THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR SUBSCRIPTION TO, AND USE OF, THE PRODUCTS (AS DEFINED BELOW) AND PHYSICAL MEDIA (AS DEFINED BELOW), AND ANY OTHER SERVICES, SOFTWARE, HARDWARE OR OTHER PRODUCTS MADE AVAILABLE TO YOU BY MERSIVE TECHNOLOGIES INC. (“MERSIVE”). THIS AGREEMENT FORMS A LEGALLY BINDING AGREEMENT BETWEEN MERSIVE AND YOU THE LICENSEE (REFERRED TO HEREIN AS “CLIENT” OR “YOU” OR “YOUR”), SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY DOWNLOADING, INSTALLING AND/OR USING THE PRODUCTS AND/OR PHYSICAL MEDIA, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT, INCLUDING ALL AMENDMENTS AND ATTACHMENTS HERETO, WITHOUT MODIFICATION AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE PRODUCTS AND/OR PHYSICAL MEDIA. THIS AGREEMENT APPLIES WHETHER THE PRODUCTS AND/OR PHYSICAL MEDIA ARE SOLD DIRECTLY TO YOU BY MERSIVE OR THROUGH AN INTEGRATOR OR OTHER DISTRIBUTOR (SUCH INTEGRATOR OR DISTRIBUTOR, AN “INTEGRATOR”). IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND YOUR AGREEMENT WITH AN INTEGRATOR TO PURCHASE THE PRODUCTS AND/OR PHYSICAL MEDIA, THIS AGREEMENT SHALL CONTROL SOLELY WITH RESPECT TO MERSIVE’S OBLIGATIONS AND LIABILITY TO YOU.
If you are downloading, installing and/or using the Products and Physical Media on behalf of your company, then you represent and warrant to Mersive that you have all requisite power and authority to enter into this Agreement on behalf of the company. All orders placed by you in the Order Form (as defined below) are subject to and governed by the terms and conditions of this Agreement, regardless of whether the Order Forms reference this Agreement. Any different or additional terms or conditions in any order, proposal, acknowledgment form or any other document will be of no force or effect and will not become part of the agreement between you and Mersive. If there is another signed, written agreement in place between you and Mersive with respect to the Products or Physical Media then the terms and conditions of such agreement will prevail in the event of a conflict between the terms and conditions of such agreement and those of this Agreements.
1. DEFINITION.
1.1 “Applicable Privacy Laws” means any and all laws, regulations, directives, ordinances and decrees relating to privacy or data protection that are applicable to a party’s business activities and geographic territory, including, but not limited to (as applicable) (i) the GDPR, Swiss GDPR, and UK GDPR (each as defined in Exhibit A hereto), and (ii) the California Consumer Privacy Act, the California Privacy Rights Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Montana Consumer Data Protection Act, the Florida Digital Bill of Rights, the Texas Data Privacy and Security Act, the Oregon Consumer Privacy Act, the Tennessee Information Protection Act, the Iowa Consumer Data Protection Act, the Delaware Personal Data Privacy Act, and any other applicable present or future state law or regulation that relates to data privacy, data security, or the use or other processing of Personal Data (as defined below) in the United States of America, together with all implementing regulations and as any of the foregoing may be amended from time to time.
1.2 “Documentation” means any end-user documentation provided by Mersive.
1.3 “Order Form” means any written or electronic document mutually agreed to by and between (i) Mersive and Client (including by exchange of emails); and/or (ii) an Integrator (as defined below) and Client (including by exchange of emails, for the provision of Products and/or Physical Media by Mersive to Client. Order Forms shall be deemed incorporated herein by reference.
1.4 “Personal Data” means personal data, personal information, personally identifiable information or any equivalent category of data identifiable to a natural person that is regulated under Applicable Privacy Laws.
1.5 “Products” means collectively, those Mersive proprietary web-based platforms, , software and tools licensed by Client, as well as any updates, modifications, customizations or improvements thereto as Mersive may provide to Client from time to time.
1.6 “Physical Media” means the physical media, hardware, or other equipment containing or enabling Products.
1.7 “Integrator” means an entity that is authorized by Mersive to resell the Products and/or Physical Media to end-customers.
2. LICENSE AND CLIENT RESPONSIBILITIES.
2.1 License. Subject to the terms and limitations set forth in this Agreement, and provided that Mersive has received timely payment of all fees owed under this Agreement, Mersive hereby grants Client a limited, non-transferable and non-sublicensable (except in connection with a permitted assignment of this Agreement), revocable (in connection with termination of this Agreement), worldwide license, during the license term(s) set forth in this Agreement and/or in the applicable Order Form (or similar ordering document), to use the Products and Physical Media, solely for Client’s internal business purposes and solely in accordance with the terms of this Agreement and in accordance with the Documentation. For the avoidance of doubt, software contained in Physical Media may only be used on the Physical Media on which it was initially installed. From time to time, upon Mersive’s reasonable written request, Client shall certify in writing as to its compliance with the terms of this Agreement, including, without limitation, Client’s compliance with any restrictions on Client’s maximum number of users, seats, or licenses.
