This Partner Marketing Agreement (the “Agreement”) contains the legal agreement between Qumulo, Inc. (“Qumulo”) and the party identified in the EMEA Partner Application (the “Partner”) in which this Agreement is included, regarding Partner’s acceptance as an authorized Qumulo reseller and participant in Qumulo’s Partner Program. By checking the Accept box, clicking “Accept”, or any other affirmative action of submitting the application form for consideration, you are representing to Qumulo that you are authorized to bind the Partner and are agreeing on behalf of the Partner that the terms of this Agreement, which may be updated from time to time (current version located at https://qumulo.com/resources/terms-hub/emea-partner-marketing-agreement/), shall govern the relationship of the parties with regard to resale of Qumulo products and the Partner Program. Qumulo reserves the right to limit acceptance to the Partner Program. Partner is not an authorized reseller, a member of the Partner Program and this Agreement shall not become binding until Qumulo sends Partner notice of (i) acceptance as an authorized EMEA reseller and (ii) acceptance to the Qumulo Partner Program. Such notice(s) will be sent to the email address and contact provided by the Partner in the EMEA Partner Application.
Qumulo, Inc. and the Partner enter into this Agreement as of the date that Qumulo notifies Partner that Partner has (i) authorization to resell certain Qumulo products and (ii) been approved for membership in Qumulo Partner Program (the “Effective Date”). This Agreement sets forth the terms and conditions under which Qumulo may permit Partner to (i) use certain Qumulo trademarks and (ii) market Qumulo Products, all for use solely in connection with Qumulo Products obtained by Partner under an agreement with the authorized Qumulo distributor, all as more specifically described below.
ACCORDINGLY, in consideration of the premises and obligations contained herein, it is agreed as follows:
a. “Distributor” means the Qumulo approved distributor that Partner has contracted with to purchase Products.
b. “Documentation” means technical documents, specifications, user manuals, support materials and other information describing the Products or Qumulo trademarks.
c. “Hardware” means the equipment, hardware and applicable components.
d. “EMEA Partner Application” means the application form submitted to Qumulo by Partner for consideration as as an authorized Qumulo Partner in the Territory.
e. “Partner Program” means the terms and conditions of the Qumulo Partner Program which are hereby incorporated into this Agreement, as amended from time to time.
f. “Products” means Hardware and/or Software.
g. “Services” means any technical support and maintenance services provided by Qumulo (“Support Services”) and consulting and/or installation services (“Professional Services”) as set forth on the Terms Hub.
h. “Software” means the Qumulo software, in object code, including, but not limited to, all versions of the Qumulo File Fabric (QF2) and all of its software components, including the Qumulo Core file system.
i. “Trademarks” means the marks, registered or unregistered, identified by each party and approved, in writing, for use under this Agreement.
j. “Terms Hub” means the website located at the URL: https://qumulo.com/terms-hub, and the applicable agreements and information about the Product, Services and Documentation available on the website on the date of a purchase order to Qumulo.
k. “Territory” means the countries or region Partner is authorized by Distributor to market Qumulo Products, as may be modified from time to time.
2. Representations and Restrictions
a. Partner represents and warrants that has already or is in the process of entering into an agreement with a Qumulo Distributor. Partner’s agreement with Distributor shall allow Partner to remarket the Products in the Territory. Partner agrees that Qumulo may disclose the information on the Partner Application and the terms of this Agreement to Distributor.
b. Partner will represent the Products to customers in a knowledgeable and professional manner, and will not represent any Product in a manner which is false or misleading or which may adversely affect the reputation or goodwill of Qumulo or its Products.
c. Partner shall not use sub-distributors or other third parties to market, promote, sell or otherwise distribute the Products without Qumulo’s prior written consent.
d. Partner will not, nor will Partner allow a third party to, (i) copy, modify, decrypt, disassemble, reverse compile, reverse engineer (except to the extent expressly permitted by applicable law) the Software; (ii) sub-license or rent the Software; (iii) remove any copyright or notices; (iv) disclose any performance or benchmarking results; (v) use the Products for competitive analysis or to copy any features, functions or graphics for competitive purposes; or (vi) use the Software in a manner that contradicts the license type described on the Terms Hub.
e. Partner understands and agrees that this Agreement does not authorize Partner to perform professional services (installations, support services, etc.) on behalf of Qumulo or for any Product.
f. Partner shall be entitled to certain benefits under then current Partner Program, as communicated by Qumulo from time to time, provided Partner fulfills and maintains the qualifying requirements as detailed in the then applicable Partner Program. Partner agrees to use good faith and reasonable efforts to satisfy the Partner Program requirements. Partner benefits and requirements may change at Qumulo’s sole discretion based upon corporate-wide programmatic changes in Qumulo’s channel programs.
g. Partner acknowledges and agrees that it will represent to end users that all Qumulo Products are governed by the terms and conditions located on the Terms Hub.
