Google Cloud Marketplace EULA
VERSION: 2
DATED: January 27th, 2021
This Google Cloud Marketplace EULA (this “Agreement”) is between the person or entity described as the provider of the Service on the Listing (“Vendor”) and the person or entity agreeing to these terms (“You” or “Customer”). This Agreement states the terms under which Vendor will provide the Service to You. By accessing or using the Service, You are agreeing to the terms of this Agreement (the date of such action, the “Effective Date”). If You are entering into this Agreement on behalf of an entity, then You represent and agree that You have the legal authority to bind that entity to this Agreement. If You do not accept the terms of this Agreement, then you cannot use the Service.
Google has made this Agreement available to help facilitate contracting between the Vendor and Customer. The parties acknowledge that (1) Google is not a party to this Agreement, (2) Google is not responsible for the any of the parties’ actions, obligations, or liability under this Agreement, (3) that the Agreement is made available “as-is” and “as available” without any warranty of any kind from Google, and (4) the parties’ use of this Agreement is at their own risk.
1. Applicability; Provision of the Service
1.1 Access and Use. During the Term and in accordance with this Agreement, Customer may access and use the Service solely for Customer’s internal business purposes.
1.2 Registration and Account. To use the Service, Customer will create an Account. Customer must provide complete and accurate information when creating the Account and keep the information complete and accurate at all times. Customer is responsible for (a) maintaining the security of its Account (for example, any applicable login credentials or security keys), (b) all activities that occur under Customer’s Account, and (c) any other actions taken in connection with Customer’s Account. Vendor and Vendor’s Affiliates are not responsible for unauthorized access to Customer’s Account. Customer will notify Vendor immediately if Customer believes there has been unauthorized access to or use of Customer’s Account.
1.3 Support. Vendor will provide support for the Service as provided in Vendor’s applicable support policy and in accordance with the level of support purchased by Customer (the “Support”).
1.4 Service Level Agreement. If specified for the Service on the Listing, Vendor will provide the Service in accordance with the applicable service level agreement. Not all services listed on the Marketplace include a service level agreement.
2. Customer Obligations
2.1 Restrictions. Customer will not, and will not allow any third party to: (a) use the Service in violation of laws or regulations, (b) use the Service to violate the rights of others, (c) use the Service in high-risk, hazardous environments requiring fail-safe performance, including in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Service could lead to severe physical or environmental damages; (d) resell or sublicense the Service; (e) disable or circumvent any aspects of the Service, including security mechanisms used by the Service, or attempt to do the same; (f) use the Service to perform any malicious activity, including to violate the security or integrity of any network, computer or communications system, software application, or network or computing device; (g) generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements or other solicitations; (h) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State; (i) publish or provide any benchmark or comparison test results that pertain to the Service; or (j) modify, adapt, or create a derivative work of the Service.
2.2 Applicable Law. Customer will comply with all laws, rules, and regulations applicable to Customer’s use of and access to the Service. Vendor will comply with all laws, rules, and regulations applicable to Vendor’s provision of the Service.
2.3 Enforcement. Vendor may, but has no obligation to (a) investigate any violation of this Section 2 (Customer Obligations) or misuse of the Service, and (b) remove or modify any Customer Data, or disable access to any resource, that violates the foregoing.
2.4 Responsibility for Customer Data. Customer is responsible for the Customer Data, including the accuracy and completeness of such Customer Data, and any loss, liabilities or damages resulting from the Customer Data, regardless of the nature of the Customer Data. Customer is responsible for backing up or otherwise making duplicates of Customer Data. Customer is responsible for communicating with the Service through encrypted and authenticated connections, as may be required by Vendor, and for transmitting all Customer Data using appropriate security methods.
2.5 Protected Health Information. Customer will not store or process any Protected Health Information using the Service unless Customer has a Business Associate Agreement with Vendor.