2.2 Client Responsibilities. Client shall (i) be solely responsible for the provision of the necessary resources, for Mersive to provide its Products and Physical Media, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Products or the Physical Media, and notify Mersive in writing promptly of any such unauthorized access or use, and (iii) use the Products or the Physical Media only for Client’s internal business, and not for service bureau use or time-sharing, nor to provide outsourcing, application service provider or similar services to third parties. Client shall not (or permit any other person to) (A) sell, resell, license, rent or lease any of the Products or Physical Media, (B) use the Products and/or Physical Media to transmit infringing, libelous, or otherwise unlawful or tortious material, or to violate third-party privacy rights, (C) interfere with or disrupt the integrity or performance of any of the Products and/or Physical Media, or any third-party data contained therein, (D) charge a fee to any third party for use of the Products and/or Physical Media; (E) use the Products and/or Physical Media in a manner inconsistent with nor contemplated by this Agreement, or (F) reverse engineer, decompile, translate, adapt, or disassemble the Products or Physical Media, nor shall Client attempt to recreate the source code from the object code for the Products. Client also agrees not to permit any third party acting on its behalf to do any of prohibited activities under this Section 2.1 (Client Responsibilities).
2.3 Compliance with Law. Client agrees to use the Products and Physical Media in accordance with applicable United States laws, the applicable laws of the jurisdiction in which Client was incorporated, and the applicable laws of the jurisdiction where the Products and Physical Media are used, including foreign trade control laws and regulations, copyright laws and other intellectual property laws. The Products and Physical Media may be subject to export and other foreign trade controls that restrict re-sale and/or transfers to other countries and parties.
2.4 Subcontractors. Client hereby understands and agrees that Mersive may utilize subcontractors to perform and deliver the Products and/or Physical Media, provided that Mersive shall at all times remain responsible for such subcontractors to the same nature and extent that Mersive is responsible for its own provision of the Products and Physical Media hereunder.
2.5 Derivative Works and Improvements. Client is prohibited from using the Products or Physical Media to create any change, translation, adaptation, arrangement, addition, modification, extension, upgrade, update, improvement, (including patentable improvements), new version, or other derivative work of or to the Products or Physical Media.
2.6 Software Maintenance. “Updates” means modifications, corrections, or enhancements to Products and Documentation. Mersive will provide Updates at its sole discretion from time to time. Mersive reserves the right, at its sole discretion, to charge You for Updates (except in cases where corrections are provided under the Limited Warranty). You agree that any Updates will be considered part of the Documentation as defined in this Agreement and they shall be governed by the terms and conditions of this Agreement.
3. CLIENT MATERIALS; THIRD PARTIES.
3.1 License to Client Materials: Client hereby grants to Mersive a royalty-free, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to authorized contractors and integrators as Mersive deems necessary to provide the Products and Physical Media), limited license to use, reproduce, modify, transmit, distribute and display Client’s content and materials (collectively, the “Client Materials”) in connection with the provision of the Products and the Physical Media. Except for the limited rights expressly granted in this Agreement, Client reserves all right, title and interest (including all intellectual property rights) in and to the Client Materials. As between Client and Mersive, Client is and shall at all times remain solely responsible and liable for the Client Materials.
3.2 Inappropriate Content and Communications: Mersive may, in its sole discretion and without notice, remove or disable access to content, materials and/or data from the Products and Physical Media, or suspend the ability of Client to access the Products and Physical Media, if Mersive believes in good faith that such content, activities, materials and/or data, as applicable, are infringing or violate applicable law or third-party rights, or threaten legal, operational or reputational harm to Mersive, its systems or clients, or to third parties.
3.3 Third-Party Systems. The Products or Physical Media may integrate with third-party systems, software, and hardware, including, without limitation, third-party teleconferencing software, televisions, computers, and other devices, applications, and websites (collectively, “Third-Party Systems”). Client understands and agrees that Mersive does not control, and has no responsibility or liability for, any Third-Party Systems, or any changes or updates thereto. Client further understands and agrees that Mersive does not control, and has no responsibility for, any of Client’s own systems, hardware, televisions, devices, applications, or websites, or any changes thereto.
4. FEES AND PAYMENT.
4.1 Client Fees. Client agrees to pay all fees due for the Products and Physical Media in accordance with the applicable invoice(s). Client, at its expense, shall fully insure Products and Physical Media against all loss or damage until all fees due to Mersive hereunder have been paid in full. Payment obligations are non-cancelable and fees paid are non-refundable. All Products and Physical Media are accepted upon delivery to Client.
4.2 Suspension of Products or Physical Media. If any charge owing by Client is overdue, Mersive may, without limiting its other rights and remedies, suspend or disallow the use of the Products and/or Physical Media until such amounts are paid in full.
4.3 Audit. Client agrees to keep accurate and complete records from which Client’s compliance with this Agreement can be readily determined, and will make available all relevant information and copies of details or reporting related to such records for Mersive’s (or its authorized agent’s) inspection upon Mersive’s reasonable request.
4.4 Cancellation, Reschedule and Changes. Any order cancellation, change request, or reschedule request must be made in writing. Mersive may grant or reject any such cancellation or request in Mersive’s sole discretion, and, where Mersive grants any such a cancellation or request, Mersive reserves the right to charge a corresponding fee. Order Forms may not be canceled after commencement of the provision of the Products and/or Physical Media by Mersive.
