Subscription Services Agreement
Posted: February 10, 2023
Effective: February 10, 2023
This Subscription Services Agreement (this “Agreement”) is between Pronto Technology, Inc. (“Pronto”) and the organization agreeing to these terms (“Customer”). Pronto and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in Exhibit C. This Agreement governs access to and use of the Services. By clicking "I agree," signing your Order Form for the Services, or using the Services, you agree to the Agreement as a Customer.
If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.
- SUBSCRIPTION SERVICES.
1.1 Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Pronto hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Services solely for Customer’s internal business purposes during the Term; provided that Customer strictly complies with its obligations in this Agreement and such use is consistent with the intended use of the Subscription Services as described in the Documentation.
1.2 Restrictions. Except as expressly permitted by this Agreement, Customer will not, and will not permit any third Party (including Authorized Users) to, use the Subscription Services in any manner beyond the scope of the rights expressly granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any third Party to: (a) modify or create derivative works of the Subscription Services, in whole or in part; (b) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (c) sell, resell, rent or lease use of the Subscription Services to any other third Party, or otherwise allow the Subscription Services to be used for any purpose other than for the benefit of Customer in accordance with this Agreement; (d) use the Subscription Services to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data (including any Customer Materials) for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Subscription Services; (e) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; (f) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Pronto for use expressly for such purposes; (g) use the Subscription Services, Documentation or any other Confidential Information of Pronto to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services; (h) use the Subscription Services in any way that exceeds any applicable usage limitations as may be specified in the applicable Order Form; or (i) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Subscription Services.
1.3 Authorized Users. Customer will not permit any other third Party to access, use or operate the Subscription Services, except for that Customer may permit Authorized Users to access and use the Subscription Services consistent with the terms of this Agreement; provided that Customer will ensure that each such Authorized User complies with all applicable terms and conditions of the Agreement, and Customer is fully and directly responsible to Pronto for any act or omission by each such Authorized User in connection with the Authorized User’s use of the Subscription Services. Pronto may collect data about Customer and its Authorized Users that Customer and its Authorized Users: (a) provide to Pronto in connection with the creation or administration of their account; or (b) generate in connection with their use of the Subscription Services (“Account Data”). For example, Account Data may include an Authorized User’s name, username, email address, and usage data associated with an Authorized User’s account. Pronto will process Account Data to provide the Subscription Services and in accordance with its Privacy Notice available at: https://www.gopronto.io/privacy-policy/. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services, and will promptly notify Pronto if Customer or any Authorized User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created. Customer will further ensure that no Authorized User misrepresents their identity or otherwise provides any deceptive or misleading profile information when creating an account in connection with the Subscription Services.
1.4 Customer Materials. Customer will: (a) provide Pronto with the Customer Materials in the form and format requested by Pronto, or as otherwise required to access and use the Subscription Services; (b) be responsible for all Customer Materials; (c) ensure compliance with all laws, rules, and regulations applicable to its use of the Subscription Services; and (d) obtain all waivers, consents and other rights necessary for Pronto to use the Customer Materials to provide the Subscription Services to Customer. As between Customer and Pronto, with respect to Authorized Users, Customer remains solely responsible and liable for complying with all applicable data protection laws. Where Pronto processes Customer Materials that are “personal data” or “personal information,” Pronto will comply with the Data Processing Addendum attached hereto as Exhibit D.
1.5 Modification, Suspension, or Termination. Customer acknowledges and agrees that the Subscription Services may be modified, upgraded, or updated at any time during the Term. Pronto is entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s or any Authorized User’s access to any or all parts of the Subscription Services at any time in the event that: (a) Pronto reasonably suspects that the Subscription Services are being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) Pronto determines that the Subscription Services is being used in an unauthorized or fraudulent manner. Pronto will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s or any Authorized User’s right to use the Subscription Services in accordance with this Section 1.5.
1.6 Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access, use, and/or disclose Customer Materials to compatible third-Party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Pronto does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
1.7 Support. Pronto will provide Customer with reasonable technical support for the Subscription Services on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Pacific Time, with the exception of U.S. federal holidays, by email, phone and/or in-product chat.
- FEES AND PAYMENT.
