Master Services & Subscription Agreement
PLEASE READ THIS MASTER SERVICES & SUBSCRIPTION AGREEMENT CAREFULLY, AS THIS AGREEMENT, TOGETHER WITH THE SEDNA ORDER FORM ON WHICH IT IS REFERENCED, CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS CUSTOMER’S USE OF THE SEDNA PLATFORM AND THE PROVISION OF SERVICES BY SEDNA (“AGREEMENT”). CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SEDNA PLATFORM AND SERVICES.
This Agreement is entered into by and between the customer, identified on the Order Form ( “Customer”) and SEDNA (“SEDNA”) and is effective as of the date Customer receives access or accesses the SEDNA Platform or Services or signs the Order Form, whichever comes first (the “Effective Date“). SEDNA and Customer are together referred to as the “Parties” and individually as a “Party”. This Agreement and the applicable Order Form set out the terms and conditions under which Customer is granted access to the SEDNA Platform and Services.
- SCOPE OF THE AGREEMENT
- Agreement and Documents: This Agreement, together with the Documents, establishes the terms and conditions under which SEDNA will provide the SEDNA Platform and any associated Professional Services, to the Customer.
- DEFINITIONS AND INTERPRETATION
- Defined Terms. As used in this Agreement, and unless elsewhere defined, the following terms shall have the following meanings:
- “Affiliate” means, with respect to either Party, such Party and any other entity that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, that Party.
- “Authorized User” means an employee, agent or independent contractor of the Customer who is authorized by the Customer to use the SEDNA Platform.
- “Confidential Information” means all confidential information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, and includes this Agreement and all Documents, as well as inventions, know-how, trade secrets, business and marketing plans, technology and technical information, product plans and designs and business processes disclosed by such Party, and where the Disclosing Party is SEDNA, Confidential Information shall include the SEDNA Platform. Notwithstanding the foregoing, Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- “Control” means the power to direct or cause the direction of the management and policies of an entity, whether through ownership of more than 50% of the equity or voting rights in such entity, the right to appoint a majority of its board of directors or other equivalent body, by contract or otherwise, whether directly or indirectly. The term “Controlled” has a correlative meaning.
- “Customer” means the company executing this Agreement and the applicable Documents, for its own benefit and, where applicable, for the benefit of one or more of its Affiliates, as specified in the relevant Order Form.
- “Customer Data” means any information that is provided by the Customer in the course of the Customer’s use of the Services and including any “personal information”.
- “Documentation” means any technical specification documentation, technical product descriptions, user guides and technical integration guides relating to SEDNA Platform and Services provided by SEDNA to the Customer, as updated from time to time, and/or available at www.sedna.com/documentation/.
- “Documents” has the meaning assigned in Section 2.2.
- “DPA” means the Data Processing Agreement attached as Schedule B.
- “Force Majeure Event” includes but is not limited to events that delay the performance of a Party’s obligations under this Agreement or prevent a Party from carrying on its business on account of failures of the internet or any public telecommunications network, failures of the hosting provider, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, pandemics, epidemics, explosions, fires, floods, riots, terrorist attacks and wars, but excluding general economic conditions or other general market effects.
- “Intellectual Property Rights” all intellectual property rights of any nature whether registered, registrable or otherwise, including patents, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights in the SEDNA Platform or Services, workflow processes, user interface, designs, and other technologies in and related to the SEDNA Platform or Services, including any upgrades or modifications to the same.
- “Order Form” means each document by which the Customer purchases Services and its subscription to the SEDNA Platform pursuant to this Agreement, including any product schedule. Each Order Form is governed by the terms of this Agreement.
- “Professional Services” means data conversion, implementation, site planning, configuration, transition, integration, software training services, as well as project management and other consulting services provided by SEDNA under a mutually agreed Order Form.
- “Representative” means an Affiliate of a Party, an employee, officer, director, shareholder, consultant or professional adviser of a Party or of any of its Affiliates.
- “SEDNA Platform” means SEDNA’s proprietary software the use of which is granted to the Customer pursuant to this Agreement.
- “Services” means Professional Services, software, product, web or cloud services, Support Services, such other services to be provided by SEDNA pursuant to the Agreement and the applicable Documents.
- “SLA” means the service level agreement specifying SEDNA’s service level commitments which can be found at Schedule C.
- “Subscription Start Date” is the date on which the Customer starts using the SEDNA Platform, or such other mutually agreed date as is specified in the Order Form.
- “Support Services” means the maintenance and support services provided by SEDNA to the Customer as specified in the SLA.
- “Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, indirect, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.
- “Term” means both Initial Term and Renewal Term as specified in Section 11 of this Agreement.
- “Usage Limits” means any limitation that Services are or may be subject to, including but not limited to, Authorized Users and storage space limit.
- Incorporation By Reference. This Agreement incorporates by reference the following documents (the “Documents”): (i) SLA; (ii) the DPA.
- Affiliates. The Customer may supply and extend the benefit of this Agreement to its Affiliates. Alternatively, the Customer may direct that an Affiliate must enter into a Order Form with SEDNA which shall be subject to and incorporate the terms of this Agreement.
- Defined Terms. As used in this Agreement, and unless elsewhere defined, the following terms shall have the following meanings:
- SEDNA PLATFORM AND SERVICES
- Right to Use. Subject to the terms and conditions of this Agreement, SEDNA shall make the SEDNA Platform and Services available to the Customer, solely for the Customer’s internal business purposes. The Customer’s access to, and use of, the SEDNA Platform and Services shall be subject to any Usage Limits and other specific terms in the applicable Order Form.
- Service Level Agreement. SEDNA will provide the SEDNA Platform and related Support Services in accordance with the terms of the SLA.
- Professional Services – Customer Obligations. SEDNA will provide such Professional Services to the Customer as are specified in the Order Form, subject to any change requests that are mutually executed by the Parties. The following terms apply to SEDNA’s Professional Services:
- The Customer will be deemed to have accepted the Professional Services deliverables ten (10) days after SEDNA’s notice of completion, unless the Customer disputes its acceptance prior to such date or the Parties have executed a change order that amends the scope or nature of Professional Services.
- Upon a request by the Customer for a change, SEDNA will confirm its acceptance or rejection of the requested change, any fees associated with the change as well as any timelines. Change requests are only binding if they are set out in a written, mutually executed change order. SEDNA is under no obligation to accept any changes.