5. PROPRIETARY RIGHTS.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Mersive reserves all rights, title and interest in and to (i) the Products and Physical Media, (ii) all related software and hardware, applications, modules, code (including source and object code), and instructions, processing systems and techniques, inputs and outputs, methodologies and technical information, user documentation and training materials, (iii) all deliverables created by Mersive in connection with any Products and Physical Media provided to Client, and (iv) any customizations, improvements, modifications or derivative works of or to the foregoing, including all related intellectual property rights (collectively, the “Mersive Intellectual Property”). No rights are granted to Client hereunder and/or by the receipt of any Product and/or Physical Media, other than those expressly set forth herein.
5.2 Suggestions. From time to time Client may provide suggestions, enhancement or modification requests, recommendations or other feedback relating to the operation of the Products and/or Physical Media (the “Suggestions”). Mersive owns all right, title and interest in any Suggestions, and Client hereby assigns and transfers to Mersive all its right, title and interest (including all intellectual property rights) in and to the Suggestions.
5.3 Restrictions. Client shall not (i) permit any third party to access any Product and/or Physical Media except as permitted herein, (ii) create derivative works based on the Mersive Intellectual Property or merge it with any other products or services, (iii) copy, frame or mirror any part or content of the Mersive Intellectual Property, (iv) reverse engineer the Mersive Intellectual Property, or (v) access the Product, the Physical Media or the Mersive Intellectual Property in order to (a) build a competitive product or service or for any benchmarking purposes, (b) copy any features, functions or graphics of the Mersive Intellectual Property, or (c) use the Products, Physical Media or the Mersive Intellectual Property other than as set forth in Section 2 (License and Client Responsibilities).
5.4 Risk of Loss and Shipping Terms. The Products and Physical Media are deemed delivered on the earlier of (a) when it is made available by Mersive for electronic download, or (b) when Mersive delivers the Products or Physical Media. Notwithstanding anything to the contrary herein, title to the Physical Media and all risk of loss for the Physical Media will pass to Client when delivered by Mersive to the shipping carrier. Delivery and completion dates are estimates. Mersive will use commercially reasonable efforts to meet desired delivery and completion dates, but will not be liable to Client in any way for any late shipment or completion. Delivery requests not conforming to Mersive’s lead times are subject to expedite fees, in Mersive’s sole discretion. Client will accept and pay for partial shipments of Products and/or Physical Media.
5.5 Error Reporting. Client shall use commercially reasonable efforts to notify Mersive of any failure, error or other malfunction of any Products and/or Physical Media as quickly as practicable.
5.6 Data Processing. To the extent that Client uses any Products and/or Physical Media to process Personal Data, or otherwise directs Mersive to collect and/or process any Personal Data on the Client’s behalf, Client’s and Mersive’s obligations with respect to the processing of such data shall be subject to and governed by the Data Processing Addendum attached hereto as Exhibit A.
6. CONFIDENTIALITY.
6.1 Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business research, procedures and costs, financial data, distribution methods, marketing data, methods, plans and efforts, the identities and terms of engagements with actual and prospective suppliers or clients, personnel information, and information received from third parties subject to obligations of non-disclosure or non-use. The Products and Physical Media, as well as results of benchmark and other tests run by either party with respect to the Products and Physical Media, shall be deemed Confidential Information of Mersive without any need for any markings or legends. Confidential Information of Mersive shall include the Mersive Intellectual Property and the terms and conditions of this Agreement. Notwithstanding anything in this Section 6.1 (Confidential Information) to the contrary, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Usage Data. Notwithstanding anything in this Agreement to the contrary, Mersive may retain and use, without restriction, generic, aggregated data which is derived from usage of the Products and Physical Media, and does not identify Client for Mersive’s business purposes, including, without limitation, in order to provide and improve Mersive’s Products and Physical Media.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if disclosure is reasonably necessary in the opinion of Receiving Party to (i) comply with legal or administrative process (including to, civil and criminal subpoenas, court orders or other compulsory disclosures); or (ii) enforce this Agreement. Disclosure is permitted pursuant to this Section 6.4 (Compelled Disclosure) provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS.
7.1 Mutual Warranties. Each party represents and warrants that (i) it has been duly authorized under applicable corporate laws to enter into this Agreement, and (ii) it will comply with all applicable laws in its performance hereunder.
7.2 Mersive Functional Warranty. Mersive warrants that all Products and Physical Media shall conform materially to the applicable user documentation published by Mersive during the applicable warranty period (the “Limited Warranty”). For Polaris Pro and Polaris Essentials: Full warranty while on active subscription; on a perpetual license it is capped at seven years. For other Products and Physical Media, the warranty period is three (3) years following delivery to the Client, unless a longer period is set forth in the applicable Order Form. As Mersive’s sole liability and Client’s sole and exclusive remedy for any breach of the Limited Warranty, Mersive shall re-perform any defective Products and/or Physical Media at no additional cost and use reasonable efforts to remediate any material non-conformities in the Products or Physical Media within a reasonable time period. Notwithstanding the foregoing, Mersive shall not be responsible for any breach of the Limited Warranty, or any other defects or non-conformities, to the extent arising from (i) Client’s misuse of Products and/or Physical Media or breach of this Agreement, (ii) any modification of Products and/or Physical Media by a person other than Mersive or its authorized subcontractors, (iii) Client’s failure to maintain minimum technology standards for use of the Products and Physical Media as specified by Mersive from time to time, (iv) the Client Materials or Client’s systems, hardware, televisions, devices, applications, or websites, (v) an event of Force Majeure as provided in Section 11.10 (Force Majeure) below, (vi) Mersive’s failure to provide a suitable installation or operating environment for the Products or Physical Media, (vii) use of the Products and Physical Media on or caused by software, firmware, computer systems, data, technology or a hardware platform not approved by Mersive in writing, or (viii) any telecommunications medium used by Client.
