ALLSEATED EXVO SERVICE AGREEMENT
This AllSeated exVo Service Agreement (this “Agreement”) together with the applicable “Order Form” (which incorporates this Agreement by reference) governs the provision of AllSeated, Inc.’s (“AllSeated”) exVo Service (defined below) to you the named customer in the applicable Order Form (“Customer”). In the event of an inconsistency between this Service Agreement and the Order Form, this Service Agreement will govern and control. AllSeated and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
(a) “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its End Users’ Use of the exVo Service, including, without limitation, any usage data or trends with respect to the exVo Service.
(b) “AllSeated IP” means the exVo Service, the underlying software provided in conjunction with the exVo Service, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the , Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(c) “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the exVo Service or to AllSeated in connection with Customer’s Use of the exVo Service, but excluding, for clarity, Aggregate Data and any other information, data, content or materials owned or controlled by AllSeated and made available through or in connection with the exVo Service.
(d) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by AllSeated to Customer (including any revised versions thereof) relating to the exVo Service, which may be updated from time to time upon notice to Customer.
(e) “Effective Date” means the date reflected in the applicable Order Form.
(f) “End User” means a Host or Participant.
(g) “Event” means a corporate event, convention, conference or any other event that is hosted by Customer on the exVo Service, such as a corporate meeting or a trade show.
(h) “exVo Service” means AllSeated’s cloud-based proprietary virtual event hosting platform and related services branded “AllSeated exVo”, as more particularly described or identified in the applicable Order Form
(i) “Host” means an individual who is an identified employee, contractor, or representative of Customer to whom Customer assigns the right to manage an Event and Use the exVo Service.
(j) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(k) “Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Events that may be hosted on the exVo Service or number of Participants of an Event based on Customer’s subscription tier.
(l) “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by AllSeated in writing; or (iii) quote issued by AllSeated and accepted by Customer, in each case which references this Agreement and sets forth the applicable exVo Service to be provided by AllSeated.
(m) “Participant” means an individual, other than the Host, or an entity that Customer has authorized or invited to Use the exVo Service as a participant or guest of an Event.
(n) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
(o) “Professional Services” means the implementation and/or other professional services, if any, to be provided by AllSeated to Customer as set forth in the relevant Order Form.
(p) “Use” means to use and access the exVo Service in accordance with this Agreement and the Documentation.
2. SUBSCRIPTION SERVICES; ACCESS AND USE.
(a) exVo Service. Subject to the terms and conditions of this Agreement, AllSeated hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to Use the exVo Service during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
(b) Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, End Users) to, directly or indirectly: (i) Use the exVo Service in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the exVo Service or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the exVo Service, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the exVo Service to any other Person, or otherwise allow any Person to Use the exVo Service for any purpose other than for the benefit of Customer in accordance with this Agreement, unless Customer has been specifically permitted to do so under a separate agreement with AllSeated.; (v) Use the exVo Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the exVo Service, or any data or content contained therein or transmitted thereby; or (vii) access or search the exVo Service (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or exVo Service features provided by AllSeated for use expressly for such purposes; or (viii) Use the exVo Service, Documentation or any other AllSeated Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the exVo Service.
(c) End Users. Customer will not allow any Person other than End Users to Use the exVo Service. Customer may permit End Users to Use the exVo Service, provided that (i) the Use, including the number of End Users, does not exceed the Licensed Volume; and (ii) Customer ensures that all End Users comply with the Exvo End User Terms
(found at https://www.allseated.com/exvo/tou
, which may be updated from time to time) (the “User Terms”) and the terms and conditions of this Agreement, including, without limitation, Customer’s obligations and the restrictions set forth in Section 2(b). Company may suspend or terminate any End User’s access to the exVo Service upon notice to Customer in the event that Company reasonably determines that such End User has violated the User Terms or this Agreement. Customer is responsible for all acts or omissions by its End Users in connection with their Use of the exVo Service.
(d) Third-Party Services. Certain features and functionalities within the exVo Service may allow Customer and its End Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the exVo Service. AllSeated does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the exVo Service or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the exVo Service.