- The Customer agrees to cooperate with SEDNA and provide the information and access to facilities that SEDNA reasonably requires. The Customer further agrees to: (i) review documents, test software, and provide feedback in a timely manner, and in accordance with the agreed timelines, if any, and to sign off, make decisions, and take all other actions required to enable SEDNA to complete the Professional Services in a timely and efficient manner; (ii) ensure that all premises visited by SEDNA Representative(s) and subcontractors are safe and accessible; and (iii) appoint a single project manager, and to identify a person who will have final authority to make all decisions on the Customer’s behalf.
- If the Customer delays the performance of any of its obligations set out in this Agreement, there will be an excusable delay in SEDNA’s delivery of the Professional Services, provided that: (i) the fees, milestones and delivery date(s) set out in the applicable Order Form are accordingly revised; (ii) the Customer’s delay does not exceed sixty (60) days. If the delays exceed sixty (60) days, other than in the case of a Force Majeure Event, SEDNA may terminate this Agreement with immediate effect.
- Sub-contractors. SEDNA reserves the right to delegate certain aspects of the Services to sub-contractors, provided that the sub-contractors are bound by adequate confidentiality and privacy and data protection obligations.
- SEDNA Platform – Customer Obligations The Customer agrees that it will not itself, and will not permit others to: (i) transfer, sub-license, sell, rent, lend, lease or distribute all or any part of the SEDNA Platform, Services or any Intellectual Property Rights in the SEDNA Platform or otherwise make the SEDNA Platform available to others other than the Customer and its Authorized Users; (ii) do anything which could reasonably be expected to damage, disable, overburden, materially impair or undermine the performance and security of the SEDNA Platform or Services; (iii) store, distribute or transmit any material during the course of use of the Services that is unlawful, harmful, threatening, defamatory, obscene or infringing on copyright or any other Intellectual Property Rights, or in breach of applicable privacy and anti-spam laws; (iv) use the Services for any activity which violates any laws or Acceptable Use Policy at https://sedna.com/acceptable-use-policy/ or for any purpose or in any manner not expressly permitted in this Agreement or the applicable Documents; (v) decompile, disassemble or reverse-engineer the underlying software or application that is part of the Services or otherwise attempt to derive its source code or create any derivative works of the SEDNA Platform not authorized by SEDNA; (vi) access the SEDNA Platform or Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (vii) modify the SEDNA Platform in any way not authorized by SEDNA; (viii) remove or obscure any proprietary notices or labels on the SEDNA Platform; or (ix) infect the SEDNA Platform with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the SEDNA Platform.
- Other Responsibilities. The Customer shall ensure that: (i) the maximum number and type of Authorized Users that will be permitted to use the SEDNA Platform and their mode of access shall comply with the applicable Order Form; (ii) the Authorized Users will use the SEDNA Platform and Services in accordance with the terms and conditions of this Agreement and the applicable Order Form; and (iii) it only accesses the Services using the provided account credentials, passwords and web addresses (URLs); (iv) it maintains the security of the Customer’s and its Authorized users’ accounts at all times, including but not limited to, keeping any passwords or other account credentials safe and taking precautions to ensure that passwords are changed regularly; (v) it immediately informs SEDNA if passwords or other credentials are compromised in any way; (vi) it has adequate computing and network resources to make proper use of the SEDNA Platform and Services; (vii) it complies with its obligations set out below in Section 6 regarding data privacy; (viii) the use of the Services by a third party is first approved by SEDNA, and the third party agrees to be bound by the Agreement.
- DATA PRIVACY AND PROTECTION
- Definitions. For purposes of any Sections mentioning the Customer Data, the following defined terms have the meaning set forth below:
- “Aggregate Data” means Anonymous Data and data derived from compiling, combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, clients, licenses or user of the SEDNA Platform, or otherwise to permit SEDNA to provide the SEDNA Platform.
- “Anonymous Data” means the anonymous data related to the SEDNA Platform that is derived from the anonymization and aggregation of the Customer Data.
- “General Data Protection Regulation” or “GDPR” means, Regulation 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 on the free movement of such data, and repealing Directive 95/46/EC as amended, replaced or superseded.
- Applicable Laws. In the protection of the Customer Data, SEDNA adheres to the rules of the GDPR and applicable local data protection laws, and, as the “data processor” abides by the provisions of the DPA. SEDNA has further executed appropriate sub-processing agreements with the sub-processors listed in the Documentation, such a list to be updated by SEDNA from time to time.
- Data Protection. Each Party undertakes to comply with its obligations under relevant applicable data protection laws, regulations and guidelines. To the extent that personal information is processed when the Customer or Authorized Users use the SEDNA Platform or Services, the Parties acknowledge that SEDNA and its Affiliates are a data processor and the Customer and its Affiliates are a data controller and the Parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.
- Customer Data. The Customer acknowledges that the collection and submission of the Customer Data is the sole and exclusive responsibility of the Customer. In relation to any and all personal information comprised within the Customer Data, the Customer warrants that such personal information has been obtained and supplied to SEDNA in compliance with applicable laws, including but not limited to the GDPR, and the Customer warrants that it has obtained all necessary consents and approvals from users that are necessary to permit SEDNA to provide the Services under this Agreement. The Customer further acknowledges and agrees that, if the Customer uses the SEDNA Platform to store, process or transmit any sensitive personal information, within the meaning of the GDPR, the Customer has explicit consent of the data subject to process such information.
- Customer Data Use. SEDNA may copy, store, retain the Customer Data on SEDNA’s servers in the European Union for the sole purpose of providing the Services to the Customer and in accordance with the terms hereof. SEDNA will ensure that any of its Representatives dealing with the Customer Data will be made aware of the confidentiality and restrictions on the use of the Customer Data and agree to be bound by them, and that SEDNA is liable for any breach of the same by any such Representatives. SEDNA will also ensure that it will comply with applicable laws (including the GDPR).
- Definitions. For purposes of any Sections mentioning the Customer Data, the following defined terms have the meaning set forth below:
- PAYMENT AND INVOICING
- Fees. The Customer shall pay for the Services in accordance with this Agreement and as specified in the Order Form. The Customer must at all times provide SEDNA with valid, up-to-date and complete contact and billing details.
- Invoicing and Payment. All fees are invoiced in advance of the Initial Term and each Renewal Term, respectively, and are due within thirty (30) days from the date of the invoice, unless otherwise set out in the Order Form. The first billing period commences on the Subscription Start Date and ends on the last day of the Initial Term. All payments must be paid in full without any set-off and fees paid are non-refundable except as otherwise set out in this Agreement. All payments must be made in United States Dollars unless otherwise stated in the invoice.