7.3 Client Materials Warranty. Client warrants that (i) Client’s use of the Products and Physical Media, and Client’s provision of any Client Materials (including but not limited to any Regulated Data) to Mersive hereunder in connection therewith, is in compliance with Client’s privacy policies and all applicable legal and regulatory requirements; (ii) the Client Materials do not infringe upon or violate the rights of any third party; and (iii) Client has obtained all permissions and consents from users and as required for Client’s usage of the Products or Physical Media, and Client will provide Mersive with evidence of any required permission or consent upon request.
7.4 Disclaimer of Warranties.
7.4.1 EXCEPT FOR THE EXPRESS WARRANTIES MADE HEREIN, THE PRODUCTS AND PHYSICAL MEDIA ARE PROVIDED “AS IS,” AND MERSIVE MAKES AND CLIENT RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND MERSIVE SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, SECURITY, OR UNINTERRUPTED OR ERROR-FREE OPERATION; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR STATUTORY REMEDY.
7.4.2 MERSIVE SHALL HAVE NO LIABILITY WHATSOEVER ARISING FROM ANY THIRD-PARTY SYSTEMS, HARDWARE, DEVICES, APPLICATIONS, WEBSITES, OR COMPONENTS.
7.4.3 NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING SUITABILITY FOR USE, SHALL BE DEEMED TO BE A WARRANTY BY MERSIVE OR ANY OF ITS AFFILIATES OR THIRD-PARTY SUPPLIERS.
7.4.4 MERSIVE DOES NOT WARRANT THAT THE PRODUCTS AND/OR PHYSICAL MEDIA ARE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, THAT ANY PRODUCTS AND/OR PHYSICAL MEDIA WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE PRODUCTS OR PHYSICAL MEDIA WILL BE CORRECTED, OR THAT THE PRODUCTS OR PHYSICAL MEDIA WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, SYSTEMS, HARDWARE, TELEVISIONS, DEVICES, APPLICATIONS, WEBSITES OR THIRD PARTY SERVICES. INSTALLATION OF PRODUCTS OR PHYSICAL MEDIA MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, SYSTEMS, HARDWARE, TELEVISIONS, DEVICES, APPLICATIONS, WEBSITES, OR THIRD PARTY SERVICES.
8. INDEMNIFICATION.
8.1 Indemnification by Mersive. Mersive shall indemnify, defend, and hold harmless Client and its employees, agents, and representatives, from and against any claim, demand, suit, or proceeding (each, a “Claim”) made or brought against Client by a third party, and any out-of-pocket costs, damages, fines, penalties, expenses, and fees (including reasonable attorneys’ fees) (collectively, “Costs”) incurred by Client in connection therewith, alleging that the Products and/or Physical Media, as used in accordance with this Agreement, infringe or misappropriate a United States patent, copyright, or trademark right of a third party. Notwithstanding the foregoing, Mersive shall not be responsible to the extent that any alleged infringement or misappropriation arises from (i) the Client Materials or Client’s systems, hardware, televisions, devices, applications, or websites, (ii) alterations made by Client or third parties to Products and/or Physical Media without Mersive’s written authorization, (iii) any specifications, instructions or other information provided by Client, (iv) breach of this Agreement, use of the Products or Physical Media not authorized by the Documentation, or other improper or unauthorized use of the Products and/or Physical Media by Client or any third party obtaining access through Client, or (v) combination of the Products and/or Physical Media with products or services that are not provided by Mersive. Should any Products and/or Physical Media become, or in Mersive’s opinion likely to become, the subject of a Claim of infringement or misappropriation, Mersive shall, at its option and expense either: (i) procure for Client the right to continue to use the Products and/or Physical Media, or (ii) replace or modify the infringing Products and/or Physical Media to make their use non-infringing without loss of substantial functionality, provided that when returning any Products and/or Physical Media to Mersive subject to such Claim, Client shall comply with Mersive’s then-current return material authorization procedure, and Client will pay freight on Products returned to Client that are not covered by a Claim. Notwithstanding the foregoing, if Mersive, in its sole discretion, determines that neither of the said options is available to it on commercially reasonable terms, Mersive, at its option, may terminate the provision or Client’s use of the allegedly infringing Products and/or Physical Media and equitably reduce any ongoing fees accordingly. THIS SECTION 8.1 (INDEMNIFICATION BY MERSIVE) STATES THE ENTIRE LIABILITY OF MERSIVE WITH RESPECT TO THE INFRINGEMENT OF ANY UNITED STATES PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY RELATED TO THE PRODUCTS AND/OR PHYSICAL MEDIA, OR THEIR USE.