(e) Reservation of Rights. Subject to the limited rights expressly granted hereunder, AllSeated reserves and, as between the Parties will solely own, the AllSeated IP and all rights, title and interest in and to the AllSeated IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(f) Feedback. From time-to-time Customer or its employees, contractors, or representatives may provide AllSeated with suggestions, comments, feedback or the like with regard to the exVo Service (collectively, “Feedback”). Customer hereby grants AllSeated a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with AllSeated’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the exVo Service.
(g) System Requirements. Customer acknowledges and agrees that Customer’s and its End Users’ use of the exVo Service is dependent upon access to Internet services and use of compatible devices and software. As between Customer and AllSeated, Customer shall be solely responsible for acquiring and maintaining all Internet services, hardware and software required to access and use the exVo Service, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. AllSeated will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such Internet services, hardware or software.
FEES AND PAYMENT.
(g) Fees. Customer will pay AllSeated the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. If Customer has signed up for automatic billing in the applicable Order Form, AllSeated will charge Customer’s selected payment method (such as a credit card or debit card) for any Fees on the applicable payment date, including any applicable taxes. If AllSeated cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and AllSeated will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, AllSeated may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
(h) Payments. Payments due to AllSeated under this Agreement must be made in U.S. dollars (unless otherwise agreed on) by check, wire transfer of immediately available funds to an account designated by AllSeated or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and AllSeated may suspend access to the exVo Service, as applicable, until all payments are made in full. Customer will reimburse AllSeated for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
(i) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to AllSeated hereunder, other than any taxes imposed on AllSeated’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to AllSeated hereunder, Customer will pay an additional amount, so that AllSeated receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
3. CONFIDENTIAL INFORMATION.
(a) As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the exVo Service and the Documentation will be deemed Confidential Information of AllSeated. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
(b) The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that AllSeated may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(c) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(d) The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
AllSeated will provide reasonable technical support to Customer for the exVo Services via live chat functionality in connection with the Use of the exVo Service on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Eastern Time, with the exception of U.S. federal holidays (“Support Hours”), subject to Customer’s will reasonable cooperation with AllSeated support staff as needed to resolve the issue.
5. CUSTOMER MATERIALS AND DATA.
(a) AllSeated acknowledges that, as between Customer and AllSeated and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
(b) Customer hereby grants AllSeated a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the exVo Service and AllSeated’s other related products, services and technologies during the Term.
(d) To the extent Customer Materials are “personal data” or “personal information” under applicable data protection laws, the parties agree to comply with the Data Processing Addendum attached hereto as Exhibit A.
6. REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party
(a) AllSeated Indemnification. Subject to Section 8(b), AllSeated will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the exVo Service infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by AllSeated (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. AllSeated’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the exVo Service that have been provided by AllSeated; (iv) modifications to the exVo Service by anyone other than AllSeated; or (v) combinations of the exVo Service with software, data or materials not provided or approved by AllSeated.
(c) IP Remedies. If AllSeated reasonably believes the exVo Service (or any component thereof) could infringe any third party’s Intellectual Property Rights, AllSeated may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the exVo Service, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If AllSeated determines that neither alternative is commercially practicable, AllSeated may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, AllSeated will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the exVo Service.
(d) Customer Indemnification. Subject to Section 8(e), Customer will defend AllSeated against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the exVo Service by Customer or its End Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless AllSeated against any damages and costs awarded against AllSeated or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. WARRANTY; DISCLAIMER.
AllSeated warrants that Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Customer’s sole and exclusive remedy and AllSeated’s entire liability for any breach of the foregoing warranty, AllSeated will promptly re-perform any Professional Services that fail to meet this limited warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES AND OTHER ALLSEATED IP ARE PROVIDED ON AN “AS IS” BASIS, AND ALLSEATED MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS END USERS OR TO ANY OTHER PARTY REGARDING THE ALLSEATED IP, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALLSEATED HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ALLSEATED HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
9. LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ALLSEATED IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability. IN NO EVENT WILL ALLSEATED’S TOTAL LIABILITY TO CUSTOMER OR ITS END USERS IN CONNECTION WITH THIS AGREEMENT, THE ALLSEATED IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ALLSEATED IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ALLSEATED WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN ALLSEATED AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
10. TERM AND TERMINATION.
(a) Term. The Agreement will be in effect for the term specified in the Order Form (“Term”).