2.1 Fees. Customer will pay Pronto the fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Pronto will issue invoices to Customer and Customer will pay all amounts set forth on any such invoice no as set forth in the relevant Order Form. Pronto reserves the right to change the Fees and to institute new charges and Fees at the end of relevant Order Form Initial Term or then-current Order Form Renewal Term, upon prior notice to Customer. If Customer has signed up for automatic billing, Pronto will charge Customer’s selected payment method (such as a credit card or debit card) for any Fees on the applicable payment date, including any applicable taxes. If Pronto cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Pronto will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Pronto may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
2.2 Payments. Payments due to Pronto under this Agreement must be made in U.S. dollars. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Pronto may suspend access to the Subscription Services until all payments are made in full. Customer will reimburse Pronto for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
2.3 Taxes. The Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Pronto’s net income) unless Customer has provided Pronto with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Pronto on account thereof.
3.1 Term. This Agreement commences on the Effective Date identified in the cover page of this Agreement and, unless terminated earlier pursuant to this Agreement, will continue in effect for as long as there is an Order Form in effect (the “Term”). The initial term of each Order Form will be as set forth therein (the “Order Form Initial Term”). Except if otherwise set forth in the Order Form, following the Order Form Initial Term, each Order Form will renew for additional periods of the same duration as the Order Form Initial Term (each, an “Order Form Renewal Term”), unless either Party provides the other Party with at least thirty (30) days’ written notice of its intent not to renew the Order Form prior to the end of the then-current term.
3.2 Termination. Without limiting any right or remedy available to either Party, either Party may terminate this Agreement (including all Order Forms), effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach remains uncured for thirty (30) days or longer after the non-breaching Party provides the breaching Party with written notice of such breach.
3.3 Effect of Termination. Upon termination or expiration of each Order Form: (a) the licenses granted to Customer with respect to such Order Form will terminate; (b) Customer will, and will cause its Authorized Users to, immediately cease using the Subscription Services, and will destroy all copies of all Documentation or other content provided by Pronto hereunder, with respect to such Order Form; (c) Pronto will have no further obligation to provide access to the Subscription Services under such Order Form; (d) Customer will pay any unpaid Subscription Fees with respect to such Order Form; and (e) each Party will return or destroy all copies of Confidential Information of the other Party (in accordance with the other Party’s direction) with respect to such Order Form. After the effective date of termination or expiration of each Order Form, Pronto will have no obligation to maintain or provide Customer Materials relating to such Order Form, and may, in its sole discretion, delete or destroy all copies of such Customer Materials in the Subscription Services or in Pronto’s possession or control.
3.4 Survival. Sections 1.2 (Restrictions), 1.3 (Authorized Users), 2.1 (Fees), 2.2 (Payments), 2.3 (Taxes), 3.3 (Effect of Termination), 3.4 (Survival), 4 (Intellectual Property Rights), 5 (Confidentiality), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9 (Dispute Resolution; Arbitration Agreement; No Class Action) and 10 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement and any Order Form.
- INTELLECTUAL PROPERTY RIGHTS.
4.1 Pronto. Subject to the limited rights expressly granted hereunder, Pronto reserves and, as between the Parties will solely own, the Pronto IP and all rights, title and interest in and to the Pronto IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
4.2 Customer. Pronto acknowledges that, as between Pronto and Customer and except as set forth in this Section 4.2, Customer owns and retains all right, title and interest in and to all Customer Materials. Customer hereby grants Pronto a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services, Professional Services and Pronto’s other related products, services and technologies during the Term.
4.3 Feedback. From time to time Customer or its employees, contractors, or representatives may provide Pronto with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants Company a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Pronto’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.
4.4 Trademarks and References. Customer hereby grants Pronto a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) in connection with: (i) the operation and maintenance of the Subscription Services during the Term; and (ii) Pronto’s marketing and promotional efforts for the its products and Subscription Services, including by publicly naming Customer as a client of Pronto during or after the Term. All goodwill and improved reputation generated by Pronto’s use of the Customer Marks inures to the exclusive benefit of Customer. Pronto will use the Customer Marks in the form stipulated by Customer and in writing and will observe such standards as Customer prescribes in writing from time to time in connection with the license granted hereunder.