2.6 Representations and Warranties. Customer represents and warrants that (a) it owns or has the necessary rights and licenses to provide the Customer Data to the Service; and (b) the provision of the Customer Data to, and use of the Customer Data by, the Service as contemplated in this Agreement will not infringe any third party’s rights, including Intellectual Property Rights.
3. Data Processing
3.1 Use and Performance Data. Vendor may collect and analyze data regarding Customer’s use of the Service, excluding any personal data (“Performance Data”). Vendor may use this information for its own business purposes, including to maintain, operate, and improve the Service, monitor and analyse activities in connection with the Service, as well as to create anonymized statistics for Vendor’s own marketing purposes.
3.2 Data Processing Addendum. Unless a separate agreement covering the subject matter of this Agreement is entered into by the parties that specifically references the Data Processing Addendum, each party will comply with the Data Processing Addendum attached to this Agreement as Attachment 1. The Data Processing Addendum is incorporated into this Agreement by reference.
3.3 Security. Vendor will implement reasonable technical and organizational safeguards designed to protect Customer Data against unauthorized loss, destruction, alteration, access, or disclosure.
3.4 Use of Customer Data. Vendor will not access or use Customer Data except as necessary to provide the Service.
5. Payment
The parties agree that Customer’s sole payment obligations for the Service are contained in the GCP Marketplace Agreement. Customer may not use or access the Service if Customer does not comply with all of its payment obligations specified in the GCP Marketplace Agreement.
6. Confidential Information
6.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
6.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use of the Service.
7. Intellectual Property
7.1 Ownership. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's Intellectual Property Rights. As between Customer and Vendor, Customer owns all Intellectual Property Rights in the Customer Data, and Vendor owns all Intellectual Property Rights in the Service.
7.2 Feedback. At its option, Customer may provide feedback and suggestions about the Service to Vendor (“Feedback”). If Customer provides Feedback, then Vendor and its Affiliates may use that Feedback without restriction and without obligation to Customer.
7.3 DMCA. Vendor provides information to help copyright holders manage their intellectual property online, but Vendor cannot determine whether something is being used legally without input from the copyright holders. Vendor will respond to notices of alleged copyright infringement and may terminate repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act. If Customer believes a person or entity is violating Customer’s copyrights, Customer can notify Vendor at Vendor’s notice address described in Section 12.1 (Notices).
8. Warranties and Disclaimers
8.1 Mutual. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable.
8.2 Vendor Performance Warranty. Vendor warrants that the Service will perform substantially in accordance with the Documentation. If Vendor is providing Support, Vendor warrants that it will perform the Support in a diligent and workmanlike manner consistent with industry standards.
8.3 Remedies. If the Service or Support fails to conform to the warranties in Section 8.2 (Vendor Performance Warranty), Vendor will promptly, at its option and expense, correct the Service and re-perform the Support as necessary to conform to the warranties. If Vendor does not correct the Service or re-perform the Support to conform to the warranties within a reasonable time, not to exceed 30 days, as Customer’s sole remedy and Vendor’s exclusive liability (except as provided in Section 10), Customer may terminate this Agreement without further liability and, if the Service was purchased on a subscription basis, Vendor will issue a refund to Customer of any fees prepaid by Customer, prorated for the unused portion of the subscription.
8.4 Disclaimer. Except as stated in this Section 8 (Warranties and Disclaimers), the Service and, if applicable, Support are provided on an “AS-IS” basis. To the fullest extent permitted by law, Vendor disclaims and this Agreement excludes any implied or statutory warranty, including any warranty of title, non-infringement, merchantability or fitness for a particular purpose. Vendor does not warrant that the Service will operate uninterrupted or error free, or that all errors will be corrected.
9. Termination
9.1 Termination, Both Parties. If a party fails to cure a material breach of this Agreement within 30 days after receipt of written notice of the breach, the other party may terminate this Agreement. If either party has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of such party’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, then the other party may immediately terminate this Agreement.
