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Legal

EU Data Act Addendum

Last revised:

Preamble

This EU Data Act Addendum ("Addendum") forms part of the Vivantio Master Contract for the Supply of Service Agreement ("Agreement") and applies where Customer is based in the European Union or European Economic Area and the Service qualifies as a "data processing service" as defined in the EU Data Act (Regulation (EU) 2023/2854) ("EU Data Act"). Capitalised terms used but not defined in this Addendum have the meanings given to them in the Agreement.

1. Switching and Deletion Rights

At any time during Customer's subscription term and subject to Paragraph 3 of this Addendum, Customer may request that the Company, in relation to any Service that qualifies as a "data processing service" as defined in the EU Data Act:

  1. provide any "Exportable Data" and "Digital Assets" (each as defined in Appendix 1) in a structured, commonly used and machine-readable format to: (i) another service provider offering the same type of service as the Service; or (ii) Customer's on-premise IT infrastructure (a "Switching Request"); and/or
  2. delete Exportable Data and Digital Assets from the Service (a "Deletion Request").

Customer must submit any Switching Request or Deletion Request to the Company in writing at least two (2) months in advance of the date on which Customer requests the switch or deletion process to take effect (the "Switching Date"), specifying the Switching Date, the affected Service and whether Customer intends to (i) switch to another service provider (including details of the provider), (ii) switch to on-premises IT infrastructure, or (iii) request deletion. Customer may request a one-time extension of the Switching Date, provided it falls no later than seven (7) months from the date of the Switching Request or Deletion Request.

If Customer submits a Deletion Request, the Company will complete the request by the Switching Date, in accordance with the Company's standard deletion procedures and applicable law. The Company may retain aggregated or anonymised data that no longer identifies Customer.

If Customer submits a Switching Request, the Company will use reasonable efforts to complete the Switching Request within thirty (30) calendar days following the Switching Date. Where the Switching Request is complex, the Company may extend this period by a further 30 days, provided that the Company notifies Customer of such extension and the reasons for the delay. Until completion of the export of Exportable Data, the Company will use reasonable efforts to ensure that the Company: (i) acts with due care to maintain business continuity and continue the provision of the Service in accordance with these Terms; (ii) informs Customer of any known risks to continuity; (iii) ensures an appropriate level of security during the transfer; and (iv) supports Customer's switching strategy, including by providing requested technical, procedural and contractual information. The Company will make the Exportable Data and Digital Assets available for Customer's retrieval for at least thirty (30) calendar days following completion of the export. Once the Switching Request is completed, and unless otherwise agreed, the Company will delete the Exportable Data and Digital Assets in accordance with the Company's standard deletion procedures and applicable law.

The Agreement will automatically terminate as it relates to the affected Service upon completion of the Switching Request or Deletion Request (the "Termination Date"). Within 10 days of the Termination Date, Customer must pay any outstanding Fees covering the remainder of the Term of the relevant Order Form(s) as an early termination fee. The Company will notify Customer when the Agreement is deemed terminated for the purposes of the affected Service between the parties under this Paragraph. Termination does not relieve Customer of its obligation to pay any Fees due for the period before the Termination Date.

No fees will be charged for Switching Requests or Deletion Requests, except where a Switching Request requires significant manual intervention or customization, in which case the Company may charge reasonable fees upon prior written notice to, and agreement with, Customer.

2. ICT Infrastructure and Security

Information regarding the jurisdictions in which the Company's ICT infrastructure is located and safeguards implemented by the Company to prevent unlawful access to non-personal data is available on request or as may be updated on the Company's website from time to time.

3. Exclusions

This Addendum does not apply to any beta, sandbox or non-production services, or to any highly customised services the Company offers to Customer that are not available as part of the Company's standard service catalogue, or to Excluded Data (as defined in Appendix 1).

Customer is responsible for ensuring that it has all necessary rights, authorizations and consents to request the export or deletion of Exportable Data or Digital Assets, and for notifying the Company once the export has been successfully completed in accordance with this Addendum. Customer assumes responsibility for securing and transferring Exportable Data or Digital Assets following export.

4. Customer Indemnity

Customer will indemnify, hold harmless and defend the Company and its affiliates against any claim made or brought against the Company by a third party (including Customer's affiliates, users or other affected parties) arising from or in connection with Customer's Switching Request or Deletion Request, including any claim alleging that such request infringes another party's rights or was made without proper authority, and Customer will indemnify the Company for any losses or damages finally awarded against the Company (or any settlement approved by Customer) in connection with any such claim, provided that: (a) the Company will promptly notify Customer of such claim; (b) Customer will have the sole and exclusive authority to defend and/or settle any such claim (provided that Customer may not settle any claim without the Company's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases the Company of all liability); and (c) the Company reasonably cooperates with Customer in connection therewith. This indemnity does not apply to the extent the claim arises from the Company's breach of the Agreement.

Appendix 1 — Data Categories Subject to Switching and Deletion Under EU Data Act

Exportable Data

For the purposes of the Service, the following categories of data are classified as Exportable Data and are subject to the switching and deletion rights under the EU Data Act:

  • Ticket and case data, including all associated history and notes
  • Client and contact records entered into the Service by Customer
  • Knowledge base articles and content created by Customer
  • Asset records and configuration management data entered by Customer
  • Files and attachments uploaded by Customer or its users to any object within the Service
  • Emails and data ingested into the Service via Customer-configured integrations

Digital Assets

For the purposes of the Service, the following categories of data are classified as Digital Assets and are subject to the switching and deletion rights under the EU Data Act:

  • Files, attachments, images and media uploaded by Customer to the Knowledge Base within the Service, including content made available to Customer's end users via the Self Service Portal

Excluded Data

For the purposes of the Service, the following categories of data are classified as Excluded Data and are not subject to the switching and deletion rights under the EU Data Act:

  • System configuration, workflow configuration, automation rules, and all other platform setup and configuration data
  • Vivantio's underlying platform code, software, and architecture
  • Any data owned by Vivantio including proprietary product data and platform content
  • Internal performance metrics, system logs, and operational data generated by Vivantio in connection with its provision of the Service
  • Anonymised or aggregated usage data generated by Vivantio that does not identify Customer
  • Any data that Customer does not have the legal right to export or transfer