MASTER CUSTOMER AGREEMENT
1.8. “Fees” has the meaning set forth in Section 4.1.
1.9. “Grydd IP” means the Solution, the Documentation, and any and all Intellectual Property Rights: (a) provided to Customer or any Authorized User in connection with the foregoing; (b) that were in existence and owned by Grydd before the Effective Date; or (c) that were made or discovered by Grydd after the Effective Date other than in connection with a Project. For the avoidance of doubt, Grydd IP includes Aggregated Statistics and any information, data, or other content derived from Grydd’s monitoring of Customer’s access to or use of the Solution, but does not include Customer Data or Customer IP.
1.10. “Intellectual Property Rights” means all intellectual property rights, including patent rights, inventions, works of authorship, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights, whether or not those rights have been filed or registered under any statute or are protected or protectable under applicable law.
1.11. “Order” means a written addendum to this Agreement (a form of which is attached hereto as Exhibit A) that has been signed by both Parties and that describes:
(a) For Customer’s purchase of a subscription to the Solution: Customer’s access to and use of the Solution, including the applicable Fees, Authorized Users, Subscription Term, and other restrictions and limitations applicable to such purchase; and/or
(b) For Customer’s purchase of Professional Services: (i) the Professional Services and Deliverables to be provided by Grydd in connection with a Project; (ii) the work schedule, if any, including delivery and completion dates for those Professional Services and Deliverables; and (iii) the basis for and amount of Fees or other compensation, and any special payment terms related thereto.
1.12. “Professional Services” means any training, consulting, development, or other services which Grydd performs or agrees to perform, under an Order.
1.13. “Project” means the delivery of the Deliverables and the performance of the Professional Services to be provided by Grydd under an Order.
1.14. “Solution” means Grydd’s software-as-a-service cloud-based technology that connects all stages and players in the supply chain to enable end-to-end shipment quoting, tracking, inventory management, collaboration and predictive analytics and business intelligence.
1.15. “Subscription Term” means the period of time during which Customer may access and use the Solution as described in the applicable Order.
1.16. “Third-Party Products” means any third-party products provided with or incorporated into the Solution.
2. Access and Use of Solution.
2.1. Placement and Acceptance of Orders; Effect of Orders. Customer may request subscriptions to the Solution by submitting to Grydd an Order executed by Customer. Each Order will be numbered sequentially. Customer may revoke an Order at any time before Grydd accepts that Order. Grydd is not obligated to accept any Order and may accept an Order only by executing that Order and returning it to Customer. Upon Grydd’s acceptance of an Order in accordance with this Section 2.1, Customer will be bound to purchase, and Grydd will be bound to provide, subscription for the Solution as described in that Order, subject to the terms and conditions of this Agreement and the Order.
2.2. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Grydd hereby grants Customer a non-exclusive, non-transferable right to access and use the Solution during the relevant Subscription Term, solely for use by Authorized Users in accordance with the terms and conditions set forth in an Order signed by both Parties. Such use is limited to Customer’s internal use. Grydd shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Solution. The total number of Authorized Users will not exceed the number set forth in the Order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.3. Documentation License. Subject to the terms and conditions contained in this Agreement, Grydd hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Subscription Term set forth in an Order, solely for Customer’s internal business purposes in connection with its use of the Solution.
2.4. Use Restrictions. Customer shall not use the Solution for any purposes beyond the scope of the access granted in this Agreement and the applicable Order. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Solution or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Solution or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Solution, in whole or in part; (d) remove any proprietary notices from the Solution or Documentation; (e) use the Solution or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; or (f) use the Solution in a manner that exceeds or deviates from the use permitted under the applicable Order.
2.5. Reservation of Rights. Grydd reserves all rights not expressly granted to Customer in this Agreement or any Order. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement or any Order grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Grydd IP.
2.6. Suspension. Notwithstanding anything to the contrary in this Agreement, Grydd may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Solution if: (a) Grydd reasonably determines that (i) there is a threat or attack on any of the Grydd IP; (ii) Customer’s or any Authorized User’s use of the Grydd IP disrupts or poses a security risk to the Grydd IP or to any other customer or vendor of Grydd; (iii) Customer, or any Authorized User, is using the Grydd IP for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Grydd’s provision of the Solution to Customer or any Authorized User is prohibited by applicable law; (b) any vendor of Grydd has suspended or terminated Grydd’s access to or use of any third-party services or products required to enable Customer to access the Solution; or (c) in accordance with Section 4.1 (any such suspension described in subclause (a), (b), or (c), a “Solution Suspension”). Grydd shall use commercially reasonable efforts to provide written notice of any Solution Suspension to Customer and to provide updates regarding resumption of access to the Solution following any Solution Suspension. Grydd shall use commercially reasonable efforts to resume providing access to the Solution as soon as reasonably possible after the event giving rise to the Solution Suspension is cured. Grydd will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Solution Suspension.