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(c) Survival. This Section 11(c) and Sections 1, 2(b), 2(c), 2(f), 3, 4, 6, 7, 8, 9, 10, 11(d) and 13 survive any termination or expiration of this Agreement.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at AllSeated’s sole option, all AllSeated Confidential Information in its possession or control, including permanent removal of such AllSeated Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at AllSeated’s request, certify in writing to AllSeated that the AllSeated Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
Customer hereby grants AllSeated a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the exVo Service; and (ii) AllSeated’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of AllSeated and case studies. All goodwill and improved reputation generated by AllSeated’s use of the Customer Marks inures to the exclusive benefit of Customer. AllSeated will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
(a) Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(b) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 13(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
(c) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(d) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco County, California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(f) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(g) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(h) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(i) Subcontracting. AllSeated may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that the AllSeated remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. Databank/Azure), AllSeated will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of AllSeated.
(j) Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the exVo Service or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(k) U.S. Government End Users. The exVo Service, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
(l) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(m) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
EXHIBIT A – DATA PROCESSING ADDENDUM
This Data Processing Addendum (“Addendum”) forms part of the exVo Service Agreement (the “Agreement”) between AllSeated, Inc. (“AllSeated”) and named customer in the Order Form(“Customer”). Capitalized terms not defined in this Addendum have the meaning given in the Agreement.
1. Subject Matter and Duration.
a) Subject Matter. This Addendum reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with AllSeated’s execution of the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum or any of its Exhibits conflicts with the Agreement, this Addendum shall control.
b) Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement. AllSeated will Process Customer Personal Data until the relationship terminates as specified in the Agreement.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
a) “Customer Personal Data” means Personal Data Processed by AllSeated on behalf of Customer.
b) “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. “Data Protection Laws” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) and the EU General Data Protection Regulation 2016/679 (“GDPR”).
c) “Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws.
d) “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated 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.
e) “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to AllSeated.
f) “Services” means the services that AllSeated performs under the Agreement.
g) “Subprocessor(s)” means AllSeated’s authorized vendors and third party AllSeateds that Process Customer Personal Data.
3. Data Use and Processing.
a) Documented Instructions. AllSeated shall Process Customer Personal Data to provide the Services in accordance with the Agreement, this Addendum, any applicable Statement of Work, and any instructions agreed upon by the parties. AllSeated will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
b) Authorization to Use Subprocessors. To the extent necessary to fulfill AllSeated’s contractual obligations under the Agreement, Customer hereby authorizes AllSeated to engage Subprocessors.
c) AllSeated and Subprocessor Compliance. AllSeated agrees to (i) enter into a written agreement with Subprocessors regarding such Subprocessors’ Processing of Customer Personal Data that imposes on such Subprocessors data protection requirements for Customer Personal Data that are consistent with this Addendum; and (ii) remain responsible to Customer for AllSeated’s Subprocessors’ failure to perform their obligations with respect to the Processing of Customer Personal Data.
d) Right to Object to Subprocessors. Where required by Data Protection Laws, AllSeated will notify Customer via email prior to engaging any new Subprocessors that Process Customer Personal Data and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new Subprocessor, the parties will work together in good faith to resolve the grounds for the objection.
e) Confidentiality. Any person authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
f) Personal Data Inquiries and Requests. Where required by Data Protection Laws, AllSeated agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws.
g) Sale of Customer Personal Data Prohibited. AllSeated shall not sell Customer Personal Data as the term "sell" is defined by the CCPA.
h) Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, AllSeated agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgement, the type of Processing performed by AllSeated requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
i) Demonstrable Compliance. AllSeated agrees to provide information reasonably necessary to demonstrate compliance with this Addendum upon Customer’s reasonable request.