9.2 Termination or Suspension by Vendor. Vendor may also terminate Customer’s Account, terminate this Agreement, or suspend Customer’s Account or access to the Service, immediately if Customer violates Section 2.1 (Restrictions). Vendor will provide advance notice before such suspension or termination, unless Vendor believes an immediate suspension or termination is required in which case Vendor will provide notice promptly after such suspension or termination.
9.3 Effect of Termination. Upon expiration or termination of this Agreement, all rights under this Agreement will immediately terminate. Vendor will have no obligation to continue to store Customer Data after termination of this Agreement. Customer is solely responsible for exporting Customer Data from the Service before expiration or termination of this Agreement. The following Sections will survive expiration or termination of this Agreement: Section 6 (Confidential Information), Section 7 (Intellectual Property), Section 8.4 (Disclaimer), Section 9.3 (Effect of Termination), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (General).
10. Indemnification
10.1 By Customer. Customer will defend and indemnify Vendor and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (a) any Customer Data; (b) the combination of the Customer Data with other applications, content or processes; or (c) Customer's use of the Service in violation of Section 2.1 (Restrictions).
10.2 By Vendor. Vendor will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an unaffiliated third-party allegation that use of Vendor’s technology used to provide the Service infringes or misappropriates the third party's Intellectual Property Rights.
10.3 Exclusions. This Section 10 (Indemnification) will not apply to the extent the underlying allegation arises from: (a) the indemnified party's breach of this Agreement; (b) modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party; (c) combination of the indemnifying party's technology with materials not provided by the indemnifying party; or (d) use of non-current or unsupported versions of the Service or Brand Features.
10.4 Infringement Remedies. In addition to Vendor’s indemnity obligations, if the Service becomes, or in Vendor’s opinion is likely to become, the subject of an infringement claim, Vendor may at its sole option and expense: (i) procure for Customer the right to make continued use of the Service; (ii) replace or modify the Service so that they become non-infringing; or (iii) terminate the Service.
10.5 Conditions. Sections 10.1 (By Customer) and 10.2 (By Vendor) are conditioned on the following:
(a) The indemnified party must promptly notify the indemnifying party in writing of any allegation that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation and Third-Party Legal Proceeding. If breach of this Section 10.5(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 10.1 (By Customer) or 10.2 (By Vendor) (as applicable) will be reduced in proportion to the prejudice.
(b) The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
10.6 Sole Rights and Obligations. This Section 10 (Indemnification) sets forth each party’s only rights and obligations under this Agreement for any third party’s Intellectual Property Rights.
11. Limitation of Liability
11.1 Limitations. Except as stated in Section 11.2 (Exceptions) and to the extent permitted by applicable law: (a) neither party will be liable to the other party for (i) indirect, consequential, special, incidental, or punitive damages or (ii) lost revenues, profits, savings, or goodwill; and (b) each party’s total aggregate liability for damages arising out of or relating to the Agreement is limited to the fees Customer paid for the Service during the 6-month period before the event giving rise to liability.
11.2 Exceptions. Nothing in this Agreement limits either party’s liability for the following: (i) gross negligence or willful misconduct; (ii) death or personal injury caused by negligence, gross negligence, or willful misconduct; (iii) Customer’s payment obligations; (iv) Customer’s obligations under Section 10 (Indemnification); or (iv) any liability that cannot legally be limited.
12. General
12.1 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to Vendor is provided on the Listing. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
12.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
12.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
12.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
12.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
12.6 No Waiver; Severability. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
12.7 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
12.8 Export Control. The Service, Support, and Documentation may be subject to export control laws and regulations. Customer may not access or use the Service, Support, Documentation, or any underlying information or technology except in full compliance with all applicable export control laws. None of the Service, Support, Documentation, or any underlying information or technology may be accessed or used (a) by any individual or entity in any country to which the United States has embargoed goods; or (b) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
12.9 Governing Law. All claims arising out of or relating to this Agreement or the Service will be governed by Texas Law, excluding that state’s conflict of laws rules, and will be litigated exclusively in the federal or state courts of Harris County, Texas, USA. The parties consent to personal jurisdiction in those courts. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
12.10 Entire Agreement; Amendments. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
12.11 Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
13. Additional Definitions
In this Agreement:
• “Account” means the account that Customer has or creates with Vendor to access or use the Service.