8.2 Indemnification by Client. Client shall indemnify, defend, and hold harmless Mersive and its employees, agents, and representatives, from and against any Claim made or brought against Mersive by a third party, and any Costs incurred by Mersive in connection therewith, arising from or relating to (i) Client’s use of the Products or Physical Media, including, without limitation, any use that exceeds the scope of the license rights granted in Section 2 (License and Client Responsibilities), above, (ii) the Client Materials, and/or Client’s systems, applications, or websites, (iii) any breach of applicable law or regulation by Client (including but not limited to Applicable Privacy Laws), (iv) for bodily harm, wrongful death, or damage to property arising from the acts or omissions of Client or in connection with the Products and/or Physical Media , or (v) the negligence or willful misconduct of Client, its employees, agents or contractors.
8.3 Indemnification Procedure. The indemnified party shall (i) promptly notify the indemnifying party in writing of any Claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) reasonably cooperate in the defense or settlement of any such Claim, demand or action, at the expense of the indemnifying party, and (iii) give the indemnifying party sole control over the defense or settlement of any such Claim; provided, however, the indemnifying party shall not enter into any settlement without the indemnified party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the indemnified party or its affiliates or other indemnified persons, (2) includes a consent to an injunction or similar relief or otherwise imposes any obligation binding upon the indemnified party or its affiliates or other indemnified persons or (3) provides for relief other than monetary damages that the indemnifying party solely bears.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. IN NO EVENT SHALL MERSIVE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID TO MERSIVE BY CLIENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT.
9.2 Exclusion of Certain Damages.IN NO EVENT SHALL MERSIVE HAVE ANY LIABILITY TO CLIENT FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CLIENT’S USE OR INABILITY TO USE THE PRODUCTS AND PHYSICAL MEDIA OR ANY THIRD PARTY SYSTEMS, HARDWARE, SOFTWARE, DEVICES, TELEVISIONS, WEBSITES, OR APPLICATIONS IN CONJUNCTION WITH THE PRODUCTS AND PHYSICAL MEDIA, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Material Part of Agreement. Client agrees that the exclusions and limitations of liability in this Section 9 (Limitation of Liability) are a material inducement and consideration for Mersive to enter into this Agreement and provide the Products and Physical Media at their current pricing. Accordingly, such provisions shall be enforced as written even if a remedy fails of its essential purpose.
10. TERM AND TERMINATION.
10.1 Term of Agreement. The term of this Agreement shall be as set forth on the applicable Order Form (or similar ordering document).
10.2 Termination for Cause. Either party may terminate this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; provided, however, that Mersive may terminate this Agreement immediately upon written notice to Client in connection with a breach by Client of the license restrictions set forth in Section 2 (License and Client Responsibilities) of this Agreement.
10.3 Effect of Termination. Upon the termination of this Agreement, all licenses and access to the Products and Physical Media hereunder shall terminate. In no event shall any termination relieve Client of the obligation to pay any fees payable to Mersive for the period prior to the effective date of termination.
10.4 Survival. Sections 4 (Fees and Payment), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Client Materials Warranty), 7.4 (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Term and Termination), and 11 (General Provisions) shall survive any termination or expiration of this Agreement, along with any provisions of this Agreement concerning ownership rights and any other provisions of this Agreement which, by their nature, are intended to survive.
11. GENERAL PROVISIONS.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the second business day after sending by confirmed email or facsimile. All notices to Mersive hereunder shall be addressed to Mersive Technologies, Inc.; Attn: Chief Executive Officer; 1667 Cole Blvd. Building 19 Suite 225, Lakewood, Colorado, 80401. Mersive may change its representative hereunder upon providing notice to Client in accordance with this Section 11.3 (Notices).
11.4 No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.5 Export Controls. Regardless of whether Client is a U.S.-based entity, Client shall not export or re-export any of the Products or Physical Media (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order. Client agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of this Agreement.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.7 Assignment. Client shall not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Mersive (not to be unreasonably withheld). Any assignment in contravention of this Section 11.7 (Assignment) shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Colorado, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.9 Binding Arbitration. Without limiting Section 7 (Warranties, Exclusive Remedies and Disclaimers), Client and Mersive hereby agree to the following:
11.9.1 Purpose. Any and all Disputes (as defined below) involving Client and Mersive will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 11.9 (the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in this Agreement, this Section 11.9 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
11.9.2 Definitions. The term “Dispute” means any claim or controversy related to the Products or the Physical Media, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this Agreement or any prior agreement; (3) claims that arise after the expiration or termination of this Agreement; and (4) claims that are currently the subject of purported class action litigation in which Client is not a member of a certified class. As used in this Arbitration Provision, “Mersive” means Mersive and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “Client” means Client and its users or beneficiaries of Client’s access to the Products or the Physical Media.
11.9.3 Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). Client may deliver any required or desired notice to Mersive by mail addressed to Mersive Technologies, Inc.; Attn: Chief Executive Officer; 1667 Cole Blvd. Building 19 Suite 225, Lakewood, Colorado, 80401.
11.9.4 Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either Client or Mersive may bring an individual action in a small claims court in the area where Client accesses the Products or Physical Media if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
11.9.5 Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when Client notifies Mersive about its Dispute. Client can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of the Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless Client and Mersive agrees otherwise, any arbitration hearing will take place in Denver, Colorado. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
11.9.6 Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
11.9.7 Arbitration Fees and Costs. The payment of the JAMS fees and costs will be governed by the JAMS Rules. However, if the arbitrator finds that Client’s Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Client shall reimburse Mersive for all fees and costs that were Client’s obligation to pay under the JAMS Rules. Client may hire an attorney for representation in arbitration. Client is responsible for its attorneys’ fees and additional costs and may only recover its attorneys’ fees and costs in the arbitration to the extent that Client could in court if the arbitration is decided in its favor. Notwithstanding anything in this Arbitration Provision to the contrary, Mersive will pay all fees and costs that it is required by law to pay.
