- Services. For the purposes of these TOU, the “Order” means the purchase agreement or other document(s) entered into between Customer and Avanti’s authorized partner, to purchase the right to use the Services. In consideration of payment of all applicable fees set forth in the Order and Customer’s strict compliance with all the terms and conditions set forth in these TOU and the Order, Customer is entitled to use the services set forth in Schedule A (the “Services”) and selected in the Order through the Authorized Users for its internal ordinary business use, subject to the following terms and conditions. Customer shall not use the Services for the benefit of non-affiliated third parties unless specifically stated otherwise herein. Avanti reserves the right to provide the Services through use of subcontractors.
- Authorized Users and User Accounts.
- (a) Customer shall only permit its employees who have been provided with accounts to use the Services pursuant to the procedures set forth by Avanti (the “User Accounts”) for use of the Services by Customer (the “Authorized Users”).
- (b) If an Authorized User ceases to be an employee of Customer, Customer shall immediately terminate the relevant User Account.
- (c) Customer shall not, and shall cause its Authorized Users not to, share the User Accounts and the passwords associated with them (the “Passwords”) with any third party. Customer shall, and shall cause its Authorized Users to, maintain the User Accounts and the Passwords in strict confidence.
- (d) Customer and each of its Authorized Users are responsible for all activity occurring under an Authorized User’s User Account and shall abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Authorized Users’ use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal data.
- Access Requirements and Data Security.
- (a) Customer shall access and use the Services via an information system that meets the requirements (including data security requirements) set forth by Avanti that may be amended, from time to time, at the sole discretion of Avanti (the “Access Requirements”).
- (b) Avanti may decline to provide the Services if Customer accesses or uses the Services via an information system that does not meet the Access Requirements.
- Restrictions. Customer and its Authorized Users shall not: (i) copy, modify, publish, sell, export, distribute, transfer, perform, prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Service or any program that is used in the Services (the “Program”); (ii) attempt to disable, circumvent, or breach any security mechanisms used by the Services or otherwise attempt to gain unauthorized access to any portion or feature of the Services; (iii) use the Services in any way that infringes or violates any intellectual property rights or publicity/privacy rights; (iv) use the Services in violation of applicable laws; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material violative of third party intellectual property rights or privacy rights; (vi) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (viii) attempt to gain unauthorized access to the Services or its related systems or networks; (ix) use or make the Services available on a service bureau or time sharing basis; or remove, replace, alter or obscure any Avanti service marks or trademarks, any Order, warranty or disclaimer notices from the Services, system views, or user interfaces on which the Services are viewed or accessed or any related materials without Avanti’s express written consent; or (x) permit any Authorized User or other third party to do any of the foregoing.
- Property and Confidentiality. Customer acknowledges and agrees that the Services and the Programs contain confidential and proprietary information and technology of Avanti and embody trade secrets and intellectual property of Avanti and/or its licensors protected under United States, Canadian or other copyright and other laws, and by international treaty provisions (collectively referred to as “Avanti’s Intellectual Property Rights”). The Services, Programs and Avanti’s Intellectual Property Rights shall at all times remain the property of Avanti, 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 Services and the Programs; (c) all evaluations, comments, ideas, and suggestions made by Customer regarding the Services and the Programs, even if those are incorporated into subsequent versions, and (d) any modifications or derivative works developed from Avanti’s Intellectual Property Rights. Customer shall have no right, title, or interest in Avanti’s Intellectual Property Rights, Services, or Programs, except for the limited rights set forth in these TOU. Avanti exclusively reserves all rights not explicitly granted herein. Avanti does not sell any rights in and to the Services and the Programs, but rather grants the right to use the Services and the Programs pursuant to the terms of these TOU. Customer shall at all times hold the Services, Programs and Avanti’s Intellectual Property Rights strictly in confidence as proprietary to Avanti.
- Service Fees. As consideration for the Services provided to Customer hereunder, Customer shall pay the fees set out in the Order to Avanti’s authorized partner. Customer shall pay any and all sales, use and other taxes resulting from these TOU, the Order or the Services provided hereunder, other than taxes based upon the net income of Avanti.
- Client Data.
- (a) Customer shall retain ownership of the data that Customer enters into the Programs and/or the Services in the course of its authorized use of the Services and/or the Programs and stored on Avanti’s cloud environment for access by the Programs and retrieval by Customer (the “Customer Data”). Customer agrees that storage or caching of Customer Data is not an infringement of any intellectual property rights of Customer. Customer agrees that it will not store data on Avanti’s cloud environment that is subject to any third party rights without first obtaining all required authorizations and rights in writing from such third parties.
- (b) Customer shall be responsible for creating and saving back-ups of the Customer Data. Unless otherwise specifically provided for herein, Avanti shall not be liable for storing or backing up the Customer Data.
- Change of Services. Customer acknowledges and agrees that Avanti may, from time to time and at its sole discretion, change the contents of the Services without prior notice to Customer.