• “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
• “Business Associate Agreement” means an amendment to this Agreement covering the handling of Protected Health Information.
• “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.
• “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
• “Customer Data” means all data uploaded to the Service by Customer or on Customer’s behalf. Customer Data does not include Performance Data.
• “Data Processing Addendum” means the terms contained in Attachment 1.
• “Documentation” means the technical documentation provided by Vendor describing the features and functions of the Service.
• “GCP Marketplace Agreement” means the terms between Google, as Google is defined under such agreement, and the Customer, governing Customer’s use of the Marketplace, including the terms described at https://console.developers.google.com/tos?id=launcher.
• “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
• “including” means including but not limited to.
• "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
• “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
• “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
• “Listing” means the page in Marketplace that describes the Service.
• “Marketplace” means the “Google Cloud Marketplace” or any other Google Cloud Platform online marketplace operated by Google that allows the procurement or deployment by customers of software or services.
• “Protected Health Information” will have the definition set forth in HIPAA.
• “Service” means the service offered by Vendor and procured or deployed by Customer through the Marketplace, in each case where the Listing states that the provision of the service is governed by this Agreement.
• “Term” means the applicable subscription term purchased for the Service or, if the Service is not sold on a subscription basis, the period of time until this Agreement is terminated in accordance with Section 9 (Termination).
• “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
Attachment 1: Data Processing Addendum
This Data Processing Addendum (this “Addendum”) forms part of the Agreement between Vendor and Customer. This Addendum applies where and only to the extent that Vendor processes Customer Personal Data on behalf of Customer in the course of providing the Service or Support to Customer under the Agreement. This Addendum does not apply where Vendor determines the purpose and means of the processing of personal data.
Customer and Vendor agree, based on their current and intended use and provision of the Service and Vendor’s commitments under this Addendum, as applicable, including Section 6 (Data Security), (a) meet each party’s needs as applicable, including with respect to any security obligations of Customer under European Data Protection Law and/or Non-European Data Protection Law, as applicable, and (b) provide a level of security appropriate to the risk of the Customer Data.
1. Definitions
1.1 Terms defined in the Agreement apply to this Addendum. In addition, in this Addendum:
• “Alternative Transfer Solution” means a solution, other than the Model Contract Clauses, that enables the lawful transfer of personal data to a third country in accordance with European Data Protection Law (for example, Privacy Shield).
• “Customer Personal Data” means the personal data contained within the Customer Data.
• “Data Incident” means a breach of Vendor’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Vendor.
• “EEA” means the European Economic Area.
• “EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
• “European Data Protection Law” means, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland).
• “European or National Law” means, as applicable: (a) EU or EU Member State law (if the EU GDPR applies to the processing of Customer Personal Data); and/or (b) the law of the UK or a part of the UK (if the UK GDPR applies to the processing of Customer Personal Data).
• “GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR.
• “Model Contract Clauses” mean the Standard Contractual Clauses for Processors approved by the European Commission for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
• “Non-European Data Protection Law” means data protection or privacy laws in force outside the European Economic Area, Switzerland and the UK.
• “Privacy Shield” means, as applicable, the EU-U.S. Privacy Shield legal framework, the Swiss-U.S. Privacy Shield legal framework, and any equivalent legal framework that may apply between the UK and the United States.
• “Subprocessor” means a third party authorized as another processor under this Addendum to have logical access to and process Customer Data to provide parts of the Service and Support.
• “UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.
1.2 The terms “personal data”, “data subject”, “processing”, “controller” and “processor” as used in this Addendum have the meanings given in the GDPR irrespective of whether European Data Protection Law or Non-European Data Protection Law applies.
