EULA - Matillion ETL for Redshift
MATILLION ETL FOR REDSHIFT ON AWS- EULA
PLEASE READ CAREFULLY BEFORE USING THE SOFTWARE
This end-user license agreement (EULA) is a legal agreement between you or the entity you represent (You) and MATILLION LIMITED (Company Number: 7474948) which has its registered office at Station House, Stamford New Rd, Altrincham WA14 1EP United Kingdom (Licensor, us or we) for:
• MATILLION ETL FOR REDSHIFT subscription software (Software) operated through Amazon Machine Images (AMI) via AWS Marketplace provided by Amazon Web Services, Inc. (AWS); and
• online or electronic documents provided by us in connection with the Software (Documents).
We license use of the Software, Ancillary Services (as defined in clause 1.1) and Documents to you on the basis of this EULA and subject to any rules or policies applied from time to time by AWS (AWS Rules) in relation to payment for and use of the Software, Amazon Redshift and related matters (including your "AWS Customer Agreement" and AWS’s "Acceptable Use Policy"). We do not sell the Software or Documents to you. We (or our licensors, as appropriate) remain the owners of the Software and Documents at all times.
AWS, AWS Marketplace, the AWS Marketplace logos and Amazon Redshift are trademarks of Amazon.com, Inc. or its affiliates.
THE SOFTWARE REQUIRES:
• A VALID CONTINUING AWS ACCOUNT AND AMAZON REDSHIFT SUBSCRIPTIONS FOR AMAZON REDSHIFT CLUSTERS WITH ADEQUATE SIZE AND CONFIGURATIONS TO SUPPORT YOUR USE OF THE SOFTWARE;
• AN INSTANCE (AS DEFINED BELOW) UPON WHICH THE SOFTWARE WILL BE INSTALLED;
• A COMPATIBLE BROWSER ENABLED DEVICE WHICH HAS IP CONNECTIVITY TO THE INSTANCE RUNNING THE SOFTWARE AND AMAZON REDSHIFT (DETAILS OF THOSE BROWSERS WHICH ARE COMPATIBLE WITH YOUR VERSION OF THE SOFTWARE ARE SET OUT AT:
THE SOFTWARE SHALL ONLY BE ACCESSIBLE VIA AN AMI ON YOUR INSTANCE RUNNING THE SOFTWARE AND MAY ONLY BE USED IN CONJUNCTION WITH AMAZON REDSHIFT.
• THIS EULA TAKES EFFECT AND YOU AGREE TO THE TERMS OF THIS EULA, WHICH WILL BIND YOU WHEN YOU CLICK ON THE "ACCEPT TERMS" OR "ACCEPT TERMS & LAUNCH WITH 1-CLICK" BUTTON OR ANY SIMILAR ACCEPTANCE BUTTON. YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND IF YOU ARE ENTERING INTO THIS EULA FOR AN ENTITY, SUCH AS A COMPANY YOU WORK FOR, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. THE TERMS OF THE EULA INCLUDE, IN PARTICULAR, THE LIMITATIONS ON LIABILITY IN CLAUSES 1.7 AND 9.
CONSENT TO LIST AS CUSTOMER. BY USING THE SOFTWARE, YOU HEREBY GRANT, AND REPRESENT AND WARRANT THAT YOU HAVE ALL RIGHTS NECESSARY TO GRANT US THE RIGHT TO INCLUDE YOU AND/OR YOUR SUBSCRIBING ORGANISATION AS A CUSTOMER OR CLIENT OF LICENSOR.
• IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, WE WILL NOT LICENSE OR PERMIT ACCESS TO THE SOFTWARE, ANCILLARY SERVICES OR DOCUMENTS TO YOU AND YOU MUST STOP THE ORDER PROCESS NOW.
• YOU ARE RESPONSIBLE FOR ALL ACTIVITY AND USE UNDERTAKEN IN CONNECTION WITH THE SOFTWARE, IRRESPECTIVE OF WHETHER THE ACTIVITY OR USE IS UNDERTAKEN BY YOU, YOUR EMPLOYEES OR THIRD PARTIES (INCLUDING YOUR AGENTS OR CONTRACTORS). WE ARE NOT RESPONSIBLE FOR ANY UNAUTHORISED ACCESS TO THE SOFTWARE OR YOUR AWS ACCOUNT.
• YOU CONFIRM THAT YOU ARE ACTING IN THE COURSE OF BUSINESS AND ARE NOT A CONSUMER.
You should print a copy of this EULA for future reference.
The available Subscriptions are defined by Instance/Image Size and Payment Scheme. Details of all available Subscriptions are set out at: : https://www.matillion.com/pricing/#matillion-etl
For the purpose of this EULA the terms “controller”, “processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organisational measures” have the meanings given to them in the Data Protection Legislation. The following definitions also apply:
Annual Subscription where a Subscription is charged on an annual basis;
Customer Personal Data means the personal data comprised in any information which you may supply to us or to which you may grant us access in connection with the EULA, as set out in paragraph 2 of Schedule 1 to this EULA;
Data Protection Legislation means the Data Protection Act 2018 and all applicable data protection and privacy legislation in force from time to time in the UK and (for as long as and to the extent that the law of the European Union has legal effect in the UK) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR) as amended and implemented by national laws, regulations and secondary legislation from time to time in the UK;
Environment means an environment configuration using the Software for Amazon Redshift, which is used to define a connection to a particular Amazon Redshift schema within a Project (an Environment specifies the Amazon Redshift cluster name, schema name, database name, end-point and access credentials to connect to the same);
Free Trial means any license of the Software we grant to you in respect of which no fees are payable;
GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation);
Hourly Subscription where a Subscription is charged on an hourly basis;
Instance means a virtual machine in Amazon's Elastic Compute Cloud (EC2) (or its successor or replacement) for running applications on the AWS infrastructure;
Maximum Concurrent User Sessions means the maximum number of User Sessions that may be active at any given time;
Maximum Environments means the maximum number of Environments that may be saved at any given time;
Payment Scheme means either an Annual Subscription or an Hourly Subscription as the context requires;
Project means a project created by a User, being a collection of one or more jobs and one or more Environments using the Software;
Standard Contractual Clauses means:
(a) the standard contractual clauses set out in Schedule 2; or
(b) upon notice from us to you, such other standard clauses as may be adopted by the European Commission under Article 46 of the GDPR for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection;
Subscription means your subscription for the Software;
Subscription Fees the fees specified by us on our listing on AWS’s Marketplace as updated by us from time to time based on the Instance Size and Payment Scheme chosen by you from time to time;
User means you, your employees and other third parties (including agents and independent contractors) who use the Software, the Ancillary Services and/or the Documents, which are the subject of this EULA; and
User Session means the use of the Software by a User on an individual browser tab.
Each Instance/Image Size Subscription limits the Maximum Concurrent User Sessions and Maximum Environments applicable in relation to the Software. The Instance/Image Size Subscription may be varied by you at any time.
A Payment Scheme may be varied from an Hourly Subscription to an Annual Subscription (if and where available) at any time.
You will be charged monthly in arrears for the number of hours (rounded up to the next whole hour for each partial hour of use) during which the Software is available for use (switched "on" via the AWS Management Console (or its successor/replacement)). The charges applicable are not dependent on the actual use of the Software during such time; the charge is according to the Instance/Image Size that you have subscribed to.
A Free Trial, limited to 5 days, may in our discretion be made available from time to time to new licensees. Free Trials may only be used for testing purposes.
Notwithstanding a Free Trial being made available by us, you may still be charged by AWS (or its affiliates) for the Instance upon which the Software is installed.
Annual Subscription (where available)
You will be charged in advance for each year's Subscription (Annual Subscription). The charges applicable are not dependent on the actual use of the Software; the charge is according to the Instance/Image Size that you have subscribed for. Annual Subscriptions are non-cancellable by you and (save where expressly stated otherwise in this EULA) non-refundable.
A Free Trial is not available for or in conjunction with an Annual Subscription. However, you may purchase an Annual Subscription following the end of a Free Trial.
1.1 The terms of this EULA apply to the Software and to any of the services accessible through or provided in connection with the Software (Ancillary Services). This EULA shall apply to any updates or supplements to the Software or the Ancillary Services, unless they come with separate terms, in which case those terms shall apply to the Ancillary Services. The following open-source and third-party licenses, which relate to open-source and/or third-party software comprised within the Software, may override some of the terms of this EULA: https://documentation.matillion.com/docs/2794594
You agree to comply (and procure compliance by all Users) with the terms of such licenses and acknowledge that your use of the Software or the Ancillary Services is conditional upon your compliance with such licenses.
1.2 We may change these terms at any time (in accordance with the rules and policies applied from time to time by AWS). Your continued use of the Software and/or the Ancillary Services will be subject to any and conditional on your acceptance of such revised terms.
1.3 From time to time updates to and new versions and/or releases of the Software and/or the Ancillary Services may be issued (including through the AWS Marketplace). You acknowledge that you may be required to accept the then current license terms before accepting any update or new versions and/or releases and that bugs and errors in the Software and/or the Ancillary Services may be fixed by way of update or new versions and/or releases. You agree that if you install RPM updates on your Instance running the Software, then any update or new versions and/or releases to the Software shall be on the basis that you accept and agree to the then current license terms (which will be available at https://documentation.matillion.com/docs/2845300)
1.4 Any person using the Software and/or the Ancillary Services will be assumed to be authorised by you and to have obtained permission from and be acting with your authority. You agree to be responsible for ensuring that the Users comply with this EULA, for their use of the Software, the Ancillary Services and the Documents and for any User's breach of this EULA. You and they may be charged by your and their service providers for access to the Software and/or the Ancillary Services and/or by AWS in relation to use of Amazon Redshift or other AWS services.
1.5 You agree to comply with and be bound by the AWS Rules. You acknowledge that we and AWS are separate legal entities and no legal relationship of partnership, agency or other association or affiliation exists.
1.6 You acknowledge that:
(a) you will need an Instance (from AWS) upon which the Software will be installed (and in respect of which you will comply with Amazon's terms and conditions for the same);
(b) it is your responsibility to ensure that you have an active account with AWS and a subscription for Amazon Redshift and that the Amazon Redshift clusters for which you subscribe through AWS have adequate and appropriate size, processing capacity and configuration for you use of the Software;
(c) your use of the Software may impact on the size and processing capabilities of such Amazon Redshift clusters while the Software is in use;
(d) your use of the Software is dependent on your IP connectivity to AWS, Amazon Redshift and the Instance upon which the Software is installed (no guarantee is therefore given that you or any User will be able to access the Software at any given time and we shall have no liability if it is not accessible or operative at any given time); and
(e) it is your responsibility to ensure that your set-up of Amazon Redshift and the IP connectivity to the Software (including security set-up) is adequate for your use of the Software;
(f) your use of the Software is dependent on having a compatible browser (details of compatible browsers, by reference to the version of the Software, are set out at https://documentation.matillion.com/docs/2017557 and that upgrading your browser may adversely impact on your ability to use the Software.
1.7 You acknowledge that the Software and/or the Ancillary Services may enable or assist you to access and receive the services of, the website content of, to correspond with, and to purchase products and services from, third parties (including AWS) and that you do so solely at your own risk. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the products and services of, content or use of, the websites of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed with any third-party is between you and the relevant third party, and not us. We recommend that you refer to the third party's terms and conditions. We do not endorse or approve any third party products or services nor the content of any of the third-party website made available or accessed via the Software and/or the Ancillary Services.
1.8 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words. Clause headings shall not affect the interpretation of this EULA. References to clauses are to the clauses of this EULA.
1.9 An entity or person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders
1.10 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this EULA. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this EULA under that statute or statutory provision.
1.11 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to that term in the other jurisdiction.
2 GRANT AND SCOPE OF LICENSE
2.1 We grant you a non-transferable, non-exclusive license to use the Software, the Ancillary Services and the Documents, subject to the terms of this EULA and the AWS Rules, which are incorporated into this EULA by reference. We reserve all other rights. You shall ensure that Users shall be limited to only you and those of your employees, agents and independent contractors who you permit to use the Software. You acknowledge and agree that you are responsible for all activity and use undertaken by all Users in connection with the Software, the Ancillary Services and/or the Documents.
2.2 Subject to the terms of the EULA, you and other Users may:
(a) view, use and display the Software only in conjunction with your Amazon Redshift subscription and only for your own internal data processing operations and not for or on behalf of any other person (Permitted Purpose);
(b) access the Ancillary Services for the Permitted Purpose only; and
(c) use the Documents for the Permitted Purpose only.
2.3 You undertake that the number of active User Sessions and saved Environments at any given time shall not in aggregate exceed the Maximum Concurrent User Sessions and/or Maximum Environments (respectively) permitted according to your Subscription from time to time.
3 LICENSE RESTRICTIONS
3.1 Except as expressly set out in this EULA, you agree:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties (and only to that extent);
(i) not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documents (as applicable) in any form or media or by any means; or
(ii) not to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) not to access all or any part of the Software, the Ancillary Services and Documents in order to build a product or service which competes with the Software and/or Ancillary Services and/or the Documents;
(c) not to use the Software, the Ancillary Services and/or Documents to provide services to third parties or for any purpose other than the Permitted Purpose;
(d) not to license, sell, rent, lease, transfer, assign, sublicense, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, the Ancillary Services and/or Documents available to any third party;
(e) not to attempt to obtain, or assist third parties in obtaining, access to the Software, the Ancillary Services and/or Documents;
(f) to ensure that all Users comply with the terms of this EULA;
(g) to comply with all laws and regulations with respect to your and all other User’s activities under this EULA; or
(h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Software or any Ancillary Service,
together License Restrictions.
3.2 You agree to prevent any unauthorised access to, or use of, the Software, the Ancillary Services and/or the Documents and, in the event of any such unauthorised access or use, promptly notify us.
4 ACCEPTABLE USE RESTRICTIONS
You shall not:
4.1 access, store, distribute or transmit during the course of your use of the Software or the Ancillary Services, any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; or
4.2 access, store, distribute or transmit during the course of your use of the Software or the Ancillary Services, any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
4.3 infringe our Intellectual Property Rights (as defined in clause 6.4) or those of any third party in relation to your use of the Software, the Ancillary Services or Documents;
4.4 use the Software, the Ancillary Services and/or the Documents in a way that could damage, disable, overburden, impair or compromise our security or interfere with other users; and
4.5 attempt to decipher any transmissions to or from any Instances running any Software,
together Acceptable Use Restrictions.
5 PAYMENT TERMS
5.1 You agree to pay at the times set out above in relation to the relevant Payment Scheme, the Subscription Fees due for the Instance/Image Size and Payment Scheme you have subscribed to. You may vary the Instance/Image Size and Payment Scheme in accordance with the Instance/Image Size section and the Payment Scheme section of this EULA respectively.
5.2 If due to a pricing error the fees specified as set out in clause 5.1 are obviously less than the correct Subscription Fees and this could reasonably have been recognised by you as a mispricing the parties shall as soon as reasonably practicable and in any event within 5 working days following the discovery of the pricing error, discuss the pricing error and use their good faith endeavours to agree the correct Subscription Fees. If the parties cannot agree the correct Subscription Fee within 10 working days following the date on which we informed you of the pricing error then we shall have the right to immediately terminate the EULA without liability to you. If you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.
5.3 You agree to make all payments through AWS and you will ensure at all times that your credit card and/or other account details provided to AWS are accurate and up to date. You authorise AWS to bill the Subscription Fees on such credit card on our behalf. You also acknowledge and agree to pay all fees charged by AWS (or its affiliates) relating to the Instance upon which the Software is installed (including any infrastructure charges). Details of their charges are at http://aws.amazon.com/ec2/pricing/.
5.4 All Subscription Fees and other amounts payable in connection with this EULA are:
(a) non-cancellable and (save where expressly stated otherwise in this EULA) non-refundable;
(b) exclusive of applicable taxes and duties, including VAT and any applicable sales tax (including state sales and use tax), for which you may be additionally liable. If applicable, you agree to pay on demand the amount of any such tax or duty for which you are liable in relation to the Subscription Fees and any other amounts due to us or AWS. You will provide us with any information we reasonably request to determine whether we are obliged to collect VAT (or any other sales tax) from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction or withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
5.5 We shall be entitled to change the Subscription Fees in relation to your Instance/Image Size and/or Payment Scheme at any time. Changes shall be made in accordance with the rules and policies applied from time to time by AWS. In the case of an Annual Subscription, such change shall take effect no earlier than at the end of that Annual Subscription period.
5.6 All amounts payable under this EULA shall be made by you without set-off, counterclaim, deduction or withholding.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 You acknowledge that all Intellectual Property Rights (as defined below) in the Software, the Ancillary Services and the Documents anywhere in the world belong to us or our licensors, that Intellectual Property Rights in the Software, the Ancillary Services and the Documents are licensed (not sold) to you, and that you have no Intellectual Property Rights in, or to, the Software, the Ancillary Services and the Documents other than the right to use each of them in accordance with the terms of this EULA.
6.2 You acknowledge that you have no right to:
(a) have access to the Software in source-code form;
(b) download the Software or a copy of it other than strictly and solely for the Permitted Purpose; or
(c) install the Software on any computer or other device other than as an AMI and solely and strictly for the Permitted Purpose.
6.3 In the event of a claim that the Software, the Ancillary Services or the Documents infringes the Intellectual Property Rights of a third party, we may procure the right for you to continue using the Software, or replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably practicable, terminate this EULA by notice to AWS. If you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.
6.4 In this EULA Intellectual Property Rights shall mean all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, website rights, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
6.5 You shall defend, indemnify and hold harmless us against all claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with use of the Software, the Ancillary Services and the Documents by you or any other User in breach of this EULA.
6.6 Provided that you comply with clause 6.7, we shall indemnify you and, at our option and as set out in 6.7(d), defend you against:
(a) any direct damages finally awarded to a third party by a court of competent jurisdiction (after all appeals have been exhausted) or agreed by us in settlement of any third party claim made against you arising out of actual or alleged infringement of a third party's Intellectual Property Rights arising out of your use of the Software in accordance with this EULA (Claim); and
(b) all reasonably and properly incurred legal and other professional costs and expenses suffered or incurred by you directly in connection with defending or assisting us with defence of such Claim.
6.7 If any third party makes a Claim, or notifies you of an intention to make a Claim, you shall:
(a) as soon as reasonably practicable, give written notice of the Claim to us, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without our prior written consent;
(c) give such assistance and cooperation to us and our professional advisers that we or they may reasonably require, including by giving such access to documents, personnel, and information that we may reasonably require and promptly providing us with any correspondence or documents received by you in connection with the Claim;
(d) take such action as we may reasonably request to avoid, dispute, compromise or defend the Claim and, upon our request, give us the sole conduct of the Claim, including sole authority to avoid, dispute, compromise or defend the Claim; and
(e) subject to clauses 6.7(a) to 6.7(d), take all reasonable steps to mitigate any loss the you may suffer or incur in connection with any event or circumstance which may give rise to a claim under clause 6.6.
7 CUSTOMER DATA
7.1 You confirm that you own all right, title and interest in and to all of the data in respect of which the Software is to be used (Customer Data) or you have a license for or right to use the same, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 You acknowledge that all storage and processing of Customer Data is carried out by you on AWS within Amazon Redshift. You agree to make a copy and image of the Customer Data prior to using the Software. You acknowledge and accept that we shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data.
7.3 You acknowledge and agree that we may process Customer Personal Data when providing Support, where you facilitate access to such Customer Personal Data. You shall only facilitate access to such Customer Personal Data if, and to the extent, strictly necessary for the provision of such Support and to the extent that it is lawful to do so.
7.4 If we process any Customer Personal Data on your behalf when providing Support (as defined below) then, if and to the extent that the Data Protection Legislation applies in respect of such processing, the parties agree that Schedule 1 shall apply to this EULA.
7.5 All transfers of Customer Personal Data made under or in connection with this EULA from the European Union, European Economic Area, and Switzerland to us or any of our employees to the extent the same are located in a jurisdiction in respect of which the European Commission has not made an adequacy decision under Article 45 of the GDPR (which may include the United Kingdom once it is no longer directly subject to European Union law on the protection of personal data), and in respect of which you are the controller and we are the processor, shall be governed by the Standard Contractual Clauses. In such circumstances you and we shall comply with the Standard Contractual Clauses.
7.6 In the event of any conflict between the Standard Contractual Clauses and any other provision of this EULA, the Standard Contractual Clauses shall prevail.
7.7 Where you have activated the collection of telemetry data within your user settings, we will collect certain anonymous data fields to help us better understand our customers use of the Software including to assess the efficiency of components and features within the Software. Further details of the data fields we collect can be found here https://documentation.matillion.com/docs/2971426. You can activate or deactivate this functionality at any time by adjusting your user settings. We will only be able to collect telemetry data when this functionality has been activated by you.
8 LIMITED WARRANTY AND SUPPORT
8.1 We warrant that:
(a) the Software will, when properly used, perform substantially in accordance with the functions described in the Documents; and
(b) that the Documents correctly describe the operation of the Software in all material respects,
(c) for a period of 30 days from the date on which you agree to this EULA (Warranty Period).
8.2 If within the Warranty Period you notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documents, we may replace or modify the Software so that it complies with the warranty at clause 8.1(a) or, if such remedy is not reasonably practicable or we fail to do so within 30 days from the date of you notifying us of the defect or fault, you may terminate this EULA immediately by giving us written notice. If you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.
8.3 The warranty does not apply:
(a) if the defect or fault in the Software or any Ancillary Service results from its use in breach of this EULA;
(b) if the use of the Software or the Ancillary Services is in breach any of the License Restrictions or the Acceptable Use Restrictions; and
(c) if there is an update (whether a new release or new version) to the Software or the Ancillary Services which corrects the failure to perform.
8.4 We may from time to time (but are under no obligation to) provide support services in connection with the Software (Support) as detailed from time to time on our page on the AWS Marketplace and available through https://support.matillion.com/s/ and/or such replacement site as we may specify (Support Site). Support shall constitute an Ancillary Service for the purposes of this EULA.
8.5 All Support and your use of the Support Site shall be subject to this EULA (including the Permitted Purpose, limitations of liability, License Restrictions and Acceptable Use Restrictions set out herein) except as expressly provided otherwise on the Support Site from time to time, and shall be subject to such additional policies, terms and conditions as may be set out on the Support Site from time to time.
9 LIMITATION OF LIABILITY
9.1 You acknowledge that the Software and the Ancillary Services have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software and the Ancillary Services meet your requirements.
9.2 This clause 9 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
(a) arising under or in connection with this EULA;
(b) in respect of any use of the Software, the Ancillary Services and Documents or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this EULA.
9.3 Except as expressly and specifically provided in this EULA:
(a) you acknowledge that the Software is a tool and that you are responsible for the use of such tool and accordingly you assume sole responsibility for results obtained from the use of the Software, the Ancillary Services and the Documents, and for conclusions drawn from such use. Accordingly, you agree to verify and test the results to ensure that they meet your requirements and that they are accurate based on the Customer Data and the use of the Software;
(b) you acknowledge and agree that transmissions are never completely private or secure. You understand that any instructions, message or information you send when using the Software or any Ancillary Service may be read or intercepted by others;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this EULA;
(d) the Software, the Ancillary Services and the Documents are provided on an "as is" and "as available" basis and you acknowledge that the Software is not error, fault or bug free and that we shall have no liability to you for any such occurrences.
9.4 Nothing in this EULA excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation, or
(c) for any other liability which may not be excluded by law.
9.5 Subject always to clause 9.4:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct or indirect loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising;
(b) our total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall in respect of any consecutive 12 month period (commencing with the date this EULA is accepted) during the term of this EULA be limited to the total Subscription Fees paid by you during the preceding 12 month period (or in respect of the first 12 month period, during that period); and
(c) our total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in respect of any Free Trial shall be nil; and
(d) we shall have no liability to you unless you serve notice in writing to us of your claim within 3 months of the date you become aware or ought to have become aware of the claim or the circumstances giving rise to the claim.
9.6 Subject always to clause 9.4 but without prejudice to the other terms of this clause 9, we shall have no liability for any damage or loss which is caused by use of the Software, the Ancillary Services and/or the Documents contrary to our instructions (including any Support) or in breach of this EULA, or modification or alteration of the same by any party other than us, our duly authorised contractors or agents or which arise as a result of the Software but would not have arisen had you accepted and installed an update or upgrade (whether a new release and/or new version) to the Software (or any part thereof) which had been made available to you. We:
(a) do not warrant that your use of the Software or the Ancillary Services will be uninterrupted or error-free; or that the Software, the Ancillary Services, Documents and/or the information obtained through them will meet your requirements; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from any act or omission of AWS, from the operation or non-operation or any other third-party service or software, or from the transfer of data over communications networks and facilities (including the internet) and you acknowledge that the Software, the Ancillary Services and Documents may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.7 This EULA shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this EULA.
9.8 We warrant that we have and will maintain all necessary licenses, consents, and permissions necessary for the performance of our obligations under this EULA.
10.1 This EULA shall commence on your agreeing to its terms and shall continue until it is terminated or it expires in accordance with its terms.
10.2 Where an Annual Subscription expires or is not renewed, the Payment Scheme shall automatically vary to an Hourly Subscription.
10.3 We may terminate or suspend this EULA and/or the Software and/or the Ancillary Services immediately by notice to AWS:
(a) if you fail to make payment when due;
(b) if you commit a material or persistent breach of this EULA;
(c) if you breach any of the License Restrictions or the Acceptable Use Restrictions;
(d) if you fail to have a valid, subsisting AWS or Amazon Redshift account or subscription.
10.4 Without prejudice to any other rights or remedies expressly set out in this EULA, either party may terminate this EULA for any reason by giving notice (you will need to give written notice to us; we may give notice to AWS) according to the relevant Payment Scheme as follows:
(a) Annual Subscription – you must give at least 30 days prior notice at any time (provided always that the Subscription Fees shall be non-refundable); we must give at least 30 days notice but the Annual Subscription shall not terminate until the end of its term;
(b) Hourly Subscription – giving at least 30 days prior notice at any time.
10.5 On termination or expiry for any reason:
(a) all rights granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorised by this EULA, including your use of the Software, the Ancillary Services and the Documents;
(c) you must immediately destroy all copies of the Documents then in your possession, custody or control; and
(d) we may require Amazon to disable your access to the Software, the Ancillary Services and the Documents.
11 COMMUNICATION BETWEEN US
11.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you must send this to us by email at firstname.lastname@example.org. All communications and notices must be in the English language.
11.2 If we have to contact you or give you notice in writing (which includes by email), we will use the contact details we have for you. If we have no contact details for you, we will be deemed to have contacted you or given you notice in writing (as appropriate) if we email AWS.
12 EVENTS OUTSIDE OUR CONTROL
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that are caused by any act or event beyond our reasonable control, including failure of public or private networks and connectivity (Event Outside Our Control).
12.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
(a) our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations may be performed despite the Event Outside Our Control.
13 OTHER IMPORTANT TERMS
13.1 We may transfer and assign our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
13.2 You may only transfer or assign your rights or obligations under this EULA to another person if we agree in writing.
13.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, that will not mean that we will automatically waive any later default by you.
13.4 Each of the provisions of this EULA operates separately. If any court or competent authority decides that any of them are invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect.
13.5 If any invalid, illegal or unenforceable provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect as far as possible to the commercial intention of the parties.
13.6 Please note that, save as expressly set out in the Standard Contractual Clauses (if applicable) disputes or claims arising in connection with this EULA, its subject matter and its formation (including non-contractual disputes or claims) are governed by English law.
13.7 You irrevocably agree for our exclusive benefit that the courts of England shall have exclusive jurisdiction (save as expressly set out in clause 13.8 and the Standard Contractual Clauses (if applicable)) to hear and determine any suit, action or proceeding and to settle any dispute which may arise out of or in connection with this EULA, its subject matter or formation (including non-contractual disputes or claims) and for such purposes you irrevocably submit to the jurisdiction of such courts.
13.8 Nothing in clause 13.7 shall limit our right to take proceedings against you in any court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdictions preclude the talking of proceedings in any such other jurisdiction whether concurrently or not (unless precluded by applicable law).
13.9 This EULA and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
13.10 Each of the parties acknowledges and agrees that in entering into this EULA it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this EULA or not) relating to the subject matter of this EULA, other than as expressly set out in this EULA.
13.11 Nothing in this EULA is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13.12 This EULA does not confer any rights on any person or party (other than the parties to this EULA and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Schedule 1 Data Processing Terms
1 Data Processing Terms
1.1 The parties to this EULA hereby agree that they shall comply with their respective obligations under the Data Protection Legislation, to the extent that the Data Protection Legislation is applicable to any processing of Customer Personal Data in connection with this EULA.
1.2 We acknowledge that, for the purposes of Data Protection Legislation, if we process any Customer Personal Data when performing our obligations under this EULA, you are the controller and you acknowledge that we are the processor of Customer Personal Data. A general description of the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data is set out in paragraph 2 of this Schedule.
1.3 Without prejudice to the generality of paragraph 1.1, you shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to us for the duration and purposes of this EULA so that we may lawfully use, process and transfer the Customer Personal Data in accordance with this EULA on your behalf.
1.4 We shall, in relation to any Customer Personal Data processed in connection with the provision of Support and the performance of our obligations under the EULA:
1.4.1 only process the Customer Personal Data for the purpose set out in paragraph 2 of this Schedule and not for any other purpose unless we are acting on your documented written instructions or where otherwise required to do so by the laws of any member of the European Union or by the laws of the European Union applicable to us (Applicable Law). Where we are relying on Applicable Law as the basis for processing Customer Personal Data, we shall notify you of this before performing the processing required by the Applicable Law (unless prohibited by such Applicable Law);
1.4.2 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
1.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the Customer Personal Data confidential;
1.4.4 ensure we take such measures required pursuant to Article 32 of the GDPR;
1.4.5 at your expense, assist you in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
1.4.6 notify you without undue delay on becoming aware of a personal data breach in relation to the Customer Personal Data;
1.4.7 at your written direction, delete or return the Customer Personal Data and copies thereof to you on termination of this EULA unless required by Applicable Law to store the Customer Personal Data; and
1.4.8 maintain complete and accurate records and information to demonstrate our compliance with this Schedule and allow for audits, including inspections, by you or your designated auditor and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
1.5 You warrant and undertake that any processing of Customer Personal Data which is or may occur in accordance with this EULA has a lawful basis and that any such Personal Data may properly be processed in accordance with the terms of this EULA.
1.6 You agree that we may appoint such sub-processors to process the Customer Personal Data as we deem appropriate for the proper performance of the EULA, provided that we shall impose contractual terms on the sub-processor which are no less onerous than those set out in this Schedule. We shall inform you of any intended changes concerning the addition or replacement of third-party processors, giving you the opportunity to object to such changes.
1.7 We confirm that we have entered or (as the case may be) will enter with any third-party processor(s) into a written agreement substantially on the relevant third-party processor’s standard terms of business or incorporating terms which are substantially similar to those set out in this Schedule 1.
1.8 Without prejudice to the generality of any other provisions of the EULA, we may revise this Schedule by replacing it with any applicable controller to processor standard clauses or similar terms from time to time (which shall apply when replaced by attachment to this EULA).
2 Scope nature and purpose of processing
Subject matter and duration of the processing
The Customer Personal Data which is provided by you to us or to which you grant us access in connection with the performance of the Support in relation to this EULA.
We shall only process the Customer Personal Data for as long as is required to comply with the provision of Support under the EULA or where we are required to store the Customer Personal Data to comply with Applicable Laws or for regulatory purposes.
Nature and purpose of the processing
Processing of the Customer Personal Data in order to perform Support in relation to this EULA.
Type of personal data
The Customer Personal Data may include names, business addresses, mobile phone numbers, email addresses, IT system or account log in details, IP addresses, and such other personal identifiers and data relating to data subjects whose details may be provided (or made available) to us by you in connection with the performance of Support under the EULA.
Categories of data subjects
Individuals whose details may be provided (or made available) by you in connection with the performance of Support under the EULA.
Schedule 2 Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, you (as the data exporter) and we (as the data importer) HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex A.
For the purposes of the Clauses:
(a) personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);
(b) the data exporter means the controller who transfers the personal data;
(c) the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;
(e) the applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2 Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Annex A which forms an integral part of the Clauses.
3 Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this clause 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 6.1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor this clause 3.3, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
4 Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Annex B to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Annex B and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
(j) that it will ensure compliance with clause 4(a) to clause 4(i).
5 Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Annex B before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Annex B which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with clause 11; and
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with clause 6.1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in clauses 6.1 and 6.2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
7 Mediation and jurisdiction
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8 Cooperation with supervisory authorities
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).
9 Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in clause 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in clause 11.1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
12 Obligation after the termination of personal data processing services
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in clause 12.1.
This Annex forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Annex A.
You are the data exporter, a licensee of the Software
We are the data importer, a licensor of the Software and provider of associated services
The personal data transferred concern individuals whose details may be provided (or made available) by you in connection with the performance of Support by us under the EULA
Categories of data
The personal data transferred include databases, documents and other data in an electronic form in relation to which the Software may be used
Special categories of data (if appropriate)
The personal data transferred concern such special categories of data which you may inform us as being comprised within any Customer Personal Data transferred to us
The personal data transferred will be subject to the processing activities of the provision of Support in relation to the EULA
This Annex B forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/legislation attached):
The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect Customer Data, as set out at paragraph 1.4.2 of Schedule 1 to this EULA.