- Late Payment. If any amounts are not received by SEDNA by the date specified in the Order Form (unless subject to good faith dispute), then such charges shall accrue late interest at a rate of 1 % per month of the outstanding balance or the maximum rate permitted by law (whichever is lesser), from the date the payment was due until the date the outstanding amount is paid. Additionally, if any amount owed by the Customer under the Agreement is overdue, SEDNA shall send a notification to the Customer via email or in writing. If the Customer does not pay the fees within thirty (30) days after the date the payment was due, SEDNA may, without limiting its other rights and remedies, suspend the Customer’s access to the SEDNA Platform and Services, in whole or in part, until such amounts are paid in full or terminate the Services if such non-payment persists for sixty (60) days after the date the payment was due.
- Taxes. Unless otherwise stated, fees do not include any Taxes. The Customer is responsible for paying all Taxes associated with the Services. If SEDNA has the obligation to pay or collect any Taxes associated with the Services for which the Customer is responsible, then the appropriate amount shall be included in the invoice and the Customer agrees to pay such amount. SEDNA is solely responsible for taxes assessable against it based on its income, property and employees.
- Usage Limits. The Customer shall use the Services within usage limits stipulated in the Order Form and Documentation. If Customer exceeds the contractual usage limit, SEDNA may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding SEDNA’s efforts, Customer is unable or unwilling to abide by the contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon SEDNA’s request, and pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
- INTELLECTUAL PROPERTY RIGHTS
- SEDNA Platform and Services. Subject to the limited rights expressly granted hereunder, SEDNA reserves all rights, title and interest in and to the SEDNA Platform and Services and all modifications and improvements to the SEDNA Platform (including Aggregate Data), plus all related Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the SEDNA Platform or Services. The Customer hereby acknowledges and agrees that SEDNA and/or its licensors own all Intellectual Property Rights in all materials connected with the SEDNA Platform and Services.
- Customer Data. The Customer reserves all rights, title and interest in and to the Customer Data, and subject to the limited rights granted by the Customer hereunder, SEDNA acquires no right, title or interest from the Customer under this Agreement in or to the Customer Data or any Intellectual Property Rights therein. The Customer grants SEDNA a limited license to copy, transmit, display and modify such Customer Data, solely as necessary for SEDNA to provide the Services to the Customer under this Agreement, for the improvement of the Services, as well as to derive Aggregate Data in connection with providing the Services.
- Confidentiality. The Parties agree to hold all Confidential Information in confidence for the duration of this Agreement and after its expiration or termination, and agree to use the Confidential Information solely for the purpose of this Agreement and not to disclose such Confidential Information, except as permitted in this Agreement, to anyone other than their employees, advisors and service providers with a bona fide need to know, who shall be governed by a parallel confidentiality of equal or greater force. Additionally, each Party agrees to use at least that degree of care which it uses to protect its own information of a similar proprietary nature, but in no event less than reasonable protection.
- Feedback, Usage and Performance. To the extent the Customer provides any suggestion, idea, enhancement requests, recommendations or comments (“Feedback”) to SEDNA, such Feedback will not be considered Confidential Information and SEDNA will have the unrestricted right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to the Customer. The Customer will have no intellectual property rights in any developments arising from any Feedback. SEDNA shall have the right to collect, track and analyse data and other information relating to the provision, use, and performance of various aspects of the SEDNA Platform and Services including data derived from the Customer Data for the purpose of enhancement of SEDNA Platform and Services. Aggregated Data collected by SEDNA for monitoring, provision, usage and performance of the SEDNA Platform by the Customer will not be considered the Customer Data nor Customer’s Confidential Information.
- LIMITED WARRANTY
- SEDNA Warranty. SEDNA warrants that during the term of this Agreement, the SEDNA Platform and Services will materially perform and be performed in accordance with the specifications in the applicable Documentation, provided, however, that this warranty is given to the Customer only and is void to the degree that any malfunction or failure occurs due to: (i) the SEDNA Platform not being used by the Authorized Users in accordance with this Agreement; (ii) the malfunctioning of the Customer’s or third party’s hardware or software; (iii) any other obligations of the Customer not being performed in accordance with this Agreement and impacting the functionality of the SEDNA Platform or delivery of the Services; or (iv) a Force Majeure Event.
- Remedy. The Customer’s sole and exclusive remedy with respect breach of to the warranties under this Section 8.2 will be that SEDNA will correct the breach of the warranty within a commercially reasonable period, provided that the Customer reports any warranty claims to SEDNA within thirty (30) days of the delivery of the related Services.
- GENERAL DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THIS SECTION, SEDNA MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THAT OPERATION AND ACCESS OF THE SEDNA PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR ENTIRELY SECURE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE.
- LIMITATION OF LIABILITY
- Exclusions. Nothing in this Agreement excludes or limits SEDNA’s or the Customer’s liability for:
- death or personal injury caused by the other Party’s negligence;
- fraud or fraudulent misrepresentation;
- any other liability which cannot lawfully be excluded or limited.
- TO THE EXTENT ALLOWED BY LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO, LOST PROFITS AND REVENUES, LOSS OF DATA, THE COST OF SUBSTITUTE SERVICES, DEPLETION OF GOODWILL, OR OTHER COMMERCIAL OR ECONOMIC LOSS, INCLUDING ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION OR INSTRUCTIONS PROVIDED BY THE CUSTOMER IN CONNECTION WITH SEDNA’S PERFORMANCE OF THIS AGREEMENT OR ANY ACTION TAKEN BY SEDNA AT THE CUSTOMER’S DIRECTION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION, OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAYABLE FOR THE USE OF THE SEDNA PLATFORM AND SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
- Exclusions. Nothing in this Agreement excludes or limits SEDNA’s or the Customer’s liability for:
- Indemnification by SEDNA. SEDNA will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the use of the SEDNA Platform and Services in accordance with this Agreement infringes or misappropriates such third party’s copyright, trademark or patent (a “Claim Against Customer”), and will indemnify the Customer from any direct damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided the Customer (i) promptly gives SEDNA written notice of the Claim Against Customer, (ii) gives SEDNA Systems sole control of the defense and settlement of the Claim Against Customer, and (iii) give SEDNA Systems all reasonable assistance, at SEDNA Systems expense. If such Claim Against Customer has occurred, or in SEDNA’s opinion is likely to occur, the Customer agrees to permit SEDNA, at SEDNA’s sole option and expense, either to procure for the Customer the right to continue using the SEDNA Platform and Services or to replace or modify the same so that it becomes non-infringing without loss of functionality, or if none of the foregoing alternatives is reasonably available, terminate the Agreement and refund to the Customer any prepaid unused fees as of the date of termination.