- Cessation of Services. Customer acknowledges and agrees that Avanti may, from time to time and at its sole discretion, cease to provide the entirety or a part of the Services by giving 90 days prior notice to Customer of such cessation. If provision of the Services in their entirety is ceased, these TOU shall automatically be terminated.
- Suspension of Services. Avanti may, directly or indirectly, and by use of a disabling device or by any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Avanti receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Avanti to do so; or (b) Avanti believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of these TOU, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these TOU or in any manner that does not comply with any instructions or requirements of Avanti; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) these TOU expire or are terminated. This Section does not limit any of Avanti’s other rights or remedies, whether at law, in equity, or under these TOU.
- Limitation of Liability.
- (a) Other than as expressly set out herein and to the maximum extent permitted by applicable laws, THE SERVICES AND PROGRAMS ARE 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 Avanti, its affiliates, dealers, distributors or partners shall create a warranty or in any way increase the scope of this warranty. AVANTI DOES NOT WARRANT THAT THE SERVICES AND PROGRAMS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
- (b) Avanti will not be liable for any temporary delay, outages, or interruptions of the Services and Programs. Further, Avanti is not liable for any delay or failure to perform its obligations under these TOU where the delay or failure results from (i) scheduled maintenance; (ii) acts or omissions of Customer or any Authorized User, regardless of whether authorized by Avanti; (c) failure in Customer’s, a third party or Authorized Users’ equipment or telecommunication lines connecting Customer and its Authorized Users to the Services; or (d) any Force Majeure event. “Force Majeure” means utility or transmission failures, communications failures, software failures, electronic failures, mechanical failures, power failures, strikes or other labor disturbances, third-party supplier failures, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters, explosion, embargo, government requirements, civil or military authorities, government regulations, acts or omissions of carriers, or other similar causes beyond the reasonable control of a party or its contractors, agents, or suppliers.
- (c) AVANTI, 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 THESE TOU, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES RECEIVED BY AVANTI FOR CUSTOMER’S USE OF THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DAY WHEN THE CAUSE OF ACTION ARISES.
- (d) 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 THESE TOU, 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 CUSTOMER’S USE OF THE SERVICES OR PROGRAMS ARISING OUT OF, OR RESULTING FROM (I) THE USE OF OR INABILITY TO USE THE SERVICES OR PROGRAMS, (II) THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR (III) TRANSACTIONS ENTERED INTO THROUGH OR BY REASON OF THE SERVICES OR PROGRAMS, EVEN IF AVANTI 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 Customer.
- (e) 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 these TOU may be brought by the other party more than one (1) year after the cause of action has arisen.
- (f) The limitation of liability and warranty disclaimer stated in these TOU form an essential basis of the bargain between the parties. The parties acknowledge that the limitations set forth in these TOU are commensurate with the amount of consideration levied in connection with the Services and that, were Avanti to assume any further liability, such consideration would out of necessity, have been set much higher.
The term of this TOU shall be the term set out in the applicable Order, subject to any rights of termination in the Order or these TOU.
- Termination. Avanti may terminate these TOU upon written notice to Customer if Customer fails to comply with any provision of these TOU. Upon termination of these TOU, all rights of Customer and all obligations of Avanti hereunder shall terminate. Customer shall immediately discontinue use of the Services and Programs. Except as otherwise stated in these TOU, all payments made by Customer to Avanti’s authorized partner under the Order are non-refundable. Notwithstanding any termination of these TOU, Sections 2(d), 5, 7, 11, 13, 14, 15 and 17 of these TOU shall survive termination, together with any other terms and conditions that by their terms survive termination. All other rights granted hereunder will cease upon termination.
- Customer Indemnity. Customer agrees to indemnify and hold Avanti 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 Avanti, or its officers, directors, shareholders, employees, agents, representatives and affiliates related to any act or omission by Customer relating to the Services and/or Programs, including but not limited to the provision by Customer of any products or services, any representations, warranties or covenants made by Customer, any failure by Customer to comply with any of the terms of these TOU, or violation by Customer of any provincial, state, federal, foreign, or other laws or regulations or any third party rights. AVANTI DOES NOT GUARANTEE THAT THE SERVICES AND/OR PROGRAMS COMPLY WITH ANY LEGAL REQUIREMENTS THAT MAY APPLY TO CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICES AND PROGRAMS COMPLIES WITH ALL LEGAL REQUIREMENTS APPLICABLE TO IT AND ITS CONTENTS, AND WILL INDEMNIFY, DEFEND AND HOLD HARMLESS AVANTI, ITS AFFILIATES OR THEIR OFFICERS, DIRECTORS OR EMPLOYEES AGAINST ANY CLAIM ALLEGING THAT CUSTOMER’S USE OF THE SERVICES AND/OR PROGRAMS OR ANY CUSTOMER CONTENT VIOLATES APPLICABLE LEGAL REQUIREMENTS, INCLUDING ALL APPLICABLE PRIVACY OR PERSONAL HEALTH LEGISLATION OR REGULATIONS.