2.7. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Grydd may monitor Customer’s use of the Solution and collect and compile Aggregated Statistics. As between Grydd and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Grydd. Customer acknowledges that Grydd may compile Aggregated Statistics based on Customer Data input into the Solution. Customer agrees that Grydd may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
2.8. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Solution and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement or the applicable Order. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement or an Order if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s and the Order’s provisions as applicable to such Authorized User’s use of the Solution, and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Grydd may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
2.9. Service Levels and Support. Subject to the terms and conditions of this Agreement, Grydd shall use commercially reasonable efforts to make the Solution available in accordance with the service levels set out in Exhibit B. This Agreement does not entitle Customer to any support for the Solution.
3. Professional Services.
3.1. Placement and Acceptance of Orders; Effect of Orders. Customer may request Professional Services by submitting to Grydd an Order executed by Customer. Each Order will be numbered sequentially. Customer may revoke an Order at any time before Grydd accepts that Order. Grydd is not obligated to accept any Order for Professional Services and may accept an Order only by executing that Order and returning it to Customer. Upon Grydd’s acceptance of an Order in accordance with this Section 3.1, Customer will be bound to purchase, and Grydd will be bound to provide, the Deliverables and Professional Services described in that Order, subject to the terms and conditions of this Agreement and the Order.
3.2. Changes in the Professional Services. Customer may at any time notify Grydd in writing that it wishes to modify the description of Professional Services or the timetable for performance, or change the Deliverables, in which case the Parties may amend the applicable Order as described in Section 11.4, which amendment will include an increase in the applicable compensation payable to Grydd if a change in Professional Services, Deliverables, or work schedule increases the cost of performance.
4. Fees and Payment.
4.1. Fees. Grydd will invoice Customer for, and Customer shall pay to Grydd the fees (“Fees”) set forth in the applicable Order without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order. If Customer fails to make any payment
when due, without limiting Grydd’s other rights and remedies: (a) Grydd may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Grydd for all reasonable costs incurred by Grydd in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 10 days or more, Grydd may suspend performance of any Order, or suspend Customer’s and its Authorized Users’ access to any portion or all of the Solution until such amounts are paid in full.
4.2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Grydd’s income.
4.3. Expenses. Grydd will invoice Customer for, and Customer will reimburse Grydd for, all reasonable costs and expenses incurred in performing in delivering the Solution, or performing the Professional Services, including all travel-related costs and expenses.
4.4. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Grydd may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Grydd with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4.1. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
5. Confidential Information; Data Processing.
5.1. Confidentiality. From time to time during the Term, either Party (“Disclosing Party”) may disclose or make available to the other Party (“Receiving Party”) information about its business affairs, products, confidential Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential
Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5.2. Data Processing. The Parties agree to comply with and be bound by the Data Processing Addendum attached as Exhibit C with respect to the processing of Personal Data (as defined in Exhibit C) under this Agreement.
6. Intellectual Property Rights.
6.1. Grydd IP; Developments. Customer acknowledges that, as between Customer and Grydd, Grydd owns all right, title, and interest, including all Intellectual Property Rights, in and to the Grydd IP and all Developments and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products. Unless provided otherwise in an Order for Professional Services, Grydd hereby grants to Customer a nonexclusive, non-transferrable, royalty free, perpetual, limited license to use the Developments and Grydd IP to the extent necessary for Customer to use the Deliverables and Professional Services, solely for Customer’s internal business purposes, as contemplated by the Order.
6.2. Customer IP; Customer Data. Grydd acknowledges that, as between Grydd and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer IP and Customer Data. Customer hereby grants to Grydd a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer IP and Customer Data and perform all acts with respect to the Customer IP and Customer Data as may be necessary for Grydd to provide the Solution and Professional Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
6.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Grydd by mail, email, telephone, or otherwise, suggesting or recommending changes to the Grydd IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Grydd is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Grydd on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Grydd is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Grydd is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
7.1. Limited Warranty. Grydd warrants that the Solution will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Grydd does not make any representations or guarantees regarding uptime or availability of the Solution unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Customer’s sole remedies and Grydd’s sole liability under the limited warranty set forth in this Section 7.1). THE FOREGOING WARRANTY DOES NOT APPLY, AND GRYDD STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5.2. Data Processing. The Parties agree to comply with and be bound by the Data Processing Addendum attached as Exhibit C with respect to the processing of Personal Data (as defined in Exhibit C) under this Agreement.
6. Intellectual Property Rights.
6.1. Grydd IP; Developments. Customer acknowledges that, as between Customer and Grydd, Grydd owns all right, title, and interest, including all Intellectual Property Rights, in and to the Grydd IP and all Developments and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products. Unless provided otherwise in an Order for Professional Services, Grydd hereby grants to Customer a nonexclusive, non-transferrable, royalty free, perpetual, limited license to use the Developments and Grydd IP to the extent necessary for Customer to use the Deliverables and Professional Services, solely for Customer’s internal business purposes, as contemplated by the Order.