5.1 Confidential Information. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third Party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
5.2 Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Pronto may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
5.3 Term. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) 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.
5.4 This Agreement. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
- REPRESENTATIONS AND WARRANTIES.
6.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
6.3 Professional Services Warranty. Pronto warrants that Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Customer’s sole and exclusive remedy and Pronto’s entire liability for any breach of the foregoing warranty, Pronto will promptly re-perform any Professional Services that fail to meet this limited warranty.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES AND OTHER PRONTO IP ARE PROVIDED ON AN “AS IS” BASIS, AND PRONTO MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE PRONTO IP, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRONTO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, PRONTO HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
7.1 Indemnification by Pronto. Pronto will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third Party alleging that the use of the Subscription Services in accordance with this Agreement violate, infringe or misappropriate a third Party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid or payable by Customer under a Pronto and court-approved settlement of, a Claim Against Customer, provided Customer: (a) promptly gives Pronto written notice of the Claim Against Customer, (b) gives Pronto sole control of the defense and settlement of the Claim Against Customer (except that Pronto may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability for past infringements), and (c) gives Pronto all reasonable assistance. If Pronto receives information about an infringement or misappropriation claim related to the Subscription Services, Pronto may in its discretion and at no cost to Customer: (i) modify the Subscription Services so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (iii) terminate Customer’s access to the Subscription Services upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated Subscription Services. Pronto will not have any obligations under this Section 7.1 or any liability to the extent (A) a Claim Against Customer arises from Customer Materials, a Third Party Service or Customer’s breach of this Agreement, or (B) the Claim Against Customer would not have arisen but for (I) Customer’s combinations of the Subscription Services with software, data or materials not provided or approved by Pronto, (II) modification of the Subscription Services by anyone other than Pronto, (III) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Pronto’s customization of the Subscription Services to meet Customer’s particular specifications or instructions, or (V) Customer’s use of the Subscription Services in a manner not strictly in accordance with this Agreement. The rights and remedies set forth in this Section 7.1 will constitute Pronto’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
7.2 Indemnification by Customer. Customer will defend Pronto against any claim, demand, suit or proceeding made or brought against Pronto by a third Party (a) alleging that the Customer Materials (or Pronto’s use thereof), or Customer’s use of any Subscription Services in breach of this Agreement, violates, infringes or misappropriates a third Party’s Intellectual Property Right, privacy or other rights, or violates applicable law, or (b) acts or omissions by Customer described in Section 7.1(B)(I)-(V) (collectively, a “Claim Against Pronto”), and will indemnify and hold harmless Pronto from any damages, attorney fees and costs finally awarded against Pronto as a result of, or for any amounts paid or payable by Pronto under a settlement of, a Claim Against Pronto. Pronto will: (i) promptly give Customer written notice of the Claim Against Pronto, (ii) give Customer sole control of the defense and settlement of the Claim Against Pronto (except that Customer must give Pronto approval over any settlement), and (iii) gives Customer all reasonable assistance, at Customer’s cost.
- LIMITATION OF LIABILITY.
8.1 Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PRONTO IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 Total Liability. IN NO EVENT WILL PRONTO’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE PRONTO IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PRONTO IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT PRONTO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.3 Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN PRONTO AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
- DISPUTE RESOLUTION; ARBITRATION AGREEMENT; NO CLASS ACTION.
9.1 Dispute Resolution. The Parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration in accordance with this Section 9. A single arbitrator will conduct the arbitration in Santa Clara County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The Parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The Parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the Parties. Either Party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.
9.2 No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the Parties may be consolidated with any other arbitration proceeding involving Pronto and any other person or entity. Each Party shall file and prosecute arbitration proceedings separately and individually in the name of Customer and Pronto, and not in any representative capacity. Each Party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.
9.3 Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Subscription Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by state or federal courts located in Santa Clara County, California, and each Party consents to the exclusive jurisdiction of those courts. Further, Pronto may obtain injunctive or other equitable relief in any court of competent jurisdiction in the event of any infringement or threatened infringement of its Intellectual Property Rights. Neither Party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.