- Indemnification by the Customer. The Customer will defend SEDNA against any claim, demand, suit or proceeding made or brought against SEDNA by a third party alleging that Customer Data, or Customer’s use of the SEDNA Platform or Services in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against SEDNA”), and will indemnify SEDNA from any damages, reasonable attorney fees and costs finally awarded against SEDNA as a result of, or for any amounts paid by SEDNA under a court-approved settlement of, a Claim Against SEDNA, provided SEDNA (i) promptly gives the Customer written notice of the Claim Against SEDNA, (ii) gives the Customer sole control of the defense and settlement of the Claim Against SEDNA, and (iii) gives the Customer all reasonable assistance, at the Customer’s expense.
- Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
- Term. Unless the Order Form stipulates otherwise, the initial term of the Agreement shall be one (1) year starting from the Effective Date (“Initial Term”). This Agreement shall be automatically renewed for additional periods equal to the Initial Term (each a “Renewal Term”) until either Party provides written notice of intent not to renew at least thirty (30) days prior to the expiration date of the Initial Term or the then-current Renewal Term, if any (both Initial Term and Renewal Term(s) hereinafter referred to together as “Term”).
- Termination for Cause. This Agreement shall terminate forthwith in the event of: (i) a material breach of the Agreement that has not been cured within thirty (30) days of a notification by the innocent Party of such a breach; (ii) an order being made or resolution passed or a petition or court application is made for the winding up, dissolution, liquidation or bankruptcy of either Party (otherwise than for the purpose of reconstructing or amalgamation) or if a receiver is appointed, or if it suspends payment generally, ceases to carry on business or make any special arrangement or compositions with its creditors. Additionally, non-payment by the Customer of any fees owed for a period exceeding sixty (60) days from the date of the invoice shall entitle SEDNA to terminate this Agreement with immediate effect.
- Consequences of Termination. Termination of this Agreement is without prejudice to any rights or obligations accrued by either Party up to and including the date of termination. Upon termination of this Agreement for any reason: (i) all of the Customer’s rights and licenses to use the Services will terminate; (ii) SEDNA will destroy the Customer Data without any compensation being payable to the Customer; and (iii) prior to destroying the Customer Data, SEDNA shall make available to the Customer for a period of no less than thirty (30) days:
- the Customer Data kept in a database of SEDNA’s application will be made available to the Customer in the form of a database dump file (e.g. MySql dump file); or
- File-based Customer Data will be made available for copying through a secure high-availability file service such as Amazon AWS S3.
- Warranty: Each Party represents and warrants that it has full capacity and authority to enter into and perform its obligations under this Agreement and its signatory is duly authorized to execute this Agreement as a Representative of the organization including, where the signatory is the Customer, the Customer has the full capacity and authority to execute and deliver this Agreement and to bind its Affiliates. Any breaches of obligations of the Affiliates hereunder will be enforceable against the Customer.
- Entire Agreement and Precedence. This Agreement, including the applicable Documents, describe the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes any prior understandings or agreements. The Parties agree that any term or condition stated in the Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. The headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Unless otherwise agreed to in writing by the Parties, each Order Form is independent from, and has no impact upon, any other Order Form. Each Order Form is enforceable according to the terms and conditions contained in such Order Form. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) applicable Order Form, (2) any exhibit to this Agreement, (3) this Agreement, and (4) the Documentation.
- Waiver and Severability. Failure or delay by either Party to exercise its right or remedy provided under this Agreement does not mean a waiver of that or any right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. If any provision of this Agreement is found to be invalid or unenforceable by a court, then the other provisions of this Agreement shall remain in force and it will be replaced with a provision that achieves the same purpose as the original to the maximum extent possible.
- No Third-Party Rights. A person (whether natural, corporate or otherwise) who is not a party to this Agreement may not enforce any of its terms. For the avoidance of doubt, this clause shall not apply to any successors or permitted assigns of the Parties.
- Notices. Any notices, reports or other communications required under this Agreement shall be in writing and shall be sufficient if delivered by hand, courier, mail, or email addressed to SEDNA or the Customer at their respective addresses shown on the execution page of this Agreement, or to such other address as the Party shall advise the other Party in writing. Any such notices, reports or other communications shall be deemed to have been received by the Party(s) to whom they were addressed upon delivery by hand, mail, courier, or email, when received.
- Assignment. A Party will not, without prior written consent from the other Party (such consent not to be unreasonably withheld), assign, or transfer this Agreement, except in case of assignment to such Party’s Affiliates or in connection with change of control, merger, corporate restructuring, sale of all or substantially all of such Party’s assets provided that in each of the foregoing exceptions, (i) the assigning Party shall promptly notify the other Party of such assignment; and (ii) the assignee undertakes to comply with the terms of this Agreement.
- No Partnership. This Agreement is not intended to and shall not create a partnership between the Customer and SEDNA or authorize either Party to act as an agent for the other and neither Party shall have the authority to in the name or on behalf of or otherwise bind the other in any way.
- Governing Law and Resolving Disputes. This Agreement is governed by the laws of England and Wales, excluding its conflict of law provisions. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, which cannot be solved amicably amongst the Parties, shall be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (LCIA) pursuant to the Arbitration Rules of the LCIA for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of arbitration shall be London. The Tribunal shall consist of one arbitrator and the language of the arbitration shall be English.
- Survival of Certain Clauses. All terms which by their nature survive termination, shall survive termination of this Agreement.
- Publicity. The Customer grants SEDNA the right to use, in SEDNA’s online and offline promotional and marketing materials the name, logo, and other marks of the Customer as a user of the Services, including a joint-case study, for so long as the Customer uses the Services (and for a reasonable period after termination of the Agreement to allow for SEDNA to remove the Customer’s name and marks from SEDNA’s website).
- Counterparts. This Agreement and any applicable Documents may be executed in one or more separate counterparts and may be executed electronically. Each such counterpart will be considered an original, and all of which together will constitute one and the same instrument.
DATA PROCESSING AGREEMENT
This DPA is entered into between the Controller and the Processor and is incorporated into and governed by the terms of the Agreement.