6.2. Customer IP; Customer Data. Grydd acknowledges that, as between Grydd and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer IP and Customer Data. Customer hereby grants to Grydd a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer IP and Customer Data and perform all acts with respect to the Customer IP and Customer Data as may be necessary for Grydd to provide the Solution and Professional Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
6.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Grydd by mail, email, telephone, or otherwise, suggesting or recommending changes to the Grydd IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Grydd is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Grydd on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Grydd is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Grydd is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
7.1. Limited Warranty. Grydd warrants that the Solution will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Grydd does not make any representations or guarantees regarding uptime or availability of the Solution unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Customer’s sole remedies and Grydd’s sole liability under the limited warranty set forth in this Section 7.1). THE FOREGOING WARRANTY DOES NOT APPLY, AND GRYDD STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
7.2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, THE GRYDD IP, THE SOLUTION, AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND GRYDD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GRYDD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, GRYDD MAKES NO WARRANTY OF ANY KIND THAT THE GRYDD IP, SOLUTION, PROFESSIONAL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification.
8.1. Grydd Indemnification.
(a) Grydd shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Claim”) that the Solution, or any use of the Solution in accordance with this Agreement, infringes or misappropriates such third party’s United States Intellectual Property Rights, provided that Customer promptly notifies Grydd in writing of the Claim, cooperates with Grydd, and allows Grydd sole authority to control the defense and settlement of such Claim.
(b) If such a Claim is made or appears possible, Customer agrees to permit Grydd, at Grydd’s sole discretion, to (i) modify or replace the Solution, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use. If Grydd determines that neither alternative is reasonably available, Grydd may terminate this Agreement or the applicable Order, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(c) This Section 8.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Solution in combination with data, software, hardware, equipment, or technology not provided by Grydd or authorized by Grydd in writing; (ii) modifications to the Solution not made by Grydd; (iii) Customer IP or Customer Data; or (iv) Third-Party Products.
8.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Grydd’s option, defend Grydd from and against any Losses resulting from any Claim that the Customer Data or Customer IP, or any use of the Customer Data or Customer IP in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights, and any Claims based on Customer’s or any Authorized User’s (a) negligence or willful misconduct; (b) use of the Solution or Professional Services in a manner not authorized by this Agreement; (c) use of the Solution or Professional Services in combination with data, software, hardware, equipment, or technology not provided by Grydd or authorized by Grydd in writing; or (d) modifications to the Solution not made by Grydd; provided that Customer may not settle any Claim against Grydd unless Grydd consents to such settlement, and further provided that Grydd will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
8.3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND GRYDD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOLUTION, PROFESSIONAL SERVICES, OR DELIVERABLES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability. IN NO EVENT WILL GRYDD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GRYDD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL GRYDD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GRYDD UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
10.1. Term. This Agreement will take effect on the Effective Date set forth above, and will remain in effect until terminated as described in Section 10.2 below (the “Term”).
10.2. Termination. In addition to any other express termination right set forth in this Agreement:
(a) Grydd may terminate this Agreement or any Order, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 10 days after Grydd’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.4 or Section 5;
(b) Either Party may terminate this Agreement or any Order, effective on written notice to the other Party, if the other Party materially breaches this Agreement, or any Order, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement or any Order, Customer shall immediately discontinue use of the Solution and Grydd IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Solution and Grydd IP and certify in writing to the Grydd that the Grydd IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before
such expiration or termination or entitle Customer to any refund. Upon termination of any Order that includes Professional Services, Customer will pay Grydd for Professional Services performed up to the effective date of the termination.
10.4. Survival. This Section 10.4 and Sections 1, 4, 5, 6, 7.2, 8, 9 and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
11.1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
11.2. Force Majeure. In no event shall Grydd be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Grydd’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, pandemics, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
11.3. Independent Contractor. Nothing herein creates or is intended to create any employment relationship between Customer and Grydd. Grydd will have sole responsibility for the payment of all applicable taxes and withholdings with respect to compensation paid to Grydd’s employees and contractors. Grydd retains absolute discretion in the manner and means of carrying out the Professional Services, and Customer will have no obligation to direct or control the working conditions of Grydd’s employees or subcontractors.
11.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement or any Order is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict
EXHIBIT B
SERVICE LEVELS AND SUPPORT
Grydd Service Level Agreement
for the Solution and Hosted Environment
This Service Level Agreement defines Grydd’s and Customer’s respective responsibilities in case of Incidents relating to the Solution and the Uptime Level of the Hosted Environment. This Service Level Agreement will not be applicable in the event that Customer modifies any portion of the Solution. Grydd’s sole obligation under this Service Level Agreement is to use Grydd’s commercially reasonable efforts to resolve Incidents within the Response and Resolution Times stated herein. Terms used and not otherwise defined herein will have the same meaning as defined in the Supplement.