- GENERAL PROVISIONS
10.1 Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
10.2 Notices. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such Party. All notices will be sent to the following address: If to Customer, to the name and address contained in the applicable Order Form or to the email address provided upon registration for the Subscription Services. If to Pronto: Pronto Technology, Inc., Attn: Legal Department; 20380 Town Center Lane, Suite 218, Cupertino, CA 9501,4 firstname.lastname@example.org. Such addresses may be changed by notice given by one Party to the other pursuant to this Section.
10.3 Export Control. Customer will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from Pronto, without first complying with the United States and all other applicable government laws and regulations governing the export, re-export, and import of those items.
10.4 Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 1.Error! Reference source not found., would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10.5 Miscellaneous. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
“Authorized User” means an employee or contractor of Customer or of a Customer’s channel or business partner whom Customer has authorized to use the Subscription Services.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Pronto in connection with Customer’s use of the Subscription Services. Customer Materials do not include Account Data.
“Documentation” means the user manuals, materials and specifications relating to the Subscription Services made available by Pronto at https://docs.gopronto.io, as updated from time to time.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Pronto in writing; or (iii) quote issued by Pronto and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services and/or Professional Services to be provided by Pronto.
“Professional Services” means the implementation and/or other professional services, if any, to be provided by Pronto to Customer as set forth in the relevant Order Form.
“Pronto IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, and Documentation, Account Data, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Subscription Services” means Pronto’s proprietary software platform provided to manage and automate a customer’s partner ecosystems, as further described in the applicable Order Form.
This Data Processing Addendum (“Addendum”) forms part of the Pronto Subscription Services Agreement (the “Agreement”) between Customer and Pronto.
1.1 Subject Matter. This Addendum reflects the Parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with Pronto’s execution of the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum or any of its Attachments conflicts with the Agreement, this Addendum shall control.
1.2 Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement or upon the date that the Parties sign this Addendum if it is completed after the effective date of the Agreement. Pronto will Process Customer Personal Data until the relationship terminates as specified in the Agreement.
2.1 “Customer Personal Data” means Customer Materials that are “personal data” or “personal information” under applicable Data Protection Laws.
2.2 “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. “Data Protection Laws” may include, but are not limited to, the California Consumer Privacy Act of 2018 (“CCPA”) and the EU General Data Protection Regulation 2016/679 (“GDPR”).
2.3 “Process” or “Processing” means any operation or set of operations which is performed on Customer Personal Data or sets of Customer Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.4 “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Pronto.
2.5 “Subprocessor(s)” means Pronto’s authorized vendors and third party service providers that Process Customer Personal Data.
3.1 Customer Personal Data. Pronto shall Process Customer Personal Data to provide the Subscription Services in accordance with the Agreement, this Addendum, any applicable Order Form, and any instructions agreed upon by the Parties. Pronto will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
3.2 Authorization to Use Subprocessors. To the extent necessary to fulfill Pronto’s contractual obligations under the Agreement, Customer hereby authorizes Pronto to engage Subprocessors.
3.3 Pronto and Subprocessor Compliance. Pronto agrees to (a) enter into a written agreement with Subprocessors regarding such Subprocessors’ Processing of Customer Personal Data that imposes on such Subprocessors data protection requirements for Customer Personal Data that are consistent with this Addendum; and (b) remain responsible to Customer for Pronto’s Subprocessors’ failure to perform their obligations with respect to the Processing of Customer Personal Data.
3.4 Right to Object to Subprocessors. Where required by Data Protection Laws, Pronto will notify Customer via email prior to engaging any new Subprocessors that Process Customer Personal Data and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new Subprocessor, the Parties will work together in good faith to resolve the grounds for the objection.
3.5 Confidentiality. Any person authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
3.6 Personal Data Inquiries and Requests. Where required by Data Protection Laws, Pronto agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws.
3.7 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Pronto agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgement, the type of Processing performed by Pronto requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
3.8 Demonstrable Compliance. Pronto agrees to provide information reasonably necessary to demonstrate compliance with this Addendum upon Customer’s reasonable request.
4.1 Security Safeguards. Pronto will implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data in accordance with the Pronto Information Security Standards attached hereto as Attachment A.