Any capitalised term not defined in this DPA shall have the meaning given to it in the Agreement.
|“Affiliate”||means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party;|
|“Agreement”||means the agreement between the Controller and the Processor for the provision of the Services;|
|“CCPA”||means the California Consumer Privacy Act of 2018, along with its regulations and as amended from time to time;|
|“Company”||means the SEDNA Affiliate who entered into the Agreement;|
|“Controller”||means the Customer;|
|“Customer Data”||means all data imported into the Services for the purpose of using the Services or facilitating the Customer’s use of the Services;|
|“Data Protection Law”||means all laws and regulations, including laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom any amendments, replacements or renewals thereof, applicable to the processing of Personal Data, including where applicable the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020, the EU GDPR, the UK GDPR, the FDPA, the UK Data Protection Act 2018, the CCPA, the Singapore Personal Data Protection Act (PDPA), the Canadian Personal Information Protection Electronic Documents Act (PIPEDA) and any applicable national implementing laws, regulations and secondary legislation relating to the processing of the Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);|
|“Data Retention Policy”||means the data retention policy of the Company published at: https://sedna.com/data-processing-addendum as amended from time to time;|
|“Data Subject”||shall have the same meaning as in Data Protection Law or means a “Consumer” as that term is defined in the CCPA;|
|“DPA”||means this data processing agreement together with Exhibits A and B;|
|“EEA”||means the European Economic Area;|
|“EU GDPR”||means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (General Data Protection Regulation);|
|“FDPA”||means the Swiss Federal Act on Data Protection of 19 June 1992 (SR 235.1; FDPA) and as amended from time to time;|
|“Personal Data”||shall have the same meaning as in Data Protection Law;|
|“Processor”||means the Company, including as applicable any “Service Provider” as that term is defined by the CCPA;|
(i) where the EU GDPR applies, a transfer of Personal Data via the Services from the EEA either directly or via onward transfer, to any country or recipient outside of the EEA not subject to an adequacy determination by the European Commission; and
(ii) where the UK GDPR applies, a transfer of Personal Data via the Services from the United Kingdom either directly or via onward transfer, to any country or recipient outside of the UK not based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018; and
(iii) a transfer of Personal Data via the Services from Switzerland either directly or via onward transfer, to any country or recipient outside of the EEA and/or Switzerland not subject to an adequacy determination by the European Commission;
|“Services”||means all services and software applications and solutions provided to the Controller by the Processor under and as described in the Agreement;|
(i) where the EU GDPR applies, the standard contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries published at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914&from=EN/ (“EU SCCs”); and
(ii) where the UK GDPR applies standard data protection clauses adopted pursuant to Article 46(2)(c) or (d) of the UK GDPR published at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-transfers-after-uk-exit/sccs-after-transition-period/, (“UK SCCs”); and
(iii) where Personal Data is transferred from Switzerland to outside of Switzerland or the EEA, the EU SCCs as amended in accordance with guidance from the Swiss Data Protection Authority; (“Swiss SCCs”);
|“Sub-processor”||means any third party (including Processor Affiliates) engaged directly or indirectly by the Processor to process Personal Data under this DPA in the provision of the Services to the Controller;|
|“Supervisory Authority”||means a governmental or government chartered regulatory body having binding legal authority over a party;|
|“UK GDPR”||means the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.|
- The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Agreement. In providing the Services, the Processor shall process Customer Data on behalf of the Controller. Customer Data may include Personal Data. The Processor will process and protect such Personal Data in accordance with the terms of this DPA.
- In providing the Services to the Controller pursuant to the terms of the Agreement, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with the terms of the Agreement, this DPA and the Controller’s instructions documented in the Agreement and this DPA, as updated from time to time.
- The Controller and Processor shall take steps to ensure that any natural person acting under the authority of the Controller or the Processor who has access to Personal Data does not process them except on the instructions from the Controller unless required to do so by any Data Protection Law.
- Processor Obligations
- The Processor may collect, process or use Personal Data only within the scope of this DPA.
- The Processor confirms that it shall process Personal Data on behalf of the Controller in accordance with the documented instructions of the Controller.
- The Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller, breach any Data Protection Law.
- The Processor shall ensure that all employees, agents, officers and contractors involved in the handling of Personal Data: (i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
- The Processor shall implement appropriate technical and organisational procedures to protect Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
- The Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
- The technical and organisational measures detailed in Exhibit B shall at all times be adhered to as a minimum security standard. The Controller accepts and agrees that the technical and organisational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in the attachments to this DPA, provided such measures are at least equivalent to the technical and organisational measures set out in Exhibit B and appropriate pursuant to the Processor’s obligations in clauses 4.5 and 4.6 above.
- The Controller acknowledges and agrees that, in the course of providing the Services to the Controller, it may be necessary for the Processor to access the Personal Data to respond to any technical problems or Controller queries and to ensure the proper working of the Services. All such access by the Processor will be limited to those purposes.
- Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.
- The Processor may not: (i) sell Personal Data; (ii) retain, use, or disclose Personal Data for commercial purposes other than providing the Services under the terms of the Agreement; or (iii) retain, use, or disclose Personal Data outside of the Agreement.
- Controller Obligations
- The Controller represents and warrants that: (i) it shall comply with this DPA and its obligations under Data Protection Law; (ii) it has obtained any, and all, necessary permissions and authorisations necessary to permit the Processor, its Affiliates and Sub-processors, to execute their rights or perform their obligations under this DPA; and (iii) all Affiliates of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
- The Controller shall implement appropriate technical and organisational procedures to protect Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. The Controller shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Personal Data; (ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
- The Controller acknowledges and agrees that some instructions from the Controller including the Processor assisting with audits, inspections, DPIAs or providing any assistance under this DPA, may result in additional fees. In such case the Processor shall notify the Controller of its fees for providing such assistance in advance and shall be entitled to charge the Controller for its reasonable costs and expenses in providing such assistance, unless agreed otherwise in writing.
- The Controller acknowledges and agrees that: (i) Affiliates of the Processor may be used as Sub-processors; and (ii) the Processor and its Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
- All Sub-processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor set out in this DPA.
- The Controller authorises the Processor to use the Sub-processors included in the list of Sub-processors published at https://sedna.com/list-of-sub-processors to process the Personal Data. During the term of this DPA, the Processor shall provide the Controller with 30 days prior notification, via email, of any changes to the list of Sub-processors before authorising any new or replacement Sub-processor to process Personal Data in connection with provision of the Services.
- The Controller may object to the use of a new or replacement Sub-processor, by notifying the Processor promptly in writing within ten (10) Business Days after receipt of the Processor’s notice. In the event that the Controller objects to a new or replacement Sub-processor (the “Objected Sub-Processor”), Processor will make reasonable efforts to add additional safeguards (covering the specified deficiencies as set out by the Controller) or change the Objected Sub-processor to an alternative Sub-Processor acceptable to the Controller; should Processor be unable to do so, Processor will use reasonable efforts to make available to the Controller a change in the Services or recommend a commercially reasonable change to Controller’s configuration or use of the Services to avoid processing of Personal Data by the Objected Sub-processor without unreasonably burdening the Controller. If Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, the Controller may terminate only those Services that cannot be provided by Processor without the use of the Objected Sub- processor by providing written notice to Processor. The Processor will refund the Controller any prepaid fees covering the remainder of the term of the Agreement following the effective date of termination with respect to such terminated Services.