3. Trademark & Logo:
a. During the Term of this Agreement and subject to the other party’s approval, each party hereby grants to the other party a nonexclusive license to use and display each other’s Trademarks solely in connection with the rights granted in this Agreement and any advertising or other promotional activities relating thereto. Partner’s use of Qumulo Trademarks shall be limited to use within the Territory. Any use of a party’s Trademark for advertising or promotional purposes must be approved by the party. Neither party shall use the other’s Trademarks in a way which would cause any person reasonably to infer or would otherwise convey the impression that the parties are in any way affiliated with or otherwise acting on behalf of each other. The parties acknowledge that every use of the other party’s Trademarks shall inure to the benefit of the other party and that the provisions of this paragraph do not convey to a party any right, title or ownership interest in the other party’s Trademarks. Neither party shall take any action or a lack of action which would in any way impair the other party’s proprietary rights. Neither party shall use any Trademarks of the other in a corporate name or product line, or have or acquire any right, title or interest in or otherwise become entitled to use any such Trademark, either alone or in conjunction with other words or names, or in the goodwill thereof, without the express written consent of the other in each instance. Partner will not remove any trade name, trademark or other attributing mark or designation which Qumulo may place on any Product, and will fully and fairly attribute the origin of the Products. Upon written request, either party will promptly remove any displayed Trademarks of the other party and such party shall cease from distributing or publishing the Trademarks.
4. Term and Termination.
a. Term. The initial term of this Agreement will be for one (1) year and will automatically renew for successive one-year terms, unless this Agreement is terminated earlier as provided herein.
b. Termination at Will. Either party may terminate this Agreement at any time with at least thirty (30) days prior written notice to the other party.
c. This Agreement shall automatically terminate if Partner ceases to have a valid agreement with an authorized Qumulo distributor.
d. Upon termination of this Agreement, any rights granted under this Agreement for use of a trademark or other intellectual property right shall terminate completely and both parties shall discontinue any use with 72 hours of termination.
e. Survival. All provisions of this Agreement will survive any termination or expiration if by its nature and context it is intended to survive.
QUMULO PROVIDES ACCESS TO THE QUMULO PARTNER PORTAL WEBSITE AND DOCUMENTATION ON AN “AS IS” BASIS AND MAKES NO OTHER EXPRESS WARRANTIES OR CONDITIONS, WRITTEN OR OTHERWISE OF ANY QUMULO TRADEMARK, DOCUMENTATION, OTHER INTELLECTUAL PROPERTY RIGHT LICENSED UNDER, OR IN CONNECTION WITH THIS AGREEMENT, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY AND/OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY OR CONDITION ARISING BY STATURE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOREOVER, ALL CLAIMS FOR LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE/PROFIT, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, SHALL BE DEEMED INDIRECT DAMAGES AND NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY FOR SUCH DAMAGES ARISING OUT OF OR IN CONECTION WITH PRODUCTS, SUPPORT SERVICES, PROFESSIONAL SERVICES OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Partner Indemnity
a. Partner shall indemnify, defend and hold harmless Qumulo from and against all claims, suits, damages, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees and costs) which arise out of, relate to or result from any act or omission of Partner.