j) Limitation on Disclosure of Customer Personal Data. To the extent legally permitted, AllSeated shall: (i) promptly notify Customer’s Designated POC in writing upon receipt of an order, demand, or document purporting to request, demand or compel the production of Customer Personal Data to any third party, including, but not limited to the United States government for surveillance and/or other purposes; and (ii) not disclose Customer Personal Data to the third party without providing Customer at least forty-eight (48) hours’ notice, so that Customer may, at its own expense, exercise such rights as it may have under applicable laws to prevent or limit such disclosure.
k) [Service Optimization. Where permitted by Data Protection Laws, AllSeated may Process Customer Personal Data: (i) for its internal uses to build or improve the quality of its services; (ii) to detect Security Incidents; and (iii) to protect against fraudulent or illegal activity.]
l) Aggregation and De-Identification. AllSeated may: (i) compile aggregated and/or de-identified information in connection with providing the Services provided that such information cannot reasonably be used to identify Customer or any data subject to whom Customer Personal Data relates (“Aggregated and/or De-Identified Data”); and (ii) use Aggregated and/or De-Identified Data for its lawful business purposes.
4. Cross-Border Transfers of Personal Data.
a) Cross-Border Transfers of Personal Data. Customer authorizes AllSeated and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
b) Standard Contractual Clauses. If Customer Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to AllSeated in a country that has not been found to provide an adequate level of protection under Data Protection Laws, the parties agree that the terms of the transfer shall be governed by the Standard Contractual Clauses attached hereto as Exhibit A. The parties agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with Section 7 of this Addendum; (ii) pursuant to Clause 5(h) and Clause 11 of the Standard Contractual Clauses, AllSeated may engage new Subprocessors in accordance with Section 3(b) – (d) of this Addendum; and (iii) the Subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s written request. Each party’s signature to the Agreement shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
5. Information Security Program.
a) Security Measures. AllSeated will use commercially reasonable efforts to implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data.
6. Security Incidents.
a) Notice. Upon becoming aware of a Security Incident, AllSeated agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer’s Designated POC. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
a) Customer Audit. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may carry out an audit of AllSeated’s policies, procedures, and records relevant to the Processing of Customer Personal Data. Any audit must be: (i) conducted during AllSeated’s regular business hours; (ii) with reasonable advance notice to AllSeated; (iii) carried out in a manner that prevents unnecessary disruption to AllSeated’s operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit shall be limited to once per year, unless an audit is carried out at the direction of a government authority having proper jurisdiction.
8. Data Deletion.
a) Data Deletion. At the expiry or termination of the Agreement, AllSeated will, at Customer’s option, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with AllSeated’s data retention schedule), except where AllSeated is required to retain copies under applicable laws, in which case AllSeated will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
9. Processing Details.
a) Subject Matter. The subject matter of the Processing is the Services pursuant to the Agreement.
b) Duration. The Processing will continue until the expiration or termination of the Agreement.
c) Categories of Data Subjects. Data subjects whose Customer Personal Data will be Processed pursuant to the Agreement.
d) Nature and Purpose of the Processing. The purpose of the Processing of Customer Personal Data by AllSeated is the performance of the Services.
e) Types of Customer Personal Data. Customer Personal Data that is Processed pursuant to the Agreement.
10. Contact Information.
a) Customer and AllSeated agree to designate a point of contact for urgent privacy and security issues (a “Designated POC”). The Designated POC for both parties are:
· Customer Designated POC:
· AllSeated Designated POC:
Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Name of the data exporting organisation: Customer (as defined in the Addendum).
(the data exporter)
Name of the data importing organisation: AllSeated (as defined in the Addendum).
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is: Customer.
The data importer is: AllSeated.
The personal data transferred concern the following categories of data subjects: As set forth in Section 9(c) of the Addendum.
Categories of data
The personal data transferred concern the following categories of data: As set forth in Section 9(e) of the Addendum.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: As set forth in Section 9(e) of the Addendum.
The personal data transferred will be subject to the following basic processing activities: Processing to carry out the Services pursuant to the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
AllSeated will use commercially reasonable efforts to implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data in accordance with the Addendum.