- All Sub-processors who process Personal Data shall comply with the obligations of the Processor set out in this DPA. The Processor shall, prior to the relevant Sub-processor carrying out any processing activities in respect of the Personal Data, enter into a written agreement with each Sub-processor containing, in substance, data protection obligations no less protective than those contained in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor.
- The Controller agrees that the Processor and its Sub-processors may make Restricted Transfers of Personal Data for the purpose of providing the Services to the Controller in accordance with the Agreement. The Processor confirms that such Sub-processors: (i) are located in a third country or territory recognised by the EU Commission or a Supervisory Authority, as applicable, to have an adequate level of protection; or (ii) have entered into the applicable SCCs with the Processor; or (iii) have other legally recognised appropriate safeguards in place.
- Restricted Transfers
- The parties agree that, when the transfer of Personal Data from the Controller to the Processor or from the Processor to a Sub-processor is a Restricted Transfer that is not within the scope of clause 6.6 (i) or (iii) above, it shall be subject to the applicable SCCs.
- The parties agree that the EU SCCs shall apply to Restricted Transfers from the EEA. The EU SCCs shall be deemed entered into (and incorporated into this DPA by reference) and completed as follows:
- Module Two (Controller to Processor) shall apply where the Customer is a Controller of Customer Data and the Company is processing Customer Data;
- Module Three (Processor to Processor) shall apply where the Company is a Processor of Customer Data and the Company uses a Sub-processor to process the Customer Data;
- In Clause 7 of the EU SCCs, the optional docking clause will not apply;
- In Clause 9 of the EU SCCs Option 2 applies, and the time period for giving notice of Sub-processor changes shall be as set out in clause 6.3 of this DPA;
- In Clause 11 of the EU SCCs, the optional language shall not apply;
- In Clause 17 of the EU SCCs, Option 1 applies and the EU SCCs shall be governed by Irish law;
- In Clause 18(b) of the EU SCCs, disputes shall be resolved by the courts of Ireland;
- Annex I of the EU SCCs shall be deemed completed with the information set out in Exhibit A of this DPA;
- Annex II of the EU SCCs shall be deemed completed with the information set out in Exhibit B of this DPA;
- The parties agree that the EU SCCs as amended in clause 7.2 above, shall be adjusted as set out below where the FDPA applies to any Restricted Transfer:
- The Swiss Federal Data Protection and Information Commissioner (“FDPIC”) shall be the sole Supervisory Authority for Restricted Transfers exclusively subject to the FDPA;
- Restricted Transfers subject to both the FDPA and the EU GDPR, shall be dealt with by the EU Supervisory Authority named in Exhibit A of this DPA;
- The term ’member state’ must not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the EU SCCs;
- Where Restricted Transfers are exclusively subject to the FDPA, all references to the GDPR in the EU SCCs are to be understood to be references to the FDPA;
- Where Restricted Transfers are subject to both the FDPA and the EU GDPR, all references to the GDPR in the EU SCCs are to be understood to be references to the FDPA insofar as the Restricted Transfers are subject to the FDPA;
- The Swiss SCCs also protect the Personal Data of legal entities until the entry into force of the revised FDPA.
- The parties agree that the UK SCCs shall apply to Restricted Transfers from the UK and the UK SCCs shall be deemed entered into (and incorporated into this DPA by reference), completed as follows:
- Appendix 1 of the UK SCCs shall be deemed completed with the information set out in Exhibit A of this DPA; and
- Appendix 2 of the UK SCCs shall be deemed completed with the information set out in Exhibit B of this DPA.
- In the event that any provision of this DPA contradicts directly or indirectly any SCCs, the provisions of the applicable SCCs shall prevail over the terms of the DPA.
- Data Subject Access Requests
- The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. The Controller acknowledges and agrees that the Processor will process the request to the extent it is lawful and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
- In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law. The Controller shall reimburse the Processor for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as applicable.
- The Processor shall make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.
- Any audit conducted under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in the Agreement. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may conduct a more extensive audit which shall be: (i) at the Controller’s expense; (ii) limited in scope to matters specific to the Controller and agreed in advance; (iii) carried out during the Processor’s usual business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iv) conducted in a way which does not interfere with the Processor’s day-to-day business.
- This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
- Personal Data Breach
- The Processor shall notify the Controller without undue delay after becoming aware of (will make all commercially reasonable efforts to notify within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Personal Data (“Personal Data Breach”).
- In the event of the Personal Data Breach, the Processor shall take all commercially reasonable measures to prevent further Personal Data Breach, to limit the effects of any Personal Data Breach, and to assist the Controller in meeting the Controller’s obligations under applicable law.
- Compliance, Cooperation and Response
- The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Controller, unless such notification is not permitted under applicable law or a relevant court order.
- The Processor may make copies of and/or retain Personal Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
- The Processor shall reasonably assist the Controller in meeting the Controller’s obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of the processing and the information available to the Processor.
- The Controller shall notify the Processor within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of the Processor. The Processor shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organisational measures to maintain compliance. If the Processor is unable to accommodate necessary changes, the Controller may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
- The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with a Supervisory Authority in the performance of their respective obligations under this DPA and Data Protection Law.
- The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
- The parties agree that the Processor shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Sub-processors to the same extent the Processor would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
- The parties agree that the Controller shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Affiliates as if such acts, omissions or negligence had been committed by the Controller itself.
- The Controller shall not be entitled to recover more than once in respect of the same loss.
- Term and Termination
- The Processor will only process Personal Data for the term of the DPA. The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement. Notwithstanding the foregoing, if the Processor continues to process Personal Data beyond the termination or expiry of the Agreement for any reason, this DPA shall continue to be in effect after the termination of the Agreement until the Processor ceases to process Personal Data on behalf of the Controller.
- Deletion and Return of Personal Data
- The Processor shall at the choice of the Controller, upon receipt of a written request received within 30 days of the end of the provision of the Services, delete or return Personal Data to the Controller. The Processor shall in any event delete all copies of Personal Data in its systems after the termination of the Agreement in accordance with the Processor’s Data Retention Policy unless: (i) applicable law or regulations require storage of the Personal Data after termination; or (ii) partial Personal Data of the Controller is stored in backups, then such Personal Data shall be deleted from backups after the effective date of termination of the Agreement in accordance with the Processor’s Data Retention Policy. Until Personal Data is deleted or returned, Processor shall continue to comply with this DPA and its Exhibits.
- This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
- Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
- Subject to any provision of the SCCs to the contrary, this DPA shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA.
- The parties agree that this DPA is incorporated into and governed by the terms of the Agreement.