5.1 Notice. Upon becoming aware of a Security Incident, Pronto agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer’s Designated POC. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
6.1 Cross-Border Transfers of Personal Data. Customer authorizes Pronto and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
6.2 Standard Contractual Clauses. If Customer Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to Pronto in a country that has not been found to provide an adequate level of protection under Data Protection Laws, the Parties agree that the terms of the transfer shall be governed by the Standard Contractual Clauses attached hereto as Attachment B. Each Party’s signature to the Agreement shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
7.1 Customer Audit. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may carry out an audit of Pronto’s policies, procedures, and records relevant to the Processing of Customer Personal Data. Any audit must be: (a) conducted during Pronto’s regular business hours; (b) with reasonable advance notice to Pronto; (c) carried out in a manner that prevents unnecessary disruption to Pronto’s operations; and (d) subject to reasonable confidentiality procedures. In addition, any audit shall be limited to once per year, unless an audit is carried out at the direction of a government authority having proper jurisdiction.
8.1 Data Deletion. At the expiry or termination of the Agreement, Pronto will, at Customer’s option, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Pronto’s data retention schedule), except where Pronto is required to retain copies under applicable laws, in which case Pronto will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
9.1 Subject Matter. The subject matter of the Processing is the Subscription Services pursuant to the Agreement.
9.2 Duration. The Processing will continue until the expiration or termination of the Agreement.
9.3 Categories of Data Subjects. Data subjects whose Customer Personal Data will be Processed pursuant to the Agreement.
9.4 Nature and Purpose of the Processing. The purpose of the Processing of Customer Personal Data by Pronto is the performance of the Subscription Services.
9.5 Types of Customer Personal Data. Customer Personal Data that is Processed pursuant to the Agreement.
Pronto Information Security Standards
This Attachment A forms part of the Addendum.
Pronto will implement and maintain an information security program (“Information Security Program”) that: (a) is consistent with industry standard practices taking into consideration the sensitivity of the relevant Customer Personal Data, and the nature and scope of the Subscription Services to be provided; (b) includes reasonable administrative, technical and physical safeguards designed to protect Customer Personal Data; and (c) complies with Data Protection Laws. At a minimum, the Information Security Program shall include:
2. Training. Pronto will provide information security awareness training to all employees annually.
3. Access Control. Pronto will maintain an access control policy, procedures, and controls consistent with industry standard practices. Pronto will limit access to Customer Personal Data to those employees and Subprocessors with a need-to-know.
4. Logical Separation. Pronto will ensure Customer Personal Data is logically separated from other Pronto client data.
5. Encryption. Customer Personal Data will be encrypted in-transit and at rest using industry standard encryption technologies.
6. Password Management. Pronto will maintain a password management policy designed to ensure strong passwords consistent with industry standard practices.
7. Incident Response Plan. Pronto will maintain an incident response plan that addresses Security Incident handling. Upon request, Pronto will provide Customer with a copy of its incident response plan.
8. Penetration Testing. At least once per year, Pronto will retain an independent third-party to carry out a penetration test of Pronto’s key systems. Issues identified are classified according to risk, analyzed and remediated in a timely manner.
9. Backups of Customer Personal Data. Pronto will maintain an industry standard backup system and backup of Customer Personal Data to facilitate timely recovery in the event of a service interruption.
10. Disaster Recovery and Business Continuity Plans. Pronto will maintain disaster recovery and business continuity plans consistent with industry standard practices
STANDARD CONTRACTUAL CLAUSES
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses,
as listed in Annex I.A (hereinafter each ‘data importer’)have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
(e) To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.
(f) To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Docking clause – Omitted
Data protection safeguards
MODULE TWO: Transfer controller to processor
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I. B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
MODULE TWO: Transfer controller to processor
(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
MODULE TWO: Transfer controller to processor
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
MODULE TWO: Transfer controller to processor
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory
authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
MODULE TWO: Transfer controller to processor
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub- processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
MODULE TWO: Transfer controller to processor
(a) Where the data exporter is established in an EU Member State, the following section applies: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the following section applies: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the following section applies: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
Local laws and practices affecting compliance with the Clauses
MODULE TWO: Transfer controller to processor
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels
used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the
economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by
such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures
applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements
in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
MODULE TWO: Transfer controller to processor
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of
personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting
authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the
country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is
not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non- compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
MODULE TWO: Transfer controller to processor
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third- party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Choice of forum and jurisdiction
MODULE TWO: Transfer controller to processor
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
1. Name: Customer.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position and contact details: Customer’s Pronto account administrator (“Customer Designated POC”)
Activities relevant to the data transferred under these Clauses: The Subscription Services.