2. Duration
This Addendum will, notwithstanding expiry of the Term, remain in effect until, and automatically expire upon, deletion of all Customer Data by Vendor as described in this Addendum.
3. Scope of Data Protection Law
3.1 Application of European Law. The parties acknowledge that European Data Protection Law will apply to the processing of Customer Personal Data if, for example:
1. the processing is carried out in the context of the activities of an establishment of Customer in the territory of the EEA or the UK; and/or
2. the Customer Personal Data is personal data relating to data subjects who are in the EEA or the UK and the processing relates to the offering to them of goods or services in the EEA or the UK, or the monitoring of their behavior in the EEA or the UK.
3.2 Application of Non-European Law. The parties acknowledge that Non-European Data Protection Law may also apply to the processing of Customer Personal Data.
3.3 Application of Terms. Except to the extent this Addendum states otherwise, this Addendum will apply irrespective of whether European Data Protection Law or Non-European Data Protection Law applies to the processing of Customer Personal Data.
4. Processing of Data
4.1 Roles and Regulatory Compliance; Authorization.
4.1.1 Processor and Controller Responsibilities. If European Data Protection Law applies to the processing of Customer Personal Data: (a) the subject matter and details of the processing are described in Appendix 1; (b) Vendor is a processor of that Customer Personal Data under European Data Protection Law; (c) Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Law; and (d) each party will comply with the obligations applicable to it under European Data Protection Law with respect to the processing of that Customer Personal Data.
4.1.2 Authorization by Third Party Controller. If European Data Protection Law applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants that its instructions and actions with respect to that Customer Personal Data, including its appointment of Vendor as another processor, have been authorized by the relevant controller.
4.1.3 Responsibilities under Non-European Law. If Non-European Data Protection Law applies to either party’s processing of Customer Personal Data, the relevant party will comply with any obligations applicable to it under that law with respect to the processing of that Customer Personal Data.
4.2 Scope of Processing.
4.2.1 Customer’s Instructions. Customer instructs Vendor to process Customer Personal Data only in accordance with applicable law: (a) to provide the Service and Support; (b) as further specified via Customer’s use of the Service (including account administration portals and other functionality of the Service) and Support; (c) as documented in the Agreement, including this Addendum; and (d) as further documented in any other written instructions given by Customer and acknowledged by Vendor as constituting instructions for purposes of this Addendum.
4.2.2 Vendor’s Compliance with Instructions. Vendor will comply with the instructions described in Section 4.2.1 (Customer’s Instructions) (including with regard to data transfers) unless European or National Law to which Vendor is subject requires other processing of Customer Personal Data by Vendor, in which case Vendor will notify Customer (unless that law prohibits Vendor from doing so on important grounds of public interest) before such other processing.
5. Data Deletion
5.1 Deletion by Customer. Vendor will enable Customer to delete Customer Data during the Term in a manner consistent with the functionality of the Service. If Customer uses the Service to delete any Customer Data during the Term and that Customer Data cannot be recovered by Customer, this use will constitute an instruction to Vendor to delete the relevant Customer Data from Vendor’s systems in accordance with applicable law.
5.2 Deletion on Termination. On expiry of the Term, Customer instructs Vendor to delete all Customer Data (including existing copies) from Vendor’s systems in accordance with applicable law. This requirement will not apply: (a) to the extent Vendor is required by applicable law to retain some or all of the Customer Data, or (b) to Customer Data that Vendor has archived on back-up systems, which Customer Data Vendor will securely isolate and protect from any further processing, except to the extent required by law.
6. Data Security
6.1 Vendor’s Security Measures, Controls and Assistance.
6.1.1 Vendor’s Security Measures. Vendor will implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the “Security Measures”). Vendor may update the Security Measures from time to time if such updates do not result in the degradation of the overall security of the Service.