11.9.8 Severability and Waiver of Jury Trial. If any part of Section 11.9.6 of this Agreement is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable and the Dispute will be decided by a court. In this event, exclusive jurisdiction and venue for the adjudication of the Dispute shall be in the federal and state courts in and for Lakewood, Colorado, and Client hereby consents to the exercise of jurisdiction by such courts. WHETHER IN COURT OR IN ARBITRATION, CLIENT AND MERSIVE AGREES TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
11.9.9 Continuation. This Arbitration Provision will survive the termination or expiration of this Agreement
11.10 Force Majeure. Neither party shall be liable to the other for any loss or damage attributable to, and neither party shall be deemed to be in default hereunder as a result of, any failure or delay in performance caused by Force Majeure (as defined below). Both parties shall use all reasonable efforts to minimize the consequences of Force Majeure. As used in this Section 11.10 (Force Majeure), the term “Force Majeure” means strike, lockout, earthquake, hurricane, flood, fire, or other acts of God or nature, war, rebellion, civil disorders, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any necessary license), epidemics, pandemics, and other public health emergencies, criminal or malicious acts of third parties, acts of third parties as provided in Section 3.3 (Third Party Systems) above, unavailability of materials, carriers or communications facilities, Internet and network disruptions, and any other causes beyond the reasonable control of the party whose performance is affected. “Force Majeure” shall not include economic hardship, changes in market conditions, and/or insufficiency of funds.
11.11 Third Party Software Notifications and Licenses. The copyrights for certain software components of the Products or Physical Media may be owned or licensed by other third parties (“Third-Party Software”) and used and distributed under license. Such third-party licenses include the acknowledgements, notices, and licenses for the Third-Party Software (“Third-Party Notices”). The Third-Party Notices are included with the distribution of this Agreement on a display, online, or elsewhere. If You are unable to locate these Third-Party Notices, please write to us at the address below. The Third-Party Software is licensed according to the applicable Third-Party Software license notwithstanding anything to the contrary in this Agreement. If the Third-Party Software contains copyrighted software that is licensed under the GPL licenses, copies of those licenses are included in the Third-Party Notices. You may obtain the complete corresponding source code for such Third-Party Software from us for a period of three years after our last shipment of the Products or Physical Media by sending a request letter to: Mersive Technologies, Inc.; Attn: Chief Executive Officer; 1667 Cole Blvd. Building 19 Suite 225, Lakewood, Colorado, 80401. Please include the name and version number of the product in the request letter. This offer is valid to anyone in receipt of this information.
11.12 Entire Agreement; Conflicts. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes all other agreements between the parties relating to its subject matter. Any amendment must be in writing, signed by authorized signatories of both parties, and expressly state that it is amending the Agreement. If there is a conflict between this Agreement and an Exhibit, the terms of the Exhibit will prevail with respect to the conflicting terms only.
11.13 Construction. References to a section include all its subsections. The Section headings are for convenience only and will not affect how the Agreement is construed. Unless the Agreement refers specifically to “business days,” all references to “days” mean calendar days. The Agreement is to be interpreted as if jointly drafted by the parties, and no provision is to be construed against any party because such provision was drafted by that party.
11.14 No Draftsman’s Presumption. The parties acknowledge that each party had the opportunity to engage counsel in connection with drafting, reviewing and negotiating this Agreement and that, accordingly, no draftsman’s presumption or similar rule of construction shall be applied to construe this Agreement in favor of or against either party.
Exhibit A: Data Processing Addendum
This Data Processing Addendum (“DPA”) is subject to and made part of the End User License Agreement or other agreement for services, if applicable (together, the “Agreement”), between Mersive Technologies, Inc. (the “Processor”), and the other party to the Agreement and its affiliates (the “Controller”). This DPA applies to the provision of Products (as defined in the Agreement) and Physical Media (as defined in the Agreement) by the Processor to the Controller if the Processor processes (as defined below) personal data (as defined below). By accepting the Agreement or using the Products and Physical Media, the Controller agrees to this DPA. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. The Processor and the Controller, intending to be legally bound, agree as follows:
ARTICLE 1. PROCESSING OBJECTIVES
1.1 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as amended or supplemented from time to time. Solely for purposes of this DPA, “Personal data,” “data subject,” “personal data breach,” “supervisory authority” and “processing” (and variations thereof) shall have the meanings assigned to them in the GDPR.
1.2 “Standard Contractual Clauses” means: (i) where the GDPR applies, the standard contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner’s Office in accordance with the Data Protection Act 2018 on 2 February 2022 (“UK Addendum”); and (iii) where the Swiss GDPR applies, the EU SCCs, as approved and recognized by the Swiss Federal Data Protection and Information Commissioner.
1.3 “Swiss GDPR” means the EU e-Privacy Directive (Directive 2002/58/EC) and the Swiss Federal Data Protection Act.
1.4 “UK GDPR” means the United Kingdom’s Data Protection Act 2018 and the GDPR as saved into United Kingdom law by virtue of Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018.