1. Maintenance Procedures and Types
A. Service Call Classification. A Service Call is any contact from Customer to Grydd’s Service Desk regarding the Solution or the Hosted Environment. A Service Call is classified as an Incident, Unscheduled Outage, or Question. Service Calls are always handled via email and additionally may be required to be followed up by phone.
(i) Incidents and Unscheduled Outages. Incidents will be addressed as specified herein below and Unscheduled Outages will be measured via the Hosted Environment Uptime Level. Service Calls for Incidents with Severity Levels 1 and 2 and for Unscheduled Outages must always be made by a message through the in application ticketing system followed by an email to the Service Desk.
(ii) Question. A Question is any query in relation to the Solution or Hosted Environment not related to an Incident or an Unscheduled Outage.
B. Maintenance Types.
(i) Corrective Maintenance. All Grydd activities relating to an Incident in the Solution or Unscheduled Outages reported by Customer to Grydd’s Service Desk. Grydd will take action to correct Incidents during the Service Windows defined in this Appendix. The claimed Incident must be reproducible by Grydd in the Hosted Environment. Grydd reserves the right to conduct tests in such form and manner as it may deem appropriate to reproduce, substantiate or correct any claimed Incident. Customer must provide Grydd all relevant data and information necessary to reproduce the claim.
(ii) Preventive Maintenance. All Grydd activities to change the Solution or the Hosted Environment as a result of:
a) Proactive work to avoid future Incidents.
b) New or changed functional specifications for the Hosted Environment or the Solution, if and when available.
c) Changes in the setup of the Solution or the Hosted Environment not affecting their functionality.
C. Types of Software Changes to be Delivered by Grydd.
(i) Interim Resolution. An Interim Resolution is a Corrective Maintenance to an Incident with a Severity Level 1 or 2 as described in Section 2.A of this Appendix due to a demonstrated malfunctioning of the Solution. An Interim Resolution enables Customer to continue using the Solution while waiting for a formal Software Release. The Interim Resolution typically consists of a workaround or a change in the Solution that is prepared quickly and has not been fully tested. For Interim Resolutions no regression testing will be done, but the applicable Software Release will contain the fully tested code.
(ii) Software Releases. A Software Release is a formal release upgrade to the Solution that may contain enhancements, improvements, corrections, modifications, or new versions or releases of the Solution. Software Releases will be installed on the Hosted Environment by Grydd, if and when available. With regard to any Software components installed on Customer’s local systems, Grydd will only support (i) their most current version and (ii) the immediately preceding version for a maximum of 6 months from the publication date of the most current version. Grydd will have no responsibility whatsoever to support any other version of locally installed Software components.
2. Service Levels.
A. Incident Priorities. Responses to Incidents depend on the severity of the Incident as further described in the following table (“Severity Level”). Grydd will strive to resolve Incidents quickly and efficiently. In the event that Incidents cannot be resolved within 1 hour of an Incident notification received by the Service Desk, then Grydd will determine the initial Severity Level of the Incident in cooperation with Customer. The Severity Level can be upgraded or downgraded according to how the operations are affected. The following description will be used as guidelines to determine the Severity Levels.
B. Service Windows.
(i) Service Desk Window. The Service Desk operates in English and can be reached through the following channels. The below contact details may be changed by Grydd with ten (10) days prior written notice (email suffices).
(ii) Corrective Maintenance Window.
C. Response and Resolution Time Definitions. The response and resolution targets defined below are only measured inside the Corrective Maintenance Window.
(i) Response Time. The time from the Service Desk’s receipt of Customer’s communication reporting an Incident (“Receipt”) to the time that Grydd responds to indicate that it has received that communication. Response Times to Incidents are directly dependent on the initial Severity Level of the Incident.
(ii) Interim Resolution Time. The time from Receipt to the delivery of an Interim Resolution. The applicability of an Interim Resolution Time is directly dependent on the final Severity Level of the Incident.
(iii) Final Resolution Time. The time from Receipt to delivery of a Software Release. Final Resolution Times are directly dependent on the final Severity Level of the Incident.
D. Response and Resolution Times. Response Time, Interim Resolution Time and Final Resolution Time are defined in the following table. The term “Next Software Release” means any scheduled Software Release for the Solution made available in the month following the month in which an Incident was reported by Customer.
E. Hosted Environment Uptime Level and Scheduled Maintenance Window.
The term “Uptime Level” means the uptime of the Hosted Environment to be calculated on a quarterly calendar basis as follows: “Hosted Environment Quarterly Uptime” hours divided by the total number of Unscheduled Outage hours in the calendar quarter equals the Uptime Level for the quarter as a percentage, where “Hosted Environment Quarterly Uptime” for a given quarter equals the total number of hours in the quarter minus the total number of Hosted Environment Maintenance hours in the calendar quarter.