6.1.2 Security Compliance by Vendor Staff. Vendor will: (a) take appropriate steps to ensure compliance with the Security Measures by its employees and contractors to the extent applicable to their scope of performance, and (b) ensure that all persons authorized to process Customer Personal Data are under an obligation of confidentiality.
6.1.3 Vendor’s Security Assistance. Vendor will (taking into account the nature of the processing of Customer Personal Data and the information available to Vendor) assist Customer in ensuring compliance with its obligations under Articles 32 to 34 of the GDPR, by: (a) implementing and maintaining the Security Measures in accordance with Section 6.1.1 (Vendor’s Security Measures); (b) complying with the terms of Section 6.2 (Data Incidents); (c) providing Customer with the Security Documentation in accordance with Section 6.4 (Customer’s Audit Rights) and the information contained in the Agreement including this Addendum; and (d) if subsections (a)-(c) above are insufficient for Customer to comply with such obligations, upon Customer’s request, providing additional reasonable assistance.
6.2 Data Incidents. Vendor will notify Customer promptly and without undue delay after becoming aware of a Data Incident, and promptly take reasonable steps to minimize harm and secure Customer Data. Vendor’s notification of a Data Incident will describe, to the extent possible, the nature of the Data Incident, the measures taken to mitigate the potential risks and the measures Vendor recommends Customer take to address the Data Incident.
6.3 Customer’s Security Responsibilities. Without prejudice to Vendor’s obligations under Sections 6.1 (Vendor’s Security Measures, Controls and Assistance) and 6.2 (Data Incidents), and elsewhere in the Agreement, Customer is responsible for its use of the Service and its storage of any copies of Customer Data outside Vendor’s or its Subprocessors’ systems, including: (a) protecting the security of Customer Data when in transit to and from the Service; (b) securing the account authentication credentials, systems and devices Customer uses to access the Service; and (c) backing up its Customer Data as appropriate.
6.4 Customer’s Audit Rights. Upon Customer’s request, and subject to the confidentiality obligations of the Agreement, Vendor will make available to Customer (or Customer’s independent, third-party auditor) information regarding Vendor’s compliance with the security obligations specified in this Addendum in the form of third-party certifications and audit reports (such certifications and reports the “Security Documentation”). Customer agrees that Vendor’s compliance with Section 6.1 (Vendor’s Security Measures, Controls and Assistance) will fulfil any audit cooperation responsibilities that may apply to Vendor under Data Protection Laws.
7. Impact Assessments and Consultations
Vendor will (taking into account the nature of the processing and the information available to Vendor) assist Customer in ensuring compliance with its obligations under Articles 35 and 36 of the GDPR, by: (a) providing the Security Documentation in accordance with Section 6.4 (Customer’s Audit Rights); (b) providing the information contained in the Agreement including this Addendum; and (c) if subsections (a) and (b) above are insufficient for Customer to comply with such obligations, upon Customer’s request, providing additional reasonable assistance.
8. Cooperation
8.1 Access. During the Term, Vendor will enable Customer, in a manner consistent with the functionality of the Service, to access, rectify and restrict processing of Customer Data, including via the deletion functionality provided by Vendor as described in Section 5.1 (Deletion by Customer), and to export Customer Data.
8.2 Customer Responsibility for Data Subject Requests. During the Term, if Vendor receives a request from a data subject relating to Customer Personal Data, and the request identifies Customer, Vendor will advise the data subject to submit their request to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Service.
8.3 Vendor’s Data Subject Request Assistance. Vendor will (taking into account the nature of the processing of Customer Personal Data) assist Customer in fulfilling its obligations under Chapter III of the GDPR to respond to requests for exercising the data subject’s rights by: (a) complying with Sections 8.1 (Access) and 8.2 (Customer’s Responsibility for Data Subject Requests); and (c) if subsections (a) and (b) above are insufficient for Customer to comply with such obligations, upon Customer’s request, providing additional reasonable assistance.
9. Data Transfers
9.1 Data Storage and Processing Facilities. Vendor may store and process Customer Data anywhere Vendor or its Subprocessors maintain data processing operations.