1.5 “Applicable Privacy Laws” has the meaning set forth in Section 1.1 of the Agreement.
1.6 The Processor undertakes to process personal data on behalf of the Controller in accordance with the Agreement, this DPA and the documented instructions of the Controller, including Annex A attached hereto. The processing will be performed exclusively within the framework of the Agreement, and for all such purposes as may be agreed to subsequently, or as otherwise required by applicable law.
1.7 Except as required by applicable law, the Processor shall not use the personal data for any purpose other than as specified by the Controller. The Controller will inform the Processor of any such purposes which may be prohibited by Applicable Privacy Laws (as applicable to each law).
1.8 All personal data processed on behalf of the Controller shall remain the property of the Controller and/or the applicable data subjects.
ARTICLE 2. PROCESSOR’S OBLIGATIONS
2.1 The Processor represents and warrants that it shall comply with Applicable Privacy Laws (as defined in Section 1.1 of the Agreement) to the extent applicable to its activities as a processor.
2.2 Upon reasonable request, the Processor shall furnish the Controller with reasonable information regarding the measures it has adopted to comply with its obligations under this DPA.
2.3 The Processor shall provide reasonable assistance to the Controller in fulfilling the Controller’s obligations under Applicable Privacy Laws (as applicable to each law).
ARTICLE 3. TRANSMISSION OF PERSONAL DATA
3.1 The Processor may process the personal data in countries outside the European Union, the European Economic Area, Switzerland, and/or the United Kingdom, provided that:
3.1.1 Where adequate safeguards are required under the GDPR with respect to the transfer of personal data to the Processor in a third country, the most recent applicable Standard Contractual Clauses (module two – transfer controller to processor) will serve as the basis for such transfers, and the parties agree to enter into such Standard Contractual Clauses as if incorporated herein. In the event of any conflict between the terms of this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses will control.
3.1.2 Without limiting Section 3.1.1 above, in relation to transfers of Personal Data protected by the EU GDPR, Swiss GDPR, and/or UK GDPR, the EU SCCs shall apply, and the parties may mutually agree in writing on the application of certain optional clauses and certain other optional language in the EU SCCs.
3.1.3 Without limiting Sections 3.1.1. or 3.1.2. above, in relation to transfers of Personal Data protected by the UK GDPR, the EU SCCs as modified by the UK Addendum shall apply.
ARTICLE 4. ALLOCATION OF RESPONSIBILITY
4.1 The Processor shall only be responsible for processing the personal data under the Agreement, this DPA, and otherwise in accordance with the Controller’s documented instructions which are the responsibility of the Controller. Except as may be otherwise required by Applicable Privacy Laws (as applicable to each law), Controller agrees that its documented instructions are solely embodied by and set forth in the Agreement. To the extent Applicable Privacy Laws (as applicable to each law) permit the Controller to provide supplemental processing instructions to the Processor, the Processor reserves the right to make corresponding reasonable adjustments to its fee schedule and/or to charge reasonable administrative fees commensurate with the costs of any new required processing activities.
4.2 The Controller represents and warrants that (i) it shall comply with all Applicable Privacy Laws, (ii) it has a documented valid legal basis for the processing of all personal data processed by the Processor and will provide reasonable evidence of such valid legal basis to the Processor upon request, and (iii) the processing of all data in accordance with this DPA and the Agreement is not unlawful and does not violate any rights of a third party.
4.3 The Controller shall indemnify, defend, and hold harmless the Processor and its affiliates, and its and their respective managers, directors, officers, employees and representatives from and against all out-of-pocket costs, expenses, fines, fees (including reasonable attorneys’ fees) arising from all third-party claims, demands, or proceedings arising from or related to any actual or alleged processing of personal data by the Processor on behalf of the Controller without a valid legal basis.
ARTICLE 5. ENGAGING OF THIRD PARTIES OR SUBCONTRACTORS
5.1 The Processor may engage any of its affiliates as sub-processors, and the Processor and the Processor’s affiliates may engage third-party sub-processors, provided that the Processor or the Processor affiliate has entered into a written agreement with each such third-party sub-processor containing data protection obligations no less protective than those in this DPA with respect to the protection of the Controller’s personal data to the extent applicable to the nature of the portion of the services being provided in whole or in part by such third-party sub-processor.
5.2 A list of current sub-processors is available at https://www.mersive.com/sub-processors. If the Processor adds new sub-processors under the general authorization set forth in this clause then the Processor shall notify the Controller by updating https://www.mersive.com/sub-processors. The Controller’s continued use of the Processor’s services after such notice shall constitute the Controller’s consent to the new sub-processors, unless the Controller objects pursuant to Section 5.3 below.
5.3 The Controller may reasonably object to the Processor’s use of a new sub-processor (on grounds related solely to the protection of personal data) by notifying the Processor in writing within fifteen (15) days of the Processor’s notice pursuant to Section 5.2 above. If the Controller objects to any such new sub-processor(s), then the Processor may terminate the Agreement upon written notice to the Controller without further liability to either party.
5.4 The Processor shall be liable for the acts and omissions of its sub-processors to the same extent as if the Processor were performing the services of each sub-processor directly under the terms of this DPA.
