may be identified as having been derived from the Licensed Programs supplied under this License Agreement.
6. License Fees. As consideration for the License granted to Licensee hereunder, Licensee shall pay the fees set out in the Order to the Partner. To the extent the Licensee orders maintenance and support from the Partner, fees for the maintenance and support will be set out on the Order. The Licensee shall pay any and all sales, use and other taxes resulting from this Agreement, the Order or the License, other than taxes based upon the net income of Licensor.
7. Termination. Licensor may terminate this Agreement upon written notice to Licensee if Licensee fails to comply with any provision of this Agreement. Upon termination of this Agreement, all rights and licenses of Licensee and all obligations of Licensor hereunder shall terminate. Licensee shall immediately discontinue use of the Licensed Programs and shall certify in writing to Licensor that all copies of the Licensed Programs, in whole or in part, in any form, have either been returned to Licensor or destroyed. Except as otherwise stated in this Agreement, all payments made by Licensee to the Partner under the Order are non-refundable. Notwithstanding any termination of this Agreement, Sections 2, 4, 5, 8, 9, 10, 11, and 13 of this Agreement shall survive termination, together with any other terms and conditions that by their terms survive termination. All other rights and licenses granted hereunder will cease upon termination.
8. Warranty.
(a) Limited Warranty. Licensor warrants that the Licensed Programs will, for one (1) year following the supply or downloading of the Licensed Programs (the “Warranty Period”), operate in substantial conformity with the Documentation. For any breach of this warranty the Licensee’s sole and exclusive remedy, and Licensor’s sole and exclusive liability shall be for Licensor to correct any reported failure in the Licensed Programs causing breach of this warranty or, if Licensor is unable to provide such correction, Licensee shall be entitled to recover the pre-paid portion of the fees in respect of the non-conforming functionality (excluding maintenance and support service fees paid to the Partner). This warranty shall not apply if Licensee has not applied software updates as provided by Licensor as part of active support and maintenance services provided by the Partner. The limited warranty for the Software expires at the end of the Warranty Period and shall not be extended or renewed by renewal of a limited term license or by the purchase of additional license units of the Licensed Programs.
(b) Exclusions. Other than as expressly set out herein and to the maximum extent permitted by applicable laws, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, including but not limited to implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement, all of which are expressly disclaimed. No oral or written information or advice given by Licensor, its affiliates, Partners, shall create a warranty or in any way increase the scope of this warranty. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
9. Limited Liability.
(a) THE LICENSOR, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CAUSE OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), LIABILITY OR DAMAGE OF ANY KIND FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES RECEIVED BY THE LICENSOR FOR LICENSEE’S USE OF THE LICENSED PROGRAMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DAY WHEN THE CAUSE OF ACTION ARISES.
(b) IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, LEGAL FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF EITHER PARTY’S NEGLIGENCE OR FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOSS OF BUSINESS, LOST PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, COMPUTER FAILURE OR MALFUNCTION. LOST DATA OR ANY FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE LICENSEE’S USE OF THE LICENSED PROGRAMS ARISING OUT OF, OR RESULTING FROM, (I) THE USE OF OR INABILITY TO USE THE LICENSED PROGRAMS OR (II) THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR (III) TRANSACTIONS ENTERED INTO THROUGH OR BY REASON OF THE LICENSED PROGRAMS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Because some States and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this Section may not apply to Licensee.
(c) No action against either party or any of its directors, officers, employees or agents, regardless of form (including negligence), arising out of or in any way related to this Agreement may be brought by the other party more than one (1) year after the cause of action has arisen.
(d) The limitation of liability and warranty disclaimer stated in this Agreement form an essential basis of the bargain between the parties. The parties acknowledge that the limitations set forth in this Agreement are commensurate with the amount of consideration levied in connection with the License and that, were Licensor to assume any further liability, such consideration would out of necessity, have been set much higher.
10. Licensee Indemnity. The Licensee agrees to indemnify and hold Licensor harmless from and against any loss, liability, cost, expense or damage (including reasonable legal fees) arising directly or indirectly out of any claim, suit, action or judgment brought against Licensor, or its officers, directors, shareholders, employees, agents, representatives and affiliates related to any act or omission by Licensee relating to the Licensed Programs, including but not limited to the provision by Licensee of any products or services, any representations, warranties or covenants made by Licensee, any failure by Licensee to comply with any of the terms of this Agreement, or violation by Licensee of any provincial, state, federal, foreign, or other laws or regulations or any third party rights. LICENSOR DOES NOT GUARANTEE THAT THE LICENSED PROGRAMS COMPLY WITH ANY LEGAL REQUIREMENTS THAT MAY APPLY TO LICENSEE. LICENSEE IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE LICENSED PROGRAMS COMPLIES WITH ALL LEGAL REQUIREMENTS APPLICABLE TO IT AND ITS CONTENTS, AND WILL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR, ITS AFFILIATES OR THEIR OFFICERS, DIRECTORS OR EMPLOYEES AGAINST ANY CLAIM ALLEGING THAT LICENSEE’S USE OF THE LICENSED PROGRAMS OR ANY LICENSEE CONTENT VIOLATES APPLICABLE LEGAL REQUIREMENTS, INCLUDING ALL APPLICABLE PRIVACY OR PERSONAL HEALTH LEGISLATION OR REGULATIONS.
11. Audit Rights. To confirm Licensee’s compliance with the terms and conditions of this Agreement, Licensee agrees to allow Licensor to audit Licensee’s use of the Licensed Programs, and to provide Licensor access to Licensee’s facilities and computer systems, and secure the cooperation of Licensee’s employees and consultants, as reasonably requested by Licensor in order to perform such audit, all during normal business hours. If an audit discloses that Licensee has failed to comply with one or more Licenses, and such failure to comply could have in part or in whole been avoided by Licensee having paid additional license or other fees to expand the scope of the License or Licenses, then Licensee shall promptly pay the Partner such licensing fees (at the Partner’s then current rates) and, if such unpaid License fees exceed 5% of the license fees paid to the Partner for the applicable Licensed Programs during the applicable period during which such underpayment occurred, then Licensee shall, in addition to paying the unpaid fees to the Partner, also reimburse Licensor for the full cost of such audit.
12. Marketing Consent. Licensee agrees that Licensor and its agents may use Licensee’s name, logo (subject to Licensee’s standard logo guidelines), image and employees in the creation of marketing materials such as press releases, case studies, webinars and other materials at Licensor’s discretion. Licensee will have the right to review the materials created to ensure their factual accuracy and that none of Licensee’s confidential information has been inadvertently included.
13. Non-Solicitation. During the term of this Agreement and for two (2) years after any termination of this Agreement, Licensee will not directly or indirectly, on Licensee’s own behalf or in the service of or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave the Licensor’s employ.
14. General Terms and Conditions.
(a) Amendments. Licensor may amend the terms of this Agreement from time to time without notice to Licensee and shall post the amended terms and conditions of this Agreement on the Licensor’s support portal. Please check the portal often for any posted updates. Licensee’s continued use of the Licensed Programs shall be deemed to be acceptance of such amended terms.
(b) Notice. Any questions concerning this Agreement and any notice required under this Agreement shall be sent to Licensor at the following address: 100-5560 Explorer Drive, Mississauga ON L4W 5M3, attention: Legal Department.
(c) Export Controls. The Licensed Programs are subject at all times to all applicable export control laws and regulations of Canada and the United States in force from time to time (“Export Controls”). Licensee expressly agrees that it shall not, and shall cause its representatives to agree not to export, directly or indirectly, re-export, divert, or transfer the Licensed Programs, Software and/or Documentation or direct product thereof to any destination or company restricted or prohibited by the Export Controls.
(d) U.S. Government Contracts. If the Licensed Programs are licensed for use by the U.S. Government, the Licensee agrees that the Licensed Programs have been developed entirely at private expense and are delivered as “Commercial Computer Software” (as defined in DFARS 252.227-7013) or as “Restricted Computer Software” (as defined in FAR 52.227-19).
(e) Governing Law. This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflicts of laws principles and, if the Licensed Programs were acquired within Canada, each of the parties hereto irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario. If the Licensed Programs were acquired outside Canada, each of the parties hereto irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario. The Licensee agrees that any claim or action brought by the Licensee shall be commenced in the courts of the Province of Ontario. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(f) Successors and Assigns. These terms and conditions inure to the benefit of and shall be binding upon, our respective successors or permitted assigns. Licensee shall not assign this Agreement to a third party without the written consent of Licensor including by operation of law. Any other attempted assignment or transfer shall be invalid and void.
(g) Invalidity of Terms. If any of these terms and conditions are found by a court of competent jurisdiction to be invalid, the parties hereto nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in such term or condition, and the other terms and conditions shall remain in full force and effect.
(h) Entire Contract. This Agreement and all Schedules hereto constitutes the entire contract between Licensor and Licensee with respect to the subject matter hereof, and there are no understandings, representations, conditions, guarantees, or warranties express or implied by statute usage or trade or otherwise, other than as set forth herein, or in addendum clearly identified and attached to and forming part of this Agreement.
(i) Non-Consumer Use. The Licensed Programs are made available for business purposes only, and may not be used for any personal or household purpose.
(j) Force Majeure. Licensor shall not be liable for any failure to provide the Licensed Programs, or otherwise perform its obligations under this Agreement, to the extent resulting from fire, flood, earthquake, storm, riot, insurrection, acts of terrorism or a foreign enemy or any other cause that is outside the reasonable control of Licensor.
(k) Equitable Relief. Licensee acknowledge that the unauthorized disclosure or use of the Licensed Programs, the Documentation or of Licensor’s Intellectual Property Rights in violation of this Agreement would cause irreparable injury to Licensor for which remedies at law would be inadequate. Accordingly, Licensor may seek immediate injunctive or other equitable relief in a court of competent jurisdiction in connection with any breach or alleged breach of the provisions of this Agreement.
(l) Personal Data. If Licensee is subject to the General Data Protection Regulation (EU Regulation 2016/679) and/or the United Kingdom General Data Protection Regulation (as it forms a part of the law of England, Wales, Scotland, and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018) as a data controller, the parties hereto shall comply with the Data Protection Provisions set out in Schedule “B”.
Schedule A Support and Maintenance
1. Support and Maintenance Services. To the extent set out on an Order entered into between the Partner and Licensee, Licensor shall provide the following support and maintenance services (collectively, the “Support and Services“) to Licensee on behalf of such Partner:
(a) Provide Licensee with all updated releases for the Licensed Programs, including enhancements, as are generally made available by Licensor from time to time. Installation of the releases and any other Enhancements shall be the responsibility of Licensee.
(b) Correct all material defects in the Licensed Programs diagnosed by Licensor.
(c) Telephone assistance as may be reasonably requested by Licensee between the hours of 9:00 am and 5:00pm Eastern Standard Time (problem determination, programming updates for bug fixes and general enhancements).
2. Developed Intellectual Property. All right, title, and interest in and to any and all inventions, works of authorship and mask works, including improvements, discoveries, ideas, technologies, know-how, work product, information, data, concepts, material, methods, processes, disclosures, software programs, computer language, programming aids, documentation, or any other intellectual property conceived, developed, originated, fixed or reduced to practice by Licensor or its personnel in connection with, or as a result of, the services performed hereunder (the “Work Product”), shall vest, solely and exclusively in the Licensor or, in the case of Work Product developed by Partner, the Partner in accordance with the Order entered into between the Partner and Licensee.
3. System Requirements. Licensee shall be responsible to ensure that all hardware, software, access and configuration system requirements as provided and updated by Licensor from time to time are met and maintained. If the system requirements are not met by Licensee for either servers or clients, the Licensed Programs may not be installed, be updated or otherwise behave correctly and Licensor shall bear no responsibility therefor. Further, Licensor reserves the right to update the system requirements to support enhancements and changes to the Licensed Programs.
4. Exclusions. This Support and Maintenance plan does not cover the following services:
· courier services (or other delivery services) for custom modifications, or fixes to “self-inflicted” problems;
· installation of Enhancements;
· reinstallations due to customer choice or “self-inflicted problems”, including server migrations;
· additional training;
· virus cleaning;
· file re-builds/data repair;
· hardware problems;
· network issues;
· new workstation installations;
· non-Licensor software (i.e. – operating system training or basic windows training); or
· after hours support.
Schedule B–Data Protection Provisions
1. Standard Contractual Clauses. The standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as set out in Addendum 1 (MODULE TWO), are hereby incorporated into this Agreement. Each of the parties agrees to comply with such clauses as Licensor acting as the data importer, and Licensee acting as the data exporter.
2. Instructions. Licensee shall ensure that its instructions to Licensor regarding the processing of personal data comply with all applicable data protection laws, and that the processing of personal data as per Licensee’s instructions will not cause Licensor to be in breach of any applicable data protection laws. Licensee shall be solely responsible for the accuracy, quality, and legality of (i) the personal data provided to Licensor by, or on behalf of, Licensee; (ii) how it acquired any such personal data; and (iii) the instructions it provides to Licensor regarding the processing of such personal data.
3. Quality of Personal Data. Licensee shall not provide, or make available to, Licensor any personal data in violation of this Agreement, or otherwise inappropriate for the nature of the services, and shall indemnify Licensor from all claims and losses in connection therewith.