9.2 Transfers of Data.
9.2.1 Vendor’s Transfer Obligations. If the storage and/or processing of Customer Personal Data involves transfers of Customer Personal Data out of the EEA, Switzerland or the UK, and European Data Protection Law applies to the transfers of such data (“Transferred Personal Data”), Vendor will:
1. ensure that Vendor complies with the Model Contract Clauses, which are incorporated into this Addendum by reference, and ensure that the transfers are made in accordance with such Model Contract Clauses; and/or
2. offer an Alternative Transfer Solution for such data, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Customer about such Alternative Transfer Solution.
9.2.2 Customer’s Transfer Obligations. For Transferred Personal Data, Customer will:
1. comply with the Model Contract Clauses as the exporter of such data, if European Data Protection Law Vendor reasonably requires Customer to do so; and
2. use an Alternative Transfer Solution offered by Vendor for such data and take any action (which may include execution of documents) strictly required to give full effect to such solution if under European Data Protection Law Vendor reasonably requires Customer to do so.
9.3 Disclosure of Confidential Information Containing Personal Data. If the Model Contract Clauses apply as described in Section 9.2 (Transfers of Data), Vendor will, notwithstanding any term to the contrary in the Agreement, ensure that any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
10. Subprocessors
10.1 Consent to Subprocessor Engagement. Customer authorizes the engagement as Subprocessors of: (a) those entities listed at URL provided by the Vendor on the Listing, as may be updated by Vendor from time to time in accordance with this Addendum; and (b) all other Vendor Affiliates from time to time. In addition, without prejudice to Section 10.3 (Opportunity to Object to Subprocessor Changes), Customer generally authorizes the engagement as Subprocessors of any other third parties (each, a “New Third Party Subprocessor”).
10.2 Requirements for Subprocessor Engagement. When engaging any Subprocessor, Vendor will:
1. ensure via a written contract that: (i) the Subprocessor only accesses and uses Customer Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including this Addendum) and any Model Contract Clauses entered into or Alternative Transfer Solution adopted by Vendor as described in Section 10.2 (Transfers of Data); and (ii) if the GDPR applies to the processing of Customer Personal Data, the data protection obligations described in Article 28(3) of the GDPR, as described in this Addendum, are imposed on the Subprocessor; and
2. remain fully liable for all obligations subcontracted to the Subprocessor, and all acts and omissions of the Subprocessor, in each case relating to Vendor’s obligations under this Addendum.
10.3 Opportunity to Object to Subprocessor Changes.
10.3.1 Notice. When any New Third Party Subprocessor is engaged during the Term, Vendor will, at least 30 days before the New Third Party Subprocessor starts processing any Customer Data, notify Customer of the engagement (including the name and headquartered location of the relevant Subprocessor and the activities it will perform), such as by updating the URL provided by the Vendor on the Listing.
10.3.2 Opportunity to Object. Customer may object in writing to Vendor’s engagement of a New Third Party Subprocessor, but only if such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may, as its sole and exclusive remedy, suspend or terminate the Agreement.
11. Liability
11.1 Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates under or in connection with the Agreement, including this Addendum and and the Model Contract Clauses as applicable, combined will be subject to any limitation of liability provisions (including any agreed aggregate financial cap) that apply under the Agreement.
11.2 Liability Cap Exclusions. Nothing in Section 12.1 (Liability Cap) will affect the remaining terms of the Agreement relating to liability (including any specific exclusions from any limitation of liability).
12. Effect of this Addendum
Notwithstanding anything to the contrary in the Agreement, in the event of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.
Appendix 1: Subject Matter and Details of the Data Processing
1. Subject Matter: Vendor’s provision of the Service and Support to Customer.
2. Duration of the Processing: The Term plus the period from the expiry of the Term until deletion of all Customer Data by Vendor in accordance with the Terms.
3. Nature and Purpose of the Processing: Vendor will process Customer Personal Data for the purposes of providing the Service and Support to Customer in accordance with the Agreement, including this Addendum.