ARTICLE 6. DUTY TO REPORT
6.1 The Processor shall notify the Controller without undue delay after becoming aware of a personal data breach, as defined by Applicable Privacy Laws (as applicable to each law). Such notice shall include, to the extent reasonably available to the Processor, the information required for the Controller to fulfill its obligations under Applicable Privacy Laws (as applicable to each law).
6.2 The Controller shall be responsible for complying with its obligations with respect to notice to supervisory authorities and communications to data subjects regarding a personal data breach under Applicable Privacy Laws (as applicable to each law). However, the Processor shall provide reasonable assistance in accordance with Applicable Privacy Laws (as applicable to each law) in connection with such obligations.
ARTICLE 7. SECURITY
7.1 The Processor shall implement and maintain such appropriate technical and organizational measures as are required by Applicable Privacy Laws (as applicable to each law) that are designed to ensure a level of security that is appropriate to the risk of harm to the data subjects that may result from the processing activities, including, as appropriate, pseudonymization and encryption of personal data, the ability to ensure the ongoing confidentiality, integrity, availability and resilience of systems, the ability to restore the availability of personal data in a timely manner in the event of a physical or technical incident, and a process for regularly evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
7.2 The Processor does not guarantee that such technical and organizational measures are effective under all circumstances. The Processor will ensure that such technical and organizational measures are appropriate to the risk, taking into account the state of the art, the sensitivity of the personal data, and the costs and operational impact related to such technical and organizational measures.
7.3 The Controller will only make the personal data available to the Processor if it is assured that the necessary technical and organizational measures have been taken.
7.4 The Processor will provide assistance to the Controller in fulfilling the Controller’s obligations with respect to the security of processing activities under Applicable Privacy Laws (as applicable to each law), by making information reasonable available to the Controller.
ARTICLE 8. HANDLING REQUESTS FROM INVOLVED PARTIES
8.1 If a data subject contacts the Processor with respect to the data subject rights under Applicable Privacy Laws (as applicable to each law), the Processor shall instruct the data subject to contact the Controller. The Controller shall be responsible for responding to and complying with any such data subject’s rights requests made under Applicable Privacy Laws (as applicable to each law). The Processor will make good-faith efforts to assist the Controller as reasonably necessary in order to permit the Controller to comply with such requests by the data subjects.
ARTICLE 9. NON-DISCLOSURE AND CONFIDENTIALITY
9.1 The Processor shall implement and maintain technical and organizational measures designed to ensure the confidentiality of the personal data to the extent required by the Agreement. All persons authorized by the Processor to access the personal data shall have committed themselves to confidentiality where applicable.
ARTICLE 10. AUDIT
10.1 Upon Controller’s request, Processor shall provide Controller with documentation demonstrating Processor’s compliance with the requirements of this DPA and Applicable Privacy Laws (as applicable to each law), which Controller agrees shall constitute confidential information of Processor, provided (i) the Processor is given a minimum of thirty (30) days’ advance written notice of such audit, (ii) such audit is not conducted more than once per year (unless requested by a supervisory authority pursuant Applicable Privacy Laws (as applicable to each law)); (iii) such audits are conducted only during the Processor’s normal business hours; and (iv) such audits are conducted in a manner that causes minimal disruption to the Processor’s operations and business. Additionally, a supervisory authority may conduct an audit to the extent required by Applicable Privacy Laws (as applicable to each law). The Controller agrees that Clause 8.9 of the Standard Contractual Clauses (if applicable) will be carried out in accordance with this Section 10.1.
ARTICLE 11. DURATION AND TERMINATION
11.1 The Processor shall, at the Controller’s choice, destroy or return to the Controller all personal data in the Processor’s possession after the Agreement terminates or expires for any reason, unless otherwise required by applicable law.
11.2 This DPA is entered into for the duration set out in the Agreement, and the duration of processing shall be the period during which services are provided under the Agreement. This DPA shall automatically terminate upon the later of (i) the termination or expiration of the Agreement, or (ii) the return or destruction of all personal data of the Controller in the custody or control of the Processor.
11.3 This DPA may only be amended by a written agreement signed by both parties.
11.4 The parties will reasonably cooperate with each other to amend this DPA as necessary to comply with applicable new privacy legislation or regulations.
ARTICLE 12. MISCELLANEOUS
12.1 This DPA shall be governed by the laws of the jurisdiction specified in the Agreement. Venue for any dispute arising between the parties in connection with this DPA shall be in the courts of the jurisdiction specified in the Agreement.
12.2 This DPA shall be construed to enable the parties to be compliant with the terms Applicable Privacy Laws (as applicable to each law).
12.3 In the case of any conflict between the Agreement and this DPA, this DPA shall control with respect to the matter in conflict.
Annex A: Data and data subjects
1. Nature and purpose of the processing
The Processor shall process the personal data described below on behalf of the Data Controller:
The Products and Physical Media, operated by Processor, provide the Data Controller with a software-based, cloud-enabled meeting collaboration platform optimized for digital content transmission by both local and remote teams. The Processor may also process personal data to engage in the other activities described in the Agreement and in the applicable Order Form (or other ordering document).
2. Categories of Data Subjects
- The end-users who are using the Products and Physical Media
3. Types of Personal Data
The Client Personal Data being processed concern some combination of the following categories of data:
- Name (first and last)
- Business email address
- Business address, city, state/province, postal code, and country
- IP address
- Cookie data
- Unique identifiers