4. Audit. Licensor shall permit Licensee to conduct audits and/or provide information pursuant to the terms set out in Addendum 1. The cost of the audit and/or provision of information or any other action performed by Licensor at the order or request of Licensee, shall be borne by Licensee.
5. Liability. The parties’ total aggregate liability arising in connection with this Schedule, whether in contract, tort, or under any theory of liability, is subject to the “Limited Liability” section of the main part of this Agreement.
6. General.
(a) In the event of a change in any applicable data protection laws, or a determination or order by a supervisory authority or competent court affecting this Schedule, or the lawfulness of any processing of personal data under this Agreement, Licensor may, at its sole discretion, make any amendments to this Schedule which are reasonably necessary to ensure continued compliance with any applicable data protection laws and/or the processing instructions herein.
(b) If there is any conflict between this Schedule and this Agreement with regard to the subject matter of this Schedule, this Schedule shall prevail to the extent of such conflict.
(c) The provisions of this Schedule are severable. If any provision (including any provision in Addendum 1) is found to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall affect only such provision, and the rest of this Schedule shall remain in full force and effect.
Addendum 1
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)
have agreed to these standard contractual clauses (hereinafter: “Clauses”).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 – Optional
Docking clause
[This clause is intentionally left blank.]
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 10 business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Germany.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Germany.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
Name: …
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: …
Signature and date: …
Role (controller/processor): Controller
Data importer(s):
Name: Avanti Computer Systems Limited
Address: 251 Consumers Road Suite 600 Toronto, ON M2J 4R3, Canada
Contact person’s name, position and contact details: Jesse Penning; Director of Software Delivery; support@avantisystems.com
Activities relevant to the data transferred under these Clauses: The data importer grants the License to the data exporter in accordance with this Agreement.
Signature and date: …
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Individual customers of the Licensee.
Categories of personal data transferred
- Personal details (Name, address, email, phone number…)
- IP address
- Date and Time of app usage
- Payment details (Account details related to payment services.)
- Accounting Details (Tax related information etc.)
- Shipping account details
- Shipping Address details.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Nil
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous
Nature of the processing
Licensor may access personal information in a manner that is ancillary to the supply and support of the Licensor’s software (on premises or hosted by Licensor). Licensor may access the information during (a) implementation of the software solution and training; (b) in connection with support calls from the Licensee; and (c) hosting of the software. Licensor does not access the data without Licensee permission, in the ordinary course of business. The Licensee self manages the personal information within the Licensee’s system and the operation of the software, and Licensor provides tools to the Licensee to facilitate the administration and removal of personal information from within the system. Information uploaded by the Licensee may include contact information, documents/images and production parameters as developed by Licensee.
Purpose(s) of the data transfer and further processing
Implementation, support, hosting of the system as described in the paragraph above.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Duration of software license or service; determined by the customer.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Subject matter and nature: Hosting of license data by Rackspace Technology
Duration: Duration of software license or service
The cloud hosting provider provides the server hardware on which the Licensor hosts the software, a “bare metal server” basis. Licensor controls the entire OS layer of the hosted solution. The cloud hosting provider does not administer the software or OS layer.
C. COMPETENT SUPERVISORY AUTHORITY
The competent supervisory authority, in accordance with Clause 13, must be (i) the supervisory authority applicable to the data exporter in its EEA country of establishment or, (ii) where the data exporter is not established in the EEA, the relevant supervisory authority in the EEA country where the data exporter’s EU representative has been appointed pursuant to Article 27(1) of the GDPR, or (iii) where the data exporter is not obligated to appoint a representative, the relevant supervisory authority in the EEA country where the data subjects relevant to the transfer are located. In regard to personal data to which the UK GDPR applies, the competent supervisory authority is the Information Commissioners Office (the “ICO”).
ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Governance, Risk, & Compliance Services | Rackspace Technology
Note that the cloud hosting provider provides the server hardware on which the Licensor hosts the software, a “bare metal server” basis. Licensor controls the entire OS layer of the hosted solution. The cloud hosting provider does not administer the software or OS layer.
ANNEX III – LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
1. Name:
Rackspace Technology
Address:
1 Fanatical Pl. City of Windcrest San Antonio, TX 78218
Contact person’s name, position and contact details:
Legal Department at:
legalnotice@rackspace.com
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised):
Note that the cloud hosting provider provides the server hardware on which the Licensor hosts the software, a “bare metal server” basis. Licensor controls the entire OS layer of the hosted solution. The cloud hosting provider does not administer the software or OS layer.