- Audit Rights. To confirm Customer’s compliance with the terms and conditions of these TOU, Customer agrees to allow Avanti to audit Customer’s use of the Services and Programs, and to provide Avanti access to Customer’s facilities and computer systems, and secure the cooperation of Customer’s employees and consultants, as reasonably requested by Avanti in order to perform such audit, all during normal business hours. If an audit discloses that Customer has failed to comply with these TOU, and such failure to comply could have in part or in whole been avoided by Customer having paid additional service or other fees to expand the scope of the Service or Services, then Customer shall promptly pay Avanti’s authorized partner such service fees (at Avanti’s authorized partner’s then current rates) and, if such unpaid Services fees exceed 5% of the service fees paid to Avanti’s authorized partner for the applicable Services during the applicable period during which such underpayment occurred, then Customer shall, in addition to paying the unpaid fees to Avanti’s authorized partner, also reimburse Avanti for the full cost of such audit.
- Marketing Consent. Customer agrees that Avanti and its agents may use Customer’s name, logo (subject to Customer’s standard logo guidelines), image and employees in the creation of marketing materials such as press releases, case studies, webinars and other materials at Avanti’s discretion. Customer will have the right to review the materials created to ensure their factual accuracy and that none of Customer’s confidential information has been inadvertently included.
- Non-Solicitation. During the term of these TOU and for two (2) years after any termination of these TOU, Customer will not directly or indirectly, on Customer’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 Avanti’s employ.
- General Terms and Conditions.
- (a) Amendments. Avanti may amend the terms of these TOU from time to time without notice to Customer and shall post the amended terms and conditions of these TOU on Avanti’s support portal. Please check the portal often for any posted updates. Customer’s continued use of the Services or Programs shall be deemed to be acceptance of such amended terms.
- (b) Notice. Any questions concerning these TOU and any notice required under these TOU shall be sent to Avanti at the following address: 251 Consumers Road Suite 600 Toronto, ON M2J 4R3, Canada
- (c) Export Controls. The Services and 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”). Customer 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 Services and/or Programs or direct products thereof to any destination or company restricted or prohibited by the Export Controls.
- (d) U.S. Government Contracts. If the Programs are licensed for use by the U.S. Government, the Customer agrees that the 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. These TOU are 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 right to use the Services was acquired within Canada, each of the parties hereto irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario. If the right to use the Services was acquired outside Canada, each of the parties hereto irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario. Customer agrees that any claim or action brought by Customer 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 these TOU.
- (f) Successors and Assigns. These terms and conditions inure to the benefit of and shall be binding upon our respective successors or permitted assigns. Customer shall not assign these TOU to a third party without the written consent of Avanti, 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. These TOU and all Schedules hereto constitute the entire contract between Avanti and Customer 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 these TOU.
- (i) Non-Consumer Use. The Services and Programs are made available for business purposes only, and may not be used for any personal or household purpose.
- (j) Equitable Relief. Customer acknowledges that the unauthorized disclosure or use of the Services, Programs or Avanti’s Intellectual Property Rights in violation of these TOU would cause irreparable injury to Avanti for which remedies at law would be inadequate. Accordingly, Avanti 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 these TOU.
- (k) Personal Data. If Customer 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”.
The Services are comprised of Avanti’s supply of its Slingshot MIS solution on a fully hosted basis. Updates to Slingshot MIS shall be integrated into the hosted solution.
License data is hosted at a third party hosting provider, Rackspace Technology. Rackspace’s security framework is described here:
Note that the cloud hosting provider provides the server hardware on which Avanti hosts the software, a “bare metal server” basis. Avanti controls the entire OS layer of the hosted solution. The cloud hosting provider does not administer the software or OS layer.
Data Protection Provisions
- 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 these TOU. Each of the parties agrees to comply with such clauses as Avanti acting as the data importer, and Customer acting as the data exporter.
- Instructions. Customer shall ensure that its instructions to Avanti regarding the processing of personal data comply with all applicable data protection laws, and that the processing of personal data as per Customer’s instructions will not cause Avanti to be in breach of any applicable data protection laws. Customer shall be solely responsible for the accuracy, quality, and legality of (i) the personal data provided to Avanti by, or on behalf of, Customer; (ii) how it acquired any such personal data; and (iii) the instructions it provides to Avanti regarding the processing of such personal data.
- Quality of Personal Data. Customer shall not provide, or make available to, Avanti any personal data in violation of these TOU, or otherwise inappropriate for the nature of the services, and shall indemnify Avanti from all claims and losses in connection therewith.
- Audit. Avanti shall permit Customer 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 Avanti at the order or request of Customer, shall be borne by Customer.
- 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 “Limitation of Liability” section of the main part of these TOU.
- (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 these TOU, Avanti 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 these TOU 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.
STANDARD CONTRACTUAL CLAUSES
STANDARD CONTRACTUAL CLAUSES
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.
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.
(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.
(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.
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.
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
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SECTION II - OBLIGATIONS OF THE PARTIES
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.
(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.
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.
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.
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.
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.
(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.
(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.
(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
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.
Obligations of the data importer in case of access by public authorities
(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
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.
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.
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.