7. Logo Infringement
a. Qumulo shall, at its expense, defend any suit brought by a third party against Partner based upon a claim that Qumulo’s Trademark infringes trademark rights in the Territory, and will pay costs and damages finally awarded against Partner that are directly attributable to any such claim, but only on condition that (a) Qumulo is notified promptly in writing of such claim by Partner, (b) Qumulo has sole control of the defense and settlement negotiations and Partner makes no admissions or takes any action that may compromise any of Qumulo’s rights and options in any such suit, (c) Partner provides Qumulo all information and communications received by Partner concerning such claim, and (d) Partner provides reasonable assistance to Qumulo when requested. Should Qumulo become aware of, or reasonably believe, the Trademarks may be subject to an infringement claim, Qumulo will have the right, at its option and expense, (i) to obtain for Partner the rights to use the Trademark, (ii) to replace or modify the Trademark so it becomes non-infringing, or (iii) if (i) and (ii) are not commercially reasonable, terminate the Trademark license.
b. THE FOREGOING STATES THE EXCLUSIVE LIABILITY OF QUMULO TO PARTNER CONCERNING INFRINGEMENT.
8. Confidentiality & Data Protection
a. “Confidential Information” means nonpublic information that either party discloses, or has disclosed, to the other which is designated as being confidential or proprietary, or which is of a nature or presented under circumstances that would cause one to reasonably conclude it should be treated as confidential. “Confidential Information” includes, without limitation, information relating to either party’s inventions, intellectual property, research, testing results, released or unreleased products or services, marketing or promotion of any products or service, customers, suppliers, contracts, business plans, and policies and practices. Confidential Information will not include any information that: (i) is or subsequently becomes publicly available without breach of any obligation of confidentiality by the receiving party; (ii) became rightfully known to the receiving party prior to disclosure of such information by the disclosing party; (iii) became known to the receiving party from a source other than the disclosing party hereunder, other than by breach of an obligation of confidentiality owed to the disclosing party; or (iv) is independently developed by the receiving party without the use of any Confidential Information received from the disclosing party. Neither party will disclose the Confidential Information of the other party to any third party except to its directors, employees, contractors, or consultants to the extent necessary to carry out the purposes of this Agreement, provided that all such recipients are obligated by a written agreement of confidentiality which is substantially the same as that described herein. Each party will protect Confidential Information from unauthorized disclosure in the same manner they use to protect their own proprietary information, and at least a reasonable degree of care. Each party may use the Confidential Information of the other party solely for performing its obligations or exercising its rights under this Agreement. Each party may disclose Confidential Information to the extent required by judicial or governmental order or as necessary to comply with any applicable law or regulation, provided that the party making the disclosure gives the other party reasonable notice prior to such disclosure. Each party will promptly return, or destroy, all Confidential Information at the other party’s request or upon termination. Each party acknowledges that monetary damages may not be a sufficient remedy for the unauthorized disclosure of Confidential information of the other party, and the disclosing party may be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
b. The parties shall comply with the data protection obligations set out in Schedule 1.
9. Business Conduct
a. Anti-Bribery Laws. Partner will comply with applicable laws in selling the Products including but not limited to (i) all export and import restrictions imposed by U.S. law and the laws of the country of import, and (ii) the United States Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act of 2010 (the “UKBA”) (and any other similar laws in other jurisdictions (“Anti-Bribery Laws”). Partner, including but not limited to its officers, directors, employees, agents or subsidiaries, agrees to not violate or knowingly let anyone violate the Anti-Bribery Laws in connection with this Agreement.
b. No Anti-Competitive Practices. Partner is not aware of, has not participated in and will not participate in any business arrangements or deal allocation arrangement that could restrict free trading and competition between Qumulo partners or practices that restrict free trading or lead to promotion of monopolistic or anti-competitive business practices to the detriment of Qumulo’s customers.
10. Export Controls.
a. The Products are subject to US governmental restrictions on exports and imports and Partner agrees to comply with the Export Administration Act, the Export Control Act, all regulations promulgated under such Acts, and all other US government regulations relating to the export of technical data and equipment and products produced therefrom, which are applicable to Partner and the Products. In countries other than the US, Partner agrees to comply with the local regulations regarding importing, exporting or using cryptographic software. Partner shall comply, at its sole expense, with all applicable trade laws, including without limitation all licensing, authorization, documentation and reporting requirements relating to Partner’s import, use or export of the Products or derivative products thereof.
11. Choice of Law and Venue
a. This Agreement, and all non-contractual disputes arising out of or in connection with it, shall be governed by English law. The United Nations Convention on the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction of the High Court in London for resolution of any disputes arising out of this Agreement.
12. Governing Language
a. The parties acknowledge that this Agreement has been negotiated and executed by the parties in English. The official text of this Agreement shall be the English language, and any interpretation or construction of this Agreement shall be based thereon. If this Agreