Saphety Software and Services Agreement

Sovos Saphety Software and Services Agreement

Last Modified: July 01, 2022

This Software and Services Agreement (the “Agreement”) establishes the general terms and conditions that govern your (“Customer”) access to, and use of certain Software and Services of Saphety Level – Trusted Services S.A. (“Sovos”), NIPC 507957547, with address at Rua Viriato, 13, 3.º Piso, 1050-233, Lisbon, Portugal as identified on the applicable Order Form or Proposal.

Please read the Agreement carefully before commencing use of the Sovos Software and Services. By clicking to accept or agree to the Agreement when this option is made available to you, or by signing the Order Form or Proposal you accept and agree to be bound and abide by this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and your affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and you may not use the Software and Services.

Sovos may, from time to time and in its sole discretion, make changes to this document or the terms and conditions set forth herein, provided however, in no event shall Sovos make any changes that will degrade the products or services applicable to this Agreement without prior written notice to Customer. When Sovos makes changes hereto which do not degrade the products or services applicable to this Agreement, Sovos will provide notice as appropriate under the circumstances, e.g., by displaying a notice within the applicable Sovos products or services, by updating these terms or by sending Customer an email. The latest version date of this Agreement will apply. Your continued use of the Software and Services, following the posting of changes will mean that you accept and agree to the terms.  If you object to posted changes, please contact Sovos in writing before continuing use of the Software and Services.

In consideration of the mutual promises set forth below, the parties hereby agree as follows:

1. Definitions

Access means, for the Cloud Solution, remotely connecting to Software via the URL provided by Sovos or via installed media delivered to you via electronic means or via courier.

Affiliate means an entity controlling, controlled by or under common control with a party to the Agreement where control means the ownership or control, directly or indirectly, of more than 50% of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.

Cloud Solution means the hosting, management and operation of the Software identified in the Order Form from server(s) located at Sovos’ or its hosting provider’s data center(s).

Customer means natural or legal persons who have contracted Sovos Software and Services of and/or its users, such as employees, consultants, contractors or agents of the client authorized to use the Software and Services and to whom have been assigned usernames and passwords.

Data Sheets means the terms and conditions made available by Sovos to you that are applicable to the Software and Services identified in an Order Form of Proposal.

Documentation means the user instructions, release notes, manuals and on-line help files, as updated and generally made available by Sovos from time to time, regarding the use of the Software.

Metrics means the limitation on the usage of Software and/or Services designated and/or defined in the applicable Order Form or Proposal.

Order Form or Proposal means the document(s) associated with this Agreement, regardless of actual name, that describe order-specific information such as description of Software, Metrics, and fees.

Order Term is defined in Section 11.2.

Services means the Sovos professional, business process outsourcing, and/or other services identified in an Order Form, Proposal or SOW.

Software means any software products made available by Sovos (including corresponding toolkits and any other programs made available by Sovos which are designed to operate with the software and any Documentation) as identified in an Order Form or Proposal.

Sovos Data means any and all representations, facts, concepts, instructions, and other similar information and materials, including without limitation regulatory, sales, use, and/or value added tax information, non-wage income reporting information and compilations of such information, together with any updates thereof, generally released by and supplied by Sovos to you for use solely within the Software.

SOW is defined in Section 7.1.

2. Subscription Terms
   • Incorporation of Order Forms and Data Sheets. Customer may procure Access to and use of Software only pursuant to validly executed Order Forms and then current and applicable Data Sheets.
   • Rights Granted. Subject to the provisions contained in this Agreement, including without limitation the restrictions set forth below and timely payment of the applicable fees, for the duration of the applicable Order Term, Sovos hereby grants Customer the non-exclusive, non-assignable, non-transferable, limited right to Access and use the Software solely for the internal business purposes of Customer. Software shall be provided to Customer as a Cloud Solution or as an On-Premise Solution, as set forth on the applicable Order Form.
   • Restrictions on Use. Customer shall not: (i) copy, resell, host, or rent any Software or any performance or capacity statistics or the results of any benchmark test performed on the Software; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Software, in whole or in part, or otherwise write or develop any derivative works based upon the Software, except as otherwise permitted in the applicable Data Sheet; or (iii) use the Software to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis or otherwise allow access to, provide, divulge or make available the Software to any user other than Customer’s employees and contractors who have a need to such access and who shall be bound by nondisclosure obligations that are at least as restrictive as the terms of this Agreement.
   • Customer may authorize Access and use of the Software by an Affiliate, provided (i) such Affiliate is listed and identified in the Order Form (“Authorized Affiliate”) and (ii) the combined use of the Software hereunder by Customer and Customer’s Authorized Affiliates shall in no event exceed the Metrics authorized under the applicable Order Form.
   • Support Services. Sovos will provide maintenance and support for the Software in accordance with the then current Sovos Maintenance and Support Policy and Support Services Data Sheet.

3. Fees, Taxes and Payments
   • Fees and payment terms are specified in the applicable Order Form or SOW. Except as otherwise expressly specified in the Order Form or SOW, all recurring payment obligations start from the execution of the Order Form or SOW, and amounts paid or payable for Software are not contingent upon the performance of any Services performed pursuant to an SOW. Unless otherwise specified in the Order Form or SOW, payment of all fees is due 30 days after the invoice date. Interest accrues on undisputed past due balances at the lesser of 1½% per month or the highest rate allowed by law. Customer shall reimburse Sovos for any expenses incurred, including interest and reasonable attorney fees, in collecting amounts due to Sovos hereunder that are not under good faith dispute by you.
   • Taxes. Customer shall be responsible for payment of all taxes (excluding those on Sovos’ net income) relating to the provision of the Software and/or Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to Sovos to evidence Customer’s tax exemption status is provided by you to Sovos prior to the delivery of Software and/or Services. All fees are exclusive of turnover tax (VAT) and other government levies that have been or are later imposed.
   • Customer understands that its right to use the Software and/or Services is limited by the Metrics set forth in an Order Form. All fees are based on the Metrics purchased and the quantities of Metrics provided in the Order Form represent maximum amounts that you have committed to for the Term. There shall be no fee adjustments or refunds for any decreases in usage or Metrics during the Term. Unless the Order Form includes an overage rate, Customer will pay additional fees for any Metrics over the amount set forth in the Order Form at Sovos’ then current rates.

4. Ownership; Intellectual Property
   • Ownership and Proprietary Rights. Customer owns and shall own all rights to Customer data provided to or accessed by Sovos, including such Customer data as processed or manipulated by Sovos in connection with the Software and Services. Except for the rights granted to Customer in this Agreement, Customer will have no interest in the Software. All rights, title, and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to Sovos Data, the Software and Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Sovos.  Customer may not obscure, alter or remove any copyright, trademark, service mark or proprietary rights notices on any Software.
   • Aggregated Data. Sovos shall have a perpetual, irrevocable, worldwide right to use any de-identified and aggregated data that arises from use of the Software and Services by Customer, provided such data (i) is not identifiable to any person or entity and (ii) does not contain any of Customer’s Confidential Information.
   • Intellectual Property Indemnity. Subject to the remainder of this Section 3, Sovos shall, at its expense, defend Customer in any suit or cause of action alleging that the Software as used in accordance with this Agreement infringes any copyright or patent of any third party and indemnify Customer for any damages awarded in any final judgment or settlement (including attorneys’ reasonable fees and court costs to the extent that Sovos fails to promptly assume such defense) of such suit or cause of action.  The foregoing obligations of Sovos are subject to the following requirements: Customer shall promptly notify Sovos of any and all such suits and causes of action but Sovos shall only be relieved of its indemnification obligations to the extent Sovos is actually prejudiced by Customer’s failure to promptly notify; and Sovos controls any negotiations or defense of such suits and causes of action, and Customer provides reasonable assistance as requested by Sovos.  If the Software is held or believed to infringe on any copyright or any patent of a third party, Sovos may, in its sole discretion, (a) modify the Software to be non-infringing, (b) obtain for Customer a right to continue using the Software, or (c) if neither (a) nor (b) are practical in Sovos’ sole judgment, terminate the affected Software subscription and return to Customer the unused portion of any fees paid for the affected Software. The foregoing obligations of Sovos do not apply to the extent that the allegedly infringing Software or portions or components thereof or modifications thereto result from (i) any change in the Software made by Customer or any third party for Customer, except applying approved patches and/or updates, (ii) Customer’s use of the Software except as permitted under this Agreement or in combination with any hardware, software or other materials not expressly authorized by Sovos where absent such combination the Software would be non-infringing, (iii) Customer’s use of other than the most current release of the Software that results in a claim or action for infringement that could have been avoided by use of the current release, provided that Sovos has supplied Customer with the most current release.

5. Confidentiality
   • This Section 5.1 shall supersede all previous Nondisclosure/Confidentiality Agreements that may exist between the parties with respect to the subject matter of this Agreement. “Confidential Information” means any non-public financial, business and other information, in whatever form or medium, that is furnished, including technical data, software, source code, object code, specifications, pricing, know-how or business information specific to Customer or Sovos, which is marked as confidential or contains a similar legend or which, given the nature of the information and circumstances of disclosure, would reasonably be considered confidential.  Confidential  Information  does  not include information which (a) was in the public domain at  the  time  it  was  disclosed  or  becomes  in  the  public domain through no fault of the receiver; (b) can be shown by  written  documentation  to  have  been  known  to  the receiver, without restriction, at the time of disclosure; (c) was  independently  developed  by  the  receiver  without any use of the discloser’s Confidential Information; or (d) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights.  Notwithstanding anything to the contrary herein, the Software shall not be deemed to have been placed in the public domain by Sovos for purposes of this Section 5.1.  The receiver shall use the Confidential Information solely for the purpose of this Agreement and shall treat as confidential and shall not use, disclose or otherwise make available any Confidential Information to any person other than employees, consultants, agents, or contractors of the receiver or its Affiliates who have a specific need to know and are bound by terms of non-disclosure no less restrictive than this Agreement. This Section 5.1 will not prohibit disclosure of Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, the receiver will furnish prompt notice thereof to enable the discloser to seek a protective order or otherwise prevent such disclosure and will only disclose Confidential Information to the extent required by such order. The obligations of this Section 5.1 will survive termination for any reason for a period of five years.  The parties agree that each party shall be entitled to seek equitable relief to protect its interests under this Section 5.1, including preliminary and permanent injunctive relief, as well as money damages. Nothing stated herein shall be construed to limit any other remedies available to the parties for breach of this Section 5.1.

6. Security
   • Sovos’ Responsibility. Sovos will comply with its then current and published Sovos Security Schedule located at https://sovos.com/customer-legal-data-sheets/. To the extent not specifically addressed by the Security Schedule, Sovos will maintain safeguards and take commercially reasonable technical, physical and organizational precautions to ensure that Customer’s data is protected from unauthorized access and disclosure.
   • Customer’s Responsibility. Customer will maintain commercially reasonable security procedures for the transmission of data to Sovos.  Customer will notify Sovos promptly of any suspected security breach regarding transmissions to or from Sovos.
   • Cloud Solutions. To the extent Customer uses Software in Sovos’ cloud environment, Customer will not: (a) intentionally breach or attempt to breach the security of the Software or any network, servers, data, computers or other hardware relating to or used in connection with the Software, or any third party that is hosting or interfacing with any part of the Software; or (b) use or distribute through the Software any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Software or the operations or assets of any other customer of Sovos or any third party. Customer will comply with the user authentication requirements for use of the Software. Customer will only permit authorized users to Access and use the Software. Customer is solely responsible for monitoring its authorized users’ Access to and use of the Software, and any material failure by any authorized user to comply with the Agreement shall be deemed to be a material breach by Customer. Customer must take all necessary steps, including providing prompt notice to Sovos, to effect the termination of an access ID for any authorized user if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
7. Services
   • Statements of Work. Sovos will perform the Services for Customer either (i) identified in an Order Form, or (ii) for certain Services, described in one or more work orders, work authorizations or statements of work (collectively “SOW”) as the parties may agree to in writing from time to time. Each SOW, once validly executed, shall become a part of the Agreement.
   • Delivery of Services. Sovos will deliver Services in a good and workmanlike manner consistent with applicable industry standards.

8. Compliance with Laws
   • Each party shall at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
   • Specific Commitments.  Notwithstanding anything in the Agreement to the contrary, and in lieu of any conflicting provisions, each party shall comply with (i) all applicable anti-bribery and anti-corruption laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010; (ii) all applicable anti-money laundering laws and regulations, including but not limited to the U.S. Money Laundering Control Act of 1986 and the U.K. Proceeds of Crime Act 2002; and (iii) all applicable laws administered by the U.S. Office of Foreign Assets Control or any other governmental entity imposing economic sanctions and trade embargoes (and Customer shall not directly or indirectly export, re-export, transfer, or otherwise deliver the Software or Services, or any portion of the Software or Services in violation of applicable economic sanctions or trade embargoes, or facilitate any transaction in violation of applicable economic sanctions or trade embargoes).
9. Disclaimers
   • No Tax or Legal Advice. Sovos does not and shall not be deemed to provide tax or legal advice in providing the Software and Services. Sovos will use reasonable efforts to ensure that the Software and Services are current and accurate, but due to rapidly changing tax rates and regulations which require interpretation by Customer’s qualified tax and legal professionals, Customer bears full responsibility to determine the applicability of the output generated by the Software and Services and confirm its accuracy. Customer is solely responsible for any liabilities, penalties, or interest arising from use of the Software and/or Services. Customer will not rely solely on its use of the Software and Services in calculating any taxes or fees owed or otherwise complying with any laws and governmental regulations.
   • THE SOFTWARE AND THE SERVICE ARE PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. YOU ASSUME THE SOLE RISK OF MAKING USE OF THE SOFTWARE AND THE SERVICES. SOVOS EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, (I) ANY WARRANTY THAT SOFTWARE AND SERVICES ARE FREE OF ERRORS, OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED, (II) ANY WARRANTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE SOVOS DATA AND CALCULATIONS MADE BY THE SOFTWARE AND SERVICES, (III) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE.

10. Limitation of liability
    • Limit on Monetary Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SOVOS‘ TOTAL LIABILITY FOR ANY AND ALL DAMAGES IN CONNECTION WITH THIS AGREEMENT, ANY ORDER FORM MADE HEREUNDER, AND ALL SOVOS SOFTWARE AND/OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO SOVOS FOR THE SPECIFIC SERVICE OR SOFTWARE FROM WHICH SUCH CLAIM ARISES WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
    • No Consequential Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SOVOS WILL NOT BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION, INACCURATE DATA, LOSS OF DATA OR COST OF COVER) THAT CUSTOMER MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE AGREEMENT OR THE SOFTWARE AND SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Term and termination
    • Agreement Term. The term of this Agreement shall commence on the Effective Date and shall continue until the expiration or termination of all Order Forms and SOWs, unless otherwise terminated earlier as provided hereunder.
    • Order Term. Sovos shall provide the Services and/or Access to the Software for the period specified in an Order Form (“Order Term”). After the first Order Term specified in the Order Form (the “Initial Order Term”), Software Access and/or Services shall automatically be renewed for successive periods of the Renewal Order Term specified in the Order Form (the “Renewal Order Term”), unless either party gives written notice of its intention to terminate the Order Form at least 45 days prior to the end of the Initial Order Term or any Renewal Order Term.
    • Either party may terminate the Agreement immediately upon written notice at any time if the other party: (i) commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure within 30 days of being notified in writing of such breach, except for breach of Section 3.1 of the Agreement which shall have a ten (10) day cure period; or (ii) ceases business operations; or (iii) becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events). Sovos may suspend any or all Services and Access to and use of the Software upon 10 days written notice to Customer in the event Customer is in material breach of this Agreement and has not cured such breach within the 10-day period. Sovos will reinstate Access to the Software or Services upon cure of the breach.
    • Partial Termination. Where a party has rights to terminate, such party may, at its discretion either terminate the entire Agreement or the applicable Order Form or SOW. Order Forms and SOWs that are not terminated shall continue in full force and effect under the terms of this Agreement.
    • Those provisions that by their nature are intended to survive termination of this Agreement shall so survive. Otherwise following termination, neither party shall be under any continuing obligation of performance pursuant to this Agreement.

12. MISCELLANEOUS
    • General Provisions. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes and overrides all prior agreements on the same subject matter and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. Customer agrees that it has not relied on any oral or written representations made by Sovos in entering into this Agreement including, but not limited to, any representations regarding future functionality or features. This Agreement shall not be modified except by a writing signed by Sovos and Customer.  The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.  If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Customer and Sovos shall be construed and enforced accordingly. Sovos may designate any of its Affiliates, an agent or subcontractor to perform such tasks and functions to complete any services covered under this Agreement, provided that Sovos will be responsible for any act or omission of such Affiliate, agent or subcontractor, which, if taken by Sovos, would constitute a breach or violation of this Agreement. Any party hereto will be excused from performance under this Agreement (except for any obligations to make payment to the other party) for any period of time that the party is prevented from performing its obligations hereunder for any cause beyond the party’s reasonable control, including but not limited to, an act of God, war, utility or telecommunication failures (“Force Majeure Event”).  Both parties will use reasonable efforts to mitigate the effect of a Force Majeure Event.  Sovos may assign the Agreement to an affiliate, a successor in connection with a merger, acquisition, or consolidation, or to the purchaser in connection with the sale of all or substantially all of its assets. Customer may not assign the Agreement, nor any of the rights or obligations under the Agreement, without the prior written consent of Sovos, such consent not to be unreasonably withheld.  This Agreement does not confer any rights or remedies upon any person or entity other than Sovos and Customer and their respective successors and permitted assigns. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of the Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.  This Agreement is governed by the laws of Portugal. Any dispute shall be litigated exclusively at the Lisbon Court without recourse to arbitration.  Applicability of the United National Convention on Contracts for the Sale of Goods is excluded.
    • Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other party at the addresses set forth on the Order Form (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), or email (with confirmation of transmission), or certified or registered mail. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
    • Publicity. Neither party shall issue or release any announcement or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trademarks, service marks, trade names, or logos, in each case, without the prior written consent of the other party, provided, however, that Sovos may, without Customer’s consent, include Customer’s name in its lists of current customers or similarly identify Customer in promotional and marketing materials.
    • Order of Precedence. To the extent of any conflicting terms and conditions, the order of precedence shall be as follows: (i) this Agreement, (ii) a Data Sheet, (iii) an Order Form, and (iv) an SOW, except where the Order Form or SOW expressly states the intent to supersede a specific portion of the Agreement.

13. DATA PRIVACY ADDENDUM (“DPA”). In the course of providing the Software and Services to you pursuant to the Agreement, Sovos and its Affiliates may Process Personal Data on behalf of you, and the parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith. This DPA forms part of the Agreement between you and Sovos and reflects the parties agreement with regard to the Processing of Personal Data. By agreeing to this DPA, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of your Authorized Affiliates, if and to the extent Sovos processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include you and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

1.DATA PROCESSING TERMS DEFINITIONS

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (is permitted to use the Services pursuant to the Agreement between Customer and Sovos, but has not signed its own Order with Sovos and is not a “Customer” as defined under the Agreement.

“Business Contact Information (BCI)” means Customer’s own business contact information that Customer has provided for the purposes of communicating with them such as invoicing, support services, marketing etc.; this information may include: customer contact name, job title, business contact email address, telephone numbers and registered office address. Whilst this information may be publicly available, some of it may also be Personal Data. Customer agrees that the Business Contact Data may be transferred to other Sovos Affiliates (including overseas transfers) for the purposes of administration and performing the contract.

“CCPA” means the California Consumer Privacy Act of 2018 (AB-375), as amended by the CPRA, including all regulations relating thereto.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Customer Data” means all Personal Data Processed by Sovos on behalf of Customer for the purpose of providing the Services.

“Data Protection Laws and Regulations” means the applicable and relevant data privacy laws and regulations in the territory where the Sovos offices are located and Sovos provides the Services and products: EU GDPR and the UK Data Protection Act 2018 and any other legislation in force from time to time and any laws that replace or amend any of these (including GDPR) together with all applicable laws relating to the processing or protection of personal data and privacy, including where applicable, the guidance and codes of practice or conduct issued or approved by Article 29 Working Party or the European Data Protection Board (as applicable), the UK Information Commissioner and/or relevant supervisory authorities from time to time. Brazil’s, Lei Geral de Protecao de Dados (LGPD). United States and its states including California Consumer Privacy Act (CCPA). Turkey (KKVK).

“Data Subject” means the identified or identifiable person to whom Personal Data relates, including as applicable any “consumer” or “household” as that term is defined by the CCPA.

“GDPR” means the 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).

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

“Security Schedule” means the then current Security Schedule applicable to the Services purchased by Customer, as updated from time to time, and located at https://sovos.com/customer-legal-data-sheets/ .

“Sovos” means the Sovos entity which is a party to this DPA, being Sovos Compliance, LLC, a company incorporated in Delaware, or Sovos Affiliate in the territory where the Services are provided.

“Sovos Group” means Sovos and its Affiliates engaged in the Processing of Personal Data.

“Standard Contractual Clauses” means the agreement executed by and between Customer and Sovos Compliance, LLC, and attached hereto as Schedule 2 pursuant to the European Commission’s decision on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means any Processor engaged by Sovos or a member of the Sovos Group.

“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR, or other relevant territory regulatory authority for data privacy.

2. PROCESSING OF PERSONAL DATA
   • Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Sovos is the Processor and that Sovos or members of the Sovos Group will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
   • Compliance with Law. Each party shall comply with the obligations that apply to it under applicable Data Protection Laws and Regulations. Sovos acknowledges that Customer is acting hereunder in reliance on Sovos’ compliance with applicable Data Protection Laws and Regulations. Customer acknowledges that Sovos is acting hereunder in reliance on Customer’s compliance with applicable Data Protection Laws and Regulations.
   • Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including obtaining all necessary consents from the data subjects.
   • Sovos’ Processing of Personal Data. Sovos shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) as needed to provide the Services, (ii) in accordance with the specific instructions that Sovos has received from Customer, and (iii) and as needed to comply with law (in which case, Sovos shall provide prior notice to Customer of such legal requirement, unless that law prohibits this disclosure) (v) shall not sell the Personal Data as such term is defined by the CCPA (regardless of whether CCPA applies). For the avoidance of doubt, Sovos will Process Personal Data in accordance with the legal requirements directly applicable to Sovos’ provision of the Services.
   • Details of the Processing. The subject-matter of Processing of Personal Data by Sovos is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.

• DATA SUBJECT REQUESTS

Sovos shall, to the extent legally permitted, immediately notify Customer if Sovos receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Sovos shall assist Customer by appropriate technical and organizational measures and shall immediately provide Customer with all relevant information for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Sovos shall upon Customer’s request assist Customer in responding to such Data Subject Request, to the extent Sovos is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Sovos’ provision of such assistance to the Customer, but information provided to the Data Subject shall be provided at no charge.

4. SOVOS PERSONNEL

4.1         Confidentiality. Sovos shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and are subject to an enforceable obligation of confidence with regards to the Personal Data.

4.2         Limitation of Access. Sovos shall ensure that Sovos’ access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

4.3         Data Protection Officer. Members of the Sovos Group have appointed a data protection officer. The appointed person may be reached at privacy@sovos.com.

5. SUB-PROCESSORS

5.1         Appointment of Sub-processors. Customer acknowledges and agrees that Sovos and Sovos’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Sovos or a Sovos Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2         List of Current Sub-processors and Notification of New Sub-processors. Sovos shall make available to Customer the current list of Sub-processors for the Services identified in Annex 2 of the Standard Contractual Clauses attached hereto. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location. Sovos will update such list with details of any change in Sub-Processors at least 10 days’ prior to such change and shall communicate such change via email to Customer and Customer has the right to object (acting reasonably) to the change in Sub-Processor within 14 days of being notified of such change.

5.3         Liability. Sovos shall be liable for the acts and omissions of its Sub-processors to the same extent Sovos would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

6. SECURITY

Sovos shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the then current Sovos Security Schedule.

7. DATA PROTECTION IMPACT ASSESSMENT & AUDIT

Upon Customer’s request, Sovos shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the relevant Data Protection Laws to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise already have access to the relevant information, and to the extent such information is available to Sovos. Sovos shall provide reasonable assistance to Customer in relation to any approval of the Information Commission or other Supervisory Authority to any Processing of Customer Data, to the extent required under law. Subject to Confidentiality Agreements being in place, Customer (at its own cost) is entitled to audit Sovos for its compliance under this Agreement (not more than once per year), upon giving Sovos 20 days’ notice with written scope and causing minimal business disruption. For the avoidance of doubt the scope of such audit shall be strictly limited to the Customer Personal Data processed under this Agreement.

8. EUROPEAN DATA TRANSFERS
   • (Where applicable for European and UK contracts) Any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations, shall be governed by the Standard Contractual Clauses set forth in Schedule 2 to this DPA apply to the Services, subject to the additional terms in this Section 8.

8.2         Customers covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 8 apply to (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and its Authorized Affiliates and, (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed Order Forms for the Services. For the purpose of the Standard Contractual Clauses and this Section 8, the aforementioned entities shall be deemed “Data Exporters”.

8.3         Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions to Sovos at the time of signature of the Agreement for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and applicable Order Form(s); (b) Processing initiated by Customer’s users in their use of the Services and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.

8.4         Sub-processors. Pursuant to the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) Sovos’ Affiliates may be retained as Sub- processors; and (b) Sovos and Sovos’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Sovos shall make available to Customer the current list of Sub-processors in accordance with Section 5.2 of this DPA. Pursuant to the Standard Contractual Clauses, Customer acknowledges and expressly agrees that Sovos may engage new Sub-processors as described in Sections 5.2 and 5.3 of the DPA.

8.5         Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in the Standard Contractual Clauses shall be provided by Sovos to Customer upon Customer’s written request.

• Conflict. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Schedule 2, the Standard Contractual Clauses shall prevai

• SECURITY INCIDENTS

Sovos maintains security procedures specified in the Security Schedule and shall promptly notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data, including any Personal Data, transmitted, stored or otherwise Processed by Sovos or its Sub-processors of which Sovos becomes aware (a “Security Incident”). Sovos shall make reasonable efforts to take those steps as Sovos deems necessary and reasonable in order to remediate the cause of such a Security Incident to the extent the remediation is within Sovos’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer’s own security failures or that of Customer’s users.

• RETURN AND DELETION OF CUSTOMER DATA

Upon termination or expiry of the Agreement and at the customer’s request, (at Customer’s cost for a different formats), either return all Customer Data or securely dispose of Customer Data, except to the extent that any applicable law or regulation requires Sovos to retain a copy of the Customer Data for a fixed period. Sovos shall securely dispose of any Customer Data no longer required to be stored by Sovos under applicable law or regulation or no longer required for permitted Processing under applicable Data Protection Laws and Regulations.

11. AUTHORIZED AFFILIATES

11.1       Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Sovos and each such Authorized Affiliate subject to the provisions of the Agreement and this Section Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

11.2       Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Sovos under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

11.3       Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with Sovos, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, provided that, except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Sovos directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together.

12. LIMITATION OF LIABILITY

12.1       Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and Sovos, whether in contract, tort or under any other theory of liability, is subject to the “Limitation of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

12.2       For the avoidance of doubt, Sovos’ and its Affiliates’ total liability for all claims from Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

13. CHANGES

Sovos may, from time to time and in its sole discretion, make changes to this DPA or the terms and conditions set forth herein, provided however, in no event shall Sovos make any changes that will adversely impact or degrade Sovos’ obligations pursuant to this DPA without notifying the Customer. The Customer has the right to object to any such change within 30 days of receipt of the notice (acting reasonably) or will be deemed to have accepted such change. When Sovos makes changes hereto which do not adversely impact or degrade Sovos’ obligations pursuant to this DPA, Sovos will provide notice as appropriate under the circumstances, e.g., by displaying a notice within the applicable Sovos products or services or by sending Customer an email.

______________________________________________________________________________________________________________

ANNEX I (A&B): DETAILS OF THE PROCESSING

NATURE AND PURPOSE OF PROCESSING

Sovos will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.

DURATION OF PROCESSING

Subject to Section 10 of the DPA, Sovos will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

CATEGORIES OF DATA SUBJECTS

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Prospects, customers, business partners and vendors of Customer (who are natural persons)
• Employees or contact persons of Customer’s prospects, customers, business partners and vendors
• Employees, agents, advisors, freelancers of Customer (who are natural persons)
• Customer’s Users authorized by Customer to use the Services

TYPE OF PERSONAL DATA

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• Contact information (company, email, phone, physical address)
• Tax ID number and/or social security number
• Date of birth
• Salary or other compensation amounts
• Connection data (internet or other electronic network activity information)

______________________________________________________________________________________________________________

STANDARD CONTRACTUAL CLAUSES FOR TRANSFERS OUTSIDE OF THE EU

SECTION I

Clause 1 – Purpose and scope

(a)          The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of data to a third country.

(b)          The Parties:

(i)           the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii)          the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter ‘Clauses’).

(c)          These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d)          The Annex to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2 – Effect and invariability of the Clauses

(a)          These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual

clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Annex. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b)          These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3 – Third-party beneficiaries

(a)          Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i)           Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii)          Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii)          Clause 9(a), (c), (d) and (e);

(iv)         Clause 12(a), (d) and (f);

(v)          Clause 13;

(vi)         Clause 15.1(c), (d) and (e);

(vii)         Clause 16(e);

(viii)        Clause 18(a) and (b).

(b)        Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4 – Interpretation

(a)        Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b)        These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c)        These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5 – Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6 – Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 7 – Docking  (not used)

Clause 8 – Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1   Instructions

(a)        The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b)        The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2   Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3   Transparency

On request, the data exporter shall make a copy of these Clauses, including the Annex as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Annex to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4   Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5   Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6   Security of processing

(a)          The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b)          The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c)          In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d)          The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7   Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8   Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

the onward transfer is to a country benefitting from an adequacy decision pursuantto Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9   Documentation and compliance

(a)          The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b)          The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c)          The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d)          The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e)          The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9 – Use of sub-processors

(a)          GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b)          Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c)          The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d)          The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e)          The data importer shall agree to a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10 – Data subject rights

(a)          The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b)          The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c)          In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11 – Redress

(a)          The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b)          In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c)          Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i)           lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii)          refer the dispute to the competent courts within the meaning of Clause 18.

(d)          The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e)          The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f)           The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12 – Liability

(a)          Each Party shall be liable to the other Party for any damages it causes the other Party by any breach of these Clauses.

(b)          The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c)          Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d)          The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e)          Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f)           The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party that part of the compensation corresponding to its/their responsibility for the damage.

(g)          The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13 – Supervision

[Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14 – Local laws and practices affecting compliance with the Clauses

• The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
• The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
• the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories andormat of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
• the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii)          any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c)          The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d)          The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e)          The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f)           Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 – Obligations of the data importer in case of access by public authorities

15.1       Notification

(a)          The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i)           receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii)          becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b)         If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c)          Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d)          The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e)          Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2       Review of legality and data minimisation

(a)          The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b)          The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c)          The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16 – Non-compliance with the Clauses and termination

(a)          The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b)          In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c)          The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i)           the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii)          the data importer is in substantial or persistent breach of these Clauses; or

(iii)          the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d)          Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e)          Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17 – Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Portugal.

Clause 18 – Choice of forum and jurisdiction

(a)          Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b)          The Parties agree that those shall be the courts of Lisbon.

(c)          A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d)          The Parties agree to submit themselves to the jurisdiction of such courts.

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ANNEX II TO THE STANDARD CONTRACTUAL CLAUSES – SECURITY

This Annex forms part of the Clauses as agreed by the parties.

Description of the technical and organisational security measures implemented by the Data Importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Sovos Security Schedule applicable to the specific Services purchased by Data Exporter and made available by Data Importer.

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ANNEX III TO THE STANDARD CONTRACTUAL CLAUSES (AFFILIATES & SUBPROCESSORS)

Brazil:

Sovos Compliance Desenvolvimento de Sistemas LTDA

Taxweb Software de Compliance Fiscal S.A.

FIT Sistemas Solucoes LTDA

Millenium Solucoes EM Tecnologia LTDA

Saphety Brasil Transações Eletrônicas LTDA

Chile:

E-Partners SpA

Acepta.com S.A.

Colombia:

Acepta Colombia S.A.S.

Paperless S.A.S.

Saphety Transacciones Electrónicas S.A.S.

Denmark:

Fiscal Reps ApS

Ecuador:

Esdinamico Compania Ltda.

Finland:

Fiscal Reps Finland OY

France:

Fiscal Reps S.a.r.l.

Germany:

Sovos Compliance GmbH

Greece:

Sovos Compliance (Hellas) S.M. Ltd

Italy:

Foriba SRL

Fiscal Reps SRL

Luxembourg:

Fiscal Reps S.a.r.l.

Malta:

Fiscal Reps Malta Ltd

Mexico:

Advantage Security, S. DE R.L. DE C.V.

Netherlands:

Sovos Compliance B.V.

Peru:

Acepta.com Peru S.A.C.

Paperless S.A.C.

Portugal:

Petapilot S.A.

Saphety Level – Trusted Services S.A.

Fiscal Reps Unipessoal Lda

Spain:

Fiscal Reps SL

Sweden:

Trustweaver AB

Fiscal Reps Sweden AB

Turkey:

ISIS E-Dönüşüm Teknolojileri Sanayi Ticaret Anonim Şirketi

F.I.T. Bilgi Islem Sistemleri Servisleri Sanayi ve Ticaret Anonim Sirketi

United Kingdom:

Fiscal Reps Limited

Sovos Compliance Limited

Accordance Technical Services Limited

United States:

Sovos Compliance LLC