List of Parties, Description of Processing and Transfer of Personal Data, Competent Supervisory Authority
MODULE TWO: CONTROLLER TO PROCESSOR
A. LIST OF PARTIES
|means the Customer|
|Address:||As set out for the Customer in the Agreement.|
|Contact person’s name, position and contact details:||As provided by the Customer in its account and used for notification and invoicing purposes.|
|Activities relevant to the data transferred under the SCCs:||Use of the Services.|
|Signature and date:||By entering into the Agreement, the Controller is deemed to have signed the SCCs incorporated into this DPA and including their Annexes, as of the Effective Date of the Agreement.|
|means the Company|
|Address:||10 John Street
|Contact person’s name, position and contact details:||Cheikh Ndove
Senior Pre-Sales Solutions Engineer [email protected]
|Activities relevant to the data transferred under the SCCs:||The provision of cloud computing solutions to the Controller under which the Processor processes Personal Data upon the instructions of the Controller in accordance with the terms of the Agreement.|
|Signature and date:||By entering into the Agreement, the Processor is deemed to have signed the SCCs, incorporated into this DPA, including their Annexes, as of the Effective Date of the Agreement.|
|Name of Representative (if applicable):||Cheikh Ndoye
Senior Pre-Sales Solutions Engineer
В. DESCRIPTION OF PROCESSING AND TRANSFERS
|Categories of Data Subjects:||Employees, agents, advisors, consultants, freelancers of the Controller (who are natural persons).
Users, Affiliates and other participants authorised by the Controller to access or use the Services in accordance with the terms of the Agreement.
Prospects, customers, clients, business partners and vendors of the Controller (who are natural persons) and individuals with whom those end users communicate with by email and/or other messaging media.
Employees or contact persons of Controller’s prospects, customers, clients, business partners and vendors.
Suppliers and service providers of the Controller.
Other individuals to the extent identifiable in the context of emails of their attachments or in archiving content.
|Categories of Personal Data:||The Controller may submit Personal Data to the Services, the extent of which is determined and controlled by the Controller. The Personal Data includes but is not limited to:
|Sensitive Data:||No sensitive data will be processed or transferred and shall not be contained in the content of or attachments to, emails.|
|The frequency of the processing and transfer (e.g. whether the data is transferred on a one-off or continuous basis):||Continuous basis for the duration of the Agreement.|
|Nature of the processing:||Processing operations include but are not limited to: ingestion, indexing, storage, and presentation of email correspondence, including attachments and metadata; transmission of outbound emails and their attachments; storing contact information via an address book; exchanging data with other systems used by the Controller through APIs; analytics based on system usage. These operations are provided to users of the Services as defined in the Agreement.|
|Purpose(s) of the data transfer and further processing:||Personal Data is transferred to sub-contractors who need to process some of the Personal Data in order to provide their services to the Processor as part of the Services provided by the Processor to the Controller.|
|The period for which the Personal Data will be retained, or, if that is not possible, the criteria used to determine that period:||Unless agreed otherwise in writing, for the duration of the Agreement, subject to clause 14 of the DPA.|
|For transfers to (Sub-) processors, also specify subject matter, nature and duration of the processing:||The Sub-processor list accessed via https://sedna.com/list-of-sub-processors sets out the Personal Data processed by each Sub-processor and the services provided by each Sub-processor.|
C. COMPETENT SUPERVISORY AUTHORITY
|Identify the competent supervisory authority/ies (e.g. in accordance with Clause 13 of the SCCs)||Where the EU GDPR applies, the Irish Data Protection Authority – the Data Protection Commission (DPC)
Where the UK GDPR applies, the UK Information Commissioner’s Office, (ICO).
Where the FDPA applies, the Swiss Federal Data Protection and Information Commissioner, (FDPIC).
MODULE THREE: PROCESSOR TO PROCESSOR
A. LIST OF PARTIES
The Data Exporter: is the Company.
The Data Importers: are the Sub-processors named in the Sub-processor list which contains the name, address, contact details and activities relevant to the data transferred to each Data Importer.
В. DESCRIPTION OF PROCESSING AND TRANSFERS
The Sub-processor list includes the information about the processing and transfers of the Personal Data, for each Data Importer:
- categories of Data Subjects
- categories of Personal Data
- the nature of the processing
- the purposes of the processing
Personal Data is processed by each Data Importer:
- on a continuous basis
- to the extent necessary to provide the Services in accordance with the Agreement and the Data Exporter’s instructions.
- for the duration of the Agreement and subject to clause 14 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
The competent Supervisory Authority of the Data Exporter shall be:
- Where the EU GDPR applies, the Irish Data Protection Authority – the Data Protection Commission (DPC).
- Where the UK GDPR applies, the UK Information Commissioner’s Office, (ICO).
- Where the FDPA applies, the Swiss Federal Data Protection and Information Commissioner, (FDPIC).
Technical and Organisational Security Measures
(Including Technical and Organisational Measures to Ensure the Security of Data)
Below is a description of the technical and organisational measures implemented by the Processor (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Full details of the Processor’s/Data Importer’s technical and organisational security measures used to protect Personal Data is available at https://sedna.com/data-processing-addendum.
Where applicable this Exhibit B will serve as Annex II to the SCCs.
|Measures of pseudonymisation and encryption of Personal Data||All data at rest, including backups, are encrypted using the AES-256 encryption algorithm. Data in transit to and from SEDNA is protected via NSB-approved communications protocols such as TLS/SSL. Inbound and outbound Email is delivered with TLS/SSL encryption when available. All encryption is performed in accordance with NIST Cryptographic Standards and Guidelines and the NIST Policy on Hash Functions. The following types of encryption may be employed, depending on the purpose:
Virtual private networks (VPNs) may also be used to assist with the protection of information, and with accessing private, authentication-required services. Amazon Web Services (AWS) Key Management Service (KMS) is employed for the management of encryption keys.
|Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services||Access to data necessary for the performance of the particular task is ensured within the systems and applications by a corresponding role and authorisation concept. In accordance to the “least privilege” and “need-to-know” principles, each role has only those rights which are necessary for the fulfilment of the task to be performed by the individual person.|
|Measures for ensuring the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident||All of the Processor’s applications are built in a High Availability configuration. Databases are subject to synchronous replication across multiple availability zones and backups of the databases are retained for a rolling period of 7 days in accordance with our backup procedures. In the event of failure of both High Availability databases, data can be restored to a third data centre.|
|Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing||The Processor maintains an ISO/IEC 27001:2013-certified Information Security Management System, subject to annual audit as well as other internal assurance exercises. In addition to automated monitoring and alerting, the Processor is subject to penetration testing by an independent third-party at least annually.|
|Measures for user identification and authorisation||The Processor supports SAML-based authentication as well as enforcing Multi-Factor Authentication. Once a user has been authenticated, authorisation is derived from the roles assigned to the user by the Controller.|
|Measures for the protection of data during transmission||Data in Transit to and from SEDNA is protected via NSB-approved communications protocols such as TLS/SSL.|
|Measures for the protection of data during storage||All data at rest, including backups, are encrypted using the AES-256 encryption algorithm.|
|Measures for ensuring physical security of locations at which Personal Data are processed||Due to their respective security requirements, business premises and facilities are subdivided into different security zones with different access authorisations. AWS data centres are subject to industry-leading controls as outlined at https://aws.amazon.com/compliance/data-center/controls/. Access for employees to office locations is only possible with an encoded ID. All other persons have access only after having registered before (e.g. at the main entrance).