Role (controller/processor): Controller.
1. Name: Pronto.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position and contact details: email@example.com.
Activities relevant to the data transferred under these Clauses: The Subscription Services.
Role (controller/processor): Processor.
B. DESCRIPTION OF TRANSFER
MODULE TWO: Transfer controller to processor
Categories of data subjects whose personal data is transferred
As set forth in Section 9.3 of the Addendum.
Categories of personal data transferred
As set forth in Section 9.5 of the Addendum.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
To the parties’ knowledge, no sensitive data is transferred.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal data is transferred in accordance with the standard functionality of the Subscription Services, or as otherwise agreed upon by the parties.
Nature of the processing
The Subscription Services.
Purpose(s) of the data transfer and further processing
The Subscription Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Personal data will be retained in accordance with the Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
A list of data importer’s subprocessors can be provided upon data exporter’s written request.
C. COMPETENT SUPERVISORY AUTHORITY
MODULE TWO: Transfer controller to processor
The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
D. ADDITIONAL DATA TRANSFER IMPACT ASSESSMENT QUESTIONS
Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Standard Contractual Clauses? For example, FISA Section 702. If yes, please list these laws:
As of the effective date of the Agreement, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, including FISA Section 702, and no such court action is pending.
Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain:
Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain:
E. DATA TRANSFER IMPACT ASSESSMENT OUTCOME
Taking into account the information and obligations set forth in the Agreement and, as may be the case for a party, such party’s independent research, to the parties’ knowledge, the personal data originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred pursuant to the Clauses to a country that has not been found to provide an adequate level of protection under applicable data protection laws is afforded a level of protection that is essentially equivalent to that guaranteed by applicable data protection laws.
F. SUPPLEMENTAL TERMS
The parties agree that: (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 7 of the Addendum; (iv) where permitted by applicable data protection laws, data importer may engage existing subprocessors using European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors and such use of subprocessors shall be deemed to comply with Clause 9 of the Clauses; (v) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses, in which case, the corresponding processing of personal data affected by such termination shall be discontinued unless otherwise agreed by the parties; (vi) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; (vii) the information required under Clause 15.1(c) will be provided upon data exporter’s written request; and (viii) notwithstanding anything to the contrary, data exporter will reimburse data importer for all costs and expenses incurred by data importer in connection with the performance of data importer’s obligations under Clause 15.1(b) and Clause 15.2 of the Clauses without regard for any limitation of liability set forth in the Agreement.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
MODULE TWO: Transfer controller to processor
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Data importer shall implement and maintain appropriate technical and organisational measures designed to protect personal data in accordance with the Addendum.
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the Addendum.
Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018
UK Addendum to the EU Commission Standard Contractual Clauses
Date of this Addendum:
1. The Clauses are dated as of the same date as the Addendum.
2. The Information Commissioner considers this Addendum provides appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors. This Addendum forms part of and supplements the Clauses to which it is attached. If personal data originating in the United Kingdom is transferred by data exporter to data importer in a country that has not been found to provide an adequate level of protection under UK Data Protection Laws, the Parties agree that the transfer shall be governed by the Clauses as supplemented by this Addendum.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Annex those terms shall have the same meaning as in the Annex. In addition, the following terms have the following meanings:
The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021
UK Data Protection Laws
All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
The United Kingdom of Great Britain and Northern Ireland
4. This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 UK GDPR.
5. This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
6. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
7. In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.
Incorporation of the Clauses
8. This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:
a. for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when
making that transfer; and
b. to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
9. The amendments required by Section 8 above, include (without limitation):
a. References to the “Clauses” means this Addendum as it incorporates the Clauses
b. Clause 6 Description of the transfer(s) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are
those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.
c. ”References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of
“Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
d. References to Regulation (EU) 2018/1725 are removed.
e. References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
f. Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner;
g. Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
h. Clause 18 is replaced to state:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the
data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
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