4. Categories of Data: Data relating to individuals provided to Vendor via the Service, by (or at the direction of) Customer.
5. Data Subjects: Data subjects include the individuals about whom data is provided to Vendor via the Service by (or at the direction of) Customer.
Appendix 2: Security Measures
As from the Terms Effective Date, Vendor will implement and maintain the Security Measures described in this Appendix 2.
1. Data Access and Storage
1.1 Access Controls. Customer’s administrators and end Users must authenticate themselves via a central authentication system or via a single sign on system to use the Service.
1.2 Encryption. Vendor makes encryption available.
1.3 Storage and Sharing. Vendor stores data in a multi-tenant environment. Subject to any Customer instructions to the contrary, Vendor replicates Customer Data between multiple geographically dispersed data centers. Vendor also logically isolates Customer Data, and logically separates each end user’s data from the data of other end users, and data for an authenticated end user will not be displayed to another end user (unless the former end user or an administrator allows the data to be shared). Customer will be given control over specific data sharing policies. Those policies, in accordance with the functionality of the Service, will enable Customer to determine the product sharing settings applicable to end users for specific purposes.
1.4 Network.
1.4.1 Data Transmission. Vendor transfers data via Internet standard protocols.
1.4.2 External Attack Surface. Vendor employs multiple layers of network devices and intrusion detection to protect its external attack surface. Vendor considers potential attack vectors and incorporates appropriate purpose built technologies into external facing systems.
Intrusion Detection. Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. Vendor’s intrusion detection involves:
1. tightly controlling the size and make-up of Vendor’s attack surface through preventative measures;
2. employing intelligent detection controls at data entry points; and
3. employing technologies that automatically remedy certain dangerous situations.
1.5 Incident Response. Vendor monitors a variety of communication channels for security incidents, and Vendor’s security personnel will react promptly to known incidents
2. Personnel
2.1 Infrastructure Security Personnel. Vendor has, and maintains, a security policy for its personnel, and requires security training as part of the training package for its personnel. Vendor’s infrastructure security personnel are responsible for the ongoing monitoring of Vendor’s security infrastructure, the review of the Service, and responding to security incidents.
2.2 Vendor Personnel. Vendor personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. Vendor conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, Vendor’s confidentiality and privacy policies. Personnel are provided with security training. Personnel handling Customer Data are required to complete additional requirements appropriate to their role (e.g., certifications). Vendor’s personnel will not process Customer Data without authorization.
2.3 Internal Data Access Processes and Policies – Access Policy. Vendor’s internal data access processes and policies are designed to prevent unauthorized persons and/or systems from gaining access to systems used to process personal data. Vendor designs its systems to: (i) only allow authorized persons to access data they are authorized to access; and (ii) ensure that personal data cannot be read, copied, altered or removed without authorization during processing. The systems are designed to detect any inappropriate access. Vendor employs a centralized access management system to control personnel access to production servers, and only provides access to a limited number of authorized personnel. Vendor’s authentication and authorization systems are designed to provide Vendor with secure and flexible access mechanisms. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information. Vendor requires the use of unique user IDs, strong passwords, two factor authentication and carefully monitored access lists to minimize the potential for unauthorized account use. The granting or modification of access rights is based on: the authorized personnel’s job responsibilities; job duty requirements necessary to perform authorized tasks; and a need to know basis. The granting or modification of access rights must also be in accordance with Vendor’s internal data access policies and training. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include restrictions on password reuse and sufficient password strength.
3. Subprocessor Security
Before onboarding Subprocessors, Vendor conducts appropriate due diligence of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once Vendor has assessed the risks presented by the Subprocessor, then subject to the requirements described in Section 10.2 (Requirements for Subprocessor Engagement) of this Data Processing Addendum, the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms.
4. Business Continuity
Vendor has designed and regularly plans and tests its business continuity planning/disaster recovery programs.