The Processor also maintains a Physical and Environmental Security Policy as part of our ISO/IEC 27001:2013-certified ISMS.
|Measures for ensuring events logging||The Processor logs all events performed in the system. These events are retained in perpetuity unless destroyed in accordance with the terms of the Master Services & Subscription Agreement. These events are also exposed to the Controller via the User Interface in the form of an Activity Panel, as well as being exposed via API for logging in the Controller’s SIEM.|
|Measures for ensuring system configuration, including default configuration||The Processor’s system configuration is managed via feature flags editable only by authorized individuals. Changes to configuration beyond the default configuration are logged and monitored. System configuration is applied and maintained by software tools that ensure the system configurations do not deviate from the specifications. Deviations will be fixed automatically and reported to our ISSC.|
|Measures for internal IT and IT security governance and management||Employees are instructed to collect, process and use Personal Data only within the framework and for the purposes of their duties (e.g. service provision). At a technical level, multi-client capability includes separation of functions as well as appropriate separation of testing and production systems.
The Controller’s Personal Data is stored in a way that logically or physically separates it from other customer data as determined in the Agreement.
|Measures for certification/assurance of processes and products||The Processor is ISO/IEC 27001:2013 certified and will continue to maintain this certification for the term of the Agreement. The technical and organisational measures defined herein are implemented based on the international standard ISO/IEC 27001:2013. The Processor shall maintain controls materially as protective as those provided in the ISO 27001 and ISO 27018 or other substantially similar or equivalent certification requirements. In addition, the Processor utilises third-party Infrastructure as a Service providers that maintain current ISO 27001 certifications. The Processor will only use third party data centres that maintain the aforementioned certifications and/or attestations, or that have other substantially similar or equivalent certifications and/or attestations.
Upon the Controller’s written request (no more than once in any 12 month period), the Processor shall provide within a reasonable time, a copy of the most recently completed certification and/or attestation reports (to the extent that to do so does not prejudice the overall security of the Services). Any audit report submitted to the Controller shall be treated as Confidential Information and subject to the confidentiality provisions of the Agreement between the parties
|Measures for ensuring data minimisation||If Personal Data is no longer required for the purposes for which it was processed, it is deleted in accordance with the terms of the Agreement between the parties.|
|Measures for ensuring data quality||All of the data processed is provided by the Controller. The Processor does not assess the quality of the data provided by the Controller. The Processor provides reporting tools within its product to help the Controller understand and validate the data that is stored. The Processor also uses a combination of a firewall and malware detection software which monitors data for potential threats and blocks requests as required.|
|Measures for ensuring limited data retention||The Processor uses a data classification scheme for all data that it stores. When a record with Personal Data is deleted then it will be permanently removed from the Processor’s active databases. The data is retained in backups until they are replaced by more recent backups.|
|Measures for ensuring accountability||The Processor internally reviews its information security policies at least annually. All employees must acknowledge the information security policies. These employees are re-trained on information security policies once per year. A disciplinary policy is in place for employees that do not adhere to information security policies.|
|Measures for allowing data portability and ensuring erasure||The Processor maintains procedures and tools that allow data to be exported and provided to the Controller. Further procedures are maintained to allow the Processor to permanently delete data in accordance with the terms of the Agreement between the parties.|
|Measures to be taken by the (Sub-) processor to be able to provide assistance to the Controller (and, for transfers from a Processor to a Sub-processor, to the Data Exporter).||The transfer of Personal Data to a third party (e.g. customers, sub-contractors, service providers) is only made if a corresponding contract exists, and only for the specific purposes. If Personal Data is transferred outside the EEA, the Processor provides that an adequate level of data protection exists at the target location or organisation in accordance with the European Union’s data protection requirements, e.g. by employing contracts based on the EU SCCs.|
SERVICE LEVEL AGREEMENT
- Availability Guarantee and Objective
1.1 SEDNA’s Platform shall be available for at least 99.5 % of the time (i.e. 24 hours a day, seven days a week) computed over a calendar year (“Availability”). Specifically excluded from the calculation of Availability are:
- scheduled system maintenance to be performed by SEDNA. Customer will be provided with at least 72 hours’ notice in advance of any scheduled system maintenance;
- occurrence of a Force Majeure Event (as defined in the Agreement);
- delays or failures caused by use of equipment, software, hardware and/or services provided by Customer’s third-party vendors;
- issues arising from misuse of the Services by Customer, Customer’s employees, contractors, agents or representatives; and
- any other events that are beyond SEDNA’s reasonable control.
1.2 If SEDNA is unable to provide Customer with 99.5% Service availability, upon request to the Customer’s account manager at [email protected], SEDNA will provide Customer, with a credit for the affected Service for the difference between the actual availability of the Service and the 99.5% availability rate. The credit for Service will be shown as a deduction from the amount due from Customer to SEDNA for fees for the affected Service in the next invoice. By Customer’s use of the Service, Customer agrees that the credit is the only recourse Customer will have if Service availability falls below the 99.5% target.
1.3 SEDNA’s’ Services Availability is reported at https://status.sedna.com and is calculated based on the historical Availability over a rolling 90-day time period.
1.4 SEDNA’s objective for Availability is to maintain at least 99.9% and SEDNA makes reasonable commercial efforts to achieve that objective.
- Customer Support
2.1 SEDNA will provide Customer Support (“Support“) for the Services 24 hours a day, 365 days a year. Support is available through the following support channels (“Channels”): email ([email protected]), through SEDNA customer support portal at https://support.sedna.com and in the SEDNA application.
2.2 SEDNA provides Support through the Channels following the Customer Support Policies in the SEDNA Terms of Service available at https://www.sedna.com/terms-of-service. SEDNA may make changes to the Terms of Service from time to time without making changes to this Schedule. SEDNA will provide Customer with reasonable notice and a reasonable opportunity for comment before changes are made.