3. Service Credits.
A. Interim and Final Resolution Times. Customer’s sole and final remedy in the event that Grydd fails to meet an Interim Resolution Time and/or Final Resolution Time for a particular Software Incident will be the right to receive a Service Credit to be used by Customer as a reduction of future payments. Such Service Credit will be calculated in accordance with the table set forth below against the monthly transaction fees identified in the Order for the applicable Solution to which such failure applies. Only one (1) Service Credit will apply per Incident even if Grydd fails to meet both the Interim and Final Resolution Times for such Incident. No Service Credits or other remedies are available to Customer for Grydd’s non-compliance with any Response Times.
B. Hosted Environment Uptime Level. In the event Grydd fails to comply with the Uptime Level of the Hosted Environment, Customer’s sole and final remedy will be the right to receive a Service Credit equal to 1% of the monthly transaction fees per each percentage point below the Uptime Level, up to a maximum of three percent (3%) of the monthly transaction fees set out in the applicable Order.
C. In the event that the transaction fees set forth in the Order is invoiced yearly, then, for the purpose of this Section 3, the monthly transaction fee is calculated to be one-twelfth (1/12) of the yearly transaction fee.
D. Claiming Service Credits. To make a claim for Service Credits, Customer must email such claim to Grydd’s technical account manager within 30 working days of the relevant event (i.e., date of Grydd’s failure to meet an Interim or Final Resolution Time or the close of the calendar quarter in which Grydd failed to meet the Hosted Environment Uptime Level). If not claimed within the aforementioned 30 working days window, Service Credits will not be issued.
E. Service Credit Limitations
(i) The maximum Service Credit available to Customer under this Service Level Agreement in any calendar quarter is limited to 10% of the transaction fees for the affected Solution for that quarter.
(ii) Service Credits are not cumulative. In cases where a single Incident leads to multiple Service Credits, Grydd will only account for the higher Service Credit due hereunder.
(iii) Claimed Service Credits will be credited by Grydd against one of the next invoices for fees due under the applicable Order. Service Credits will automatically expire upon termination of the applicable Order for whatever reason.
F. Exclusions. In addition to those things for which Grydd has no responsibility including but not limited to force majeure and Sections of the Supplement, the following causes are excluded for purposes of calculating Service Credits:
(i) any Incident or Unscheduled Outage that is the result of Customer’s actions, unless such actions were taken upon instruction by Grydd; and
(ii) any Incident or Unscheduled Outage that is the result of the failure of components for which Grydd is not responsible, including applications not managed by Grydd.
EXHIBIT C
DATA PROCESSING ADDENDUM
PERSONAL DATA PROCESSING AGREEMENT FOR GRYDD CLOUD SERVICES
This Data Processing Addendum (“DPA”) is entered into
BETWEEN
(1) Customer; and
(2) Grydd.
1. BACKGROUND
1.1 Purpose and Application. This document is incorporated into the Agreement and forms part of a written (including in electronic form) contract between Grydd and Customer. This DPA applies to Personal Data processed by Grydd and its Subprocessors in connection with its provision of the Cloud Service. This DPA does not apply to non-production environments of the Cloud Service if such environments are made available by Grydd, and Customer shall not store Personal Data in such environments.
1.2 Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.
1.3 GDPR. Grydd and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For illustration purposes, Appendix 3 lists the relevant GDPR requirements and the corresponding sections in this DPA.
1.4 Governance. Grydd acts as a Processor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use Grydd as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Cloud Service. Where Grydd informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.
2. SECURITY OF PROCESSING
2.1 Appropriate Technical and Organizational Measures. Grydd has implemented and will apply the technical and organizational measures set forth in Appendix 2. Customer has reviewed such measures and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
2.2 Changes. Grydd applies the technical and organizational measures set forth in Appendix 2 to Grydd’ entire customer base hosted out of the same Data Center and receiving the same Cloud Service. Grydd may change the measures set out in Appendix 2 at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
3. GRYDD OBLIGATIONS
3.1 Instructions from Customer. Grydd will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Cloud Service then constitutes further instructions. Grydd will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Cloud Service. If any of the before- mentioned exceptions apply, or Grydd otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Grydd will immediately notify Customer (email permitted).
3.2 Processing on Legal Requirement. Grydd may also process Personal Data where required to do so by applicable law. In such a case, Grydd shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
3.3 Personnel. To process Personal Data, Grydd and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. Grydd and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
3.4 Cooperation. At Customer’s request, Grydd will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding Grydd’ processing of Personal Data or any Personal Data Breach. Grydd shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request without Customer’s further instructions, if applicable. Grydd shall provide functionality that supports Customer’s ability to correct or remove Personal Data from the Cloud Service, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, Grydd will correct or remove any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
3.5 Personal Data Breach Notification. Grydd will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. Grydd may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by Grydd.
3.6 Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, Grydd will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties.
4. DATA EXPORT AND DELETION
4.1 Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Grydd and Customer will find a reasonable method to allow Customer access to Personal Data.
4.2 Deletion. Before the Subscription Term expires, Customer is required to use Grydd’ self-service export tools (as available) to perform a final export of Personal Data from the Cloud Service (which shall constitute a “return” of Personal Data). At the end of the Subscription Term, Customer hereby instructs Grydd to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable time period in line with Data Protection Law (not to exceed six months) unless applicable law requires retention.
5. CERTIFICATIONS AND AUDITS
5.1 Customer Audit. Customer or its independent third party auditor reasonably acceptable to Grydd (which shall not include any third party auditors who are either a competitor of Grydd or not suitably qualified or independent) may audit Grydd’ control environment and security practices relevant to Personal Data processed by Grydd only if:
(a) Grydd has not provided sufficient evidence of its compliance with the technical and organizational measures that protect the production systems of the Cloud Service through providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third party auditor or Grydd;
(b) A Personal Data Breach has occurred;
(c) An audit is formally requested by Customer’s data protection authority; or
(d) Mandatory Data Protection Law provides Customer with a direct audit right and provided that Customer shall only audit once in any twelve month period unless mandatory Data Protection Law requires more frequent audits.
5.2 Other Controller Audit. Any other Controller may audit Grydd’ control environment and security practices relevant to Personal Data processed by Grydd in line with Section 5.1 only if any of the cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by Grydd on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
5.3 Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to Grydd.
5.4 Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by Grydd of this DPA, then Grydd shall bear its own expenses of an audit. If an audit determines that Grydd has breached its obligations under the DPA, Grydd will promptly remedy the breach at its own cost.
6. SUBPROCESSORS
6.1 Permitted Use. Grydd is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that:
(a) Grydd shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal Data. Grydd shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;
(b) Grydd will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
(c) Grydd’ list of Subprocessors in place on the effective date of the Agreement is published by Grydd or Grydd will make it available to Customer, upon request including the name, address and role of each Subprocessor Grydd uses to provide the Cloud Service.
6.2 New Subprocessors. Grydd’ use of Subprocessors is at its discretion, provided that:
(a) Grydd will inform Customer in advance (by email or by posting within the Cloud Service) of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and (b) Customer may object to such changes as set out in Section 6.3.
6.3 Objections to New Subprocessors.
(a) If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer may terminate the Agreement (limited to the Cloud Service for which the new Subprocessor is intended to be used) on written notice to Grydd. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of Grydd’ notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty day period, Customer is deemed to have accepted the new Subprocessor.
(b) Within the thirty day period from the date of Grydd’ notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect Grydd’ right to use the new Subprocessor(s) after the thirty day period.
(c) Any termination under this Section 6.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
6.4 Emergency Replacement. Grydd may replace a Subprocessor without advance notice where the reason for the change is outside of Grydd’ reasonable control and prompt replacement is required for security or other urgent reasons. In this case, Grydd will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.
7. INTERNATIONAL PROCESSING
7.1 Conditions for International Processing. Grydd shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
7.2 Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as a safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses, then:
(a) Grydd and Customer enter into the Standard Contractual Clauses;
(b) Customer enters into the Standard Contractual Clauses with each relevant Subprocessor as follows, either (i) Customer joins the Standard Contractual Clauses entered into by Grydd and the Subprocessor as an independent owner of rights and obligations (“Accession Model”) or, (ii) the Subprocessor (represented by Grydd) enters into the Standard Contractual Clauses with Customer (“Power of Attorney Model”). The Power of Attorney Model shall apply if and when Grydd has expressly confirmed that a Subprocessor is eligible for it through the Subprocessor list provided under Section 6.1(c), or a notice to Customer; and/or
(c) Other Controllers whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses with Grydd and/or the relevant Subprocessors in the same manner as Customer in accordance with Sections 7.2 (a) and (b) above. In such case, Customer will enter into the Standard Contractual Clauses on behalf of the other Controllers.
7.3 Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.
7.4 Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the law of the country in which the relevant Controller is incorporated.
8. DOCUMENTATION; RECORDS OF PROCESSING
Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), in order to enable the other party to comply with any obligations relating to maintaining records of processing.
9. DEFINITIONS
Capitalized terms not defined herein will have the meanings given to them in the Agreement.
9.1 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to Grydd be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
9.2 “Data Center” means the location where the production instance of the Cloud Service is hosted for the Customer in the region agreed in an Order Form.
9.3 “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement (and includes, as far as it concerns the relationship between the parties regarding the processing of Personal Data by Grydd on behalf of Customer, the GDPR as a minimum standard, irrespective of whether the Personal Data is subject to GDPR or not).
9.4 “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
9.5 “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
9.6 “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by Customer or its Authorized Users into or derived from their use of the Cloud Service, or (ii) supplied to or accessed by Grydd or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
9.7 “Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
9.8 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.
9.9 “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply). The Standard Contractual Clauses current as of the effective date of the Agreement are attached hereto as Appendix 4.
9.10 “Subprocessor” means Grydd affiliates and third parties engaged by Grydd in connection with the Cloud Service and which process Personal Data in accordance with this DPA.
Appendix 1 to the DPA and, if applicable, the Standard Contractual Clauses
Data Exporter
The Data Exporter is the Customer who subscribed to a Cloud Service that allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also use the Cloud Service, these other Controllers are also Data Exporters.
Data Importer
Grydd and its Subprocessors provide the Cloud Service that includes the following support:
Grydd and its Affiliates support the Cloud Service data centers remotely from Grydd’ locations specified in Grydd’ Security White Paper (which is available upon request). Support includes:
• Monitoring the Cloud Service
• Backup & restoration of Customer Data stored in the Cloud Service
• Release and development of fixes and upgrades to the Cloud Service
• Monitoring, troubleshooting and administering the underlying Cloud Service infrastructure and database
• Security monitoring, network-based intrusion detection support, penetration testing
Grydd and its Affiliates provide support when a Customer requests support because the Cloud Service is not available or not working as expected for some or all Authorized Users. Grydd answers phones and performs basic troubleshooting, and handles support tickets in a tracking system that is separate from the production instance of the Cloud Service.
Data Subjects
The Data Exporter solely determines the categories of Data Subjects which may include: employees, contractors, business partners or other individuals having Personal Data stored in the Cloud Service.
Data Categories
Customer solely determines the categories of data per Cloud Service subscribed. Customer can configure the data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e- mail address, time zone, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service.
Special Data Categories (if appropriate)
The transferred Personal Data concerns the following special categories of data: As set out in the Agreement (including the Order Form) if any.
Processing Operations / Purposes
The transferred Personal Data is subject to the following basic processing activities:
• use of Personal Data to set up, operate, monitor and provide the Cloud Service (including operational and technical Support)
• provision of Services;
• communication to Authorized Users
• storage of Personal Data in dedicated Data Centers (multi-tenant architecture)
• upload any fixes or upgrades to the Cloud Service
• back up of Personal Data
• computer processing of Personal Data, including data transmission, data retrieval, data access
• network access to allow Personal Data transfer
• execution of instructions of Customer in accordance with the Agreement.
Appendix 2 to the DPA and, if applicable, the Standard Contractual Clauses – Technical and Organizational Measures
1. TECHNICAL AND ORGANIZATIONAL MEASURES
The following sections define Grydd’ current technical and organizational measures. Grydd may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
1.1 Physical Access Control. Unauthorized persons are prevented from gaining physical access to premises, buildings or rooms where data processing systems that process and/or use Personal Data are located.
Measures:
• Grydd protects its assets and facilities using the appropriate means based on the Grydd Security Policy
• In general, buildings are secured through access control systems (e.g., smart card access system).
• As a minimum requirement, the outermost entrance points of the building must be fitted with a certified key system including modern, active key management.
• Depending on the security classification, buildings, individual areas and surrounding premises may be further protected by additional measures. These include specific access profiles, video surveillance, intruder alarm systems and biometric access control systems.
• Access rights are granted to authorized persons on an individual basis according to the System and Data Access Control measures (see Section 1.2 and 1.3 below). This also applies to visitor access. Guests and visitors to Grydd buildings must register their names at reception and must be accompanied by authorized Grydd personnel.
• Grydd employees and external personnel must wear their ID cards at all Grydd locations.
Additional measures for Data Centers:
• All Data Centers adhere to strict security procedures enforced by guards, surveillance cameras, motion detectors, access control mechanisms and other measures to prevent equipment and Data Center facilities from being compromised. Only authorized representatives have access to systems and infrastructure within the Data Center facilities. To protect proper functionality, physical security equipment (e.g., motion sensors, cameras, etc.) undergo maintenance on a regular basis.
• Grydd and all third-party Data Center providers log the names and times of authorized personnel entering Grydd’ private areas within the Data Centers.
1.2 System Access Control. Data processing systems used to provide the Cloud Service must be prevented from being used without authorization.
Measures:
• Multiple authorization levels are used when granting access to sensitive systems, including those storing and processing Personal Data. Authorizations are managed via defined processes according to the Grydd Security Policy
• All personnel access Grydd’ systems with a unique identifier (user ID).
• Grydd has procedures in place so that requested authorization changes are implemented only in accordance with the Grydd Security Policy (for example, no rights are granted without authorization). In case personnel leaves the company, their access rights are revoked.
• Grydd has established a password policy that prohibits the sharing of passwords, governs responses to password disclosure, and requires passwords to be changed on a regular basis and default passwords to be altered. Personalized user IDs are assigned for authentication. All passwords must fulfill defined minimum requirements and are stored in encrypted form. In the case of domain passwords, the system forces a password change every six months in compliance with the requirements for complex passwords. Each computer has a password-protected screensaver.
• The company network is protected from the public network by firewalls.
• Grydd uses up–to-date antivirus software at access points to the company network (for e-mail accounts), as well as on all file servers and all workstations.
• Security patch management is implemented to provide regular and periodic deployment of relevant security updates. Full remote access to Grydd’ corporate network and critical infrastructure is protected by strong authentication.
1.3 Data Access Control. Persons entitled to use data processing systems gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.
Measures:
• As part of the Grydd Security Policy, Personal Data requires at least the same protection level as “confidential” information according to the Grydd Information Classification standard.
• Access to Personal Data is granted on a need-to-know basis. Personnel have access to the information that they require in order to fulfill their duty. Grydd uses authorization concepts that document grant processes and assigned roles per account (user ID). All Customer Data is protected in accordance with the Grydd Security Policy.
• All production servers are operated in the Data Centers or in secure server rooms. Security measures that protect applications processing Personal Data are regularly checked. To this end, Grydd conducts internal and external security checks and penetration tests on its IT systems.
• An Grydd security standard governs how data and data carriers are deleted or destroyed once they are no longer required.
1.4 Data Transmission Control. Except as necessary for the provision of the Cloud Services in accordance with the Agreement, Personal Data must not be read, copied, modified or removed without authorization during transfer. Where data carriers are physically transported, adequate measures are implemented at Grydd to provide the agreed-upon service levels (for example, encryption and lead- lined containers).
Measures:
• Personal Data in transfer over Grydd internal networks is protected according to Grydd Security Policy.
• When data is transferred between Grydd and its customers, the protection measures for the transferred Personal Data are mutually agreed upon and made part of the relevant agreement. This applies to both physical and network based data transfer. In any case, the Customer assumes responsibility for any data transfer once it is outside of Grydd-controlled systems (e.g. data being transmitted outside the firewall of the Grydd Data Center).
1.5 Data Input Control. It will be possible to retrospectively examine and establish whether and by whom Personal Data have been entered, modified or removed from Grydd data processing systems.
Measures:
• Grydd only allows authorized personnel to access Personal Data as required in the course of their duty.
• Grydd has implemented a logging system for input, modification and deletion, or blocking of Personal Data by Grydd or its subprocessors within the Cloud Service to the extent technically possible.
1.6 Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a customer’s behalf) is processed solely in accordance with the Agreement and related instructions of the customer.
Measures:
• Grydd uses controls and processes to monitor compliance with contracts between Grydd and its customers, subprocessors or other service providers.
• As part of the Grydd Security Policy, Personal Data requires at least the same protection level as “confidential” information according to the Grydd Information Classification standard.
• All Grydd employees and contractual subprocessors or other service providers are contractually bound to respect the confidentiality of all sensitive information including trade secrets of Grydd customers and partners.
1.7 Availability Control. Personal Data will be protected against accidental or unauthorized destruction or loss.
Measures:
• Grydd employs regular backup processes to provide restoration of business-critical systems as and when necessary.
• Grydd uses uninterrupted power supplies (for example: UPS, batteries, generators, etc.) to protect power availability to the Data Centers.
• Grydd has defined business contingency plans for business-critical processes and may offer disaster recovery strategies for business critical Services as further set out in the Documentation or incorporated into the Order Form for the relevant Cloud Service.
• Emergency processes and systems are regularly tested.
1.8 Data Separation Control.
Measures:
• Grydd uses the technical capabilities of the deployed software (for example: multi- tenancy, system landscapes) to achieve data separation among Personal Data originating from multiple customers.
• Customer (including its Controllers) has access only to its own data.
1.9 Data Integrity Control. Personal Data will remain intact, complete and current during processing activities.
Measures:
Grydd has implemented a multi-layered defense strategy as a protection against unauthorized modifications. In particular, Grydd uses the following to implement the control and measure sections described above:
• Firewalls;
• Security Monitoring Center;
• Antivirus software;
• Backup and recovery;
• External and internal penetration testing;
• Regular external audits to prove security measures.
Appendix 3 to the DPA and, if applicable, the Standard Contractual Clauses
The following table sets out the relevant Articles of GDPR and corresponding terms of the DPA for illustration purposes only.
Appendix 4
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
(Pursuant to Commission Decision of 5 February 2010 (2010/87/EU))
For the purposes of Article 26(2) of Directive 95/46/EC (or, after 25 May 2018, Article 44 et seq. of Regulation 2016/79) for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Customer also on behalf of the other Controllers
(in the Clauses hereinafter referred to as the ‘data exporter’) and
Grydd, LLC
(in the Clauses hereinafter referred to as the ‘data importer’) each a ‘party’; together ‘the parties’
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7,Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub- processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it
agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub- processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9
Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Sub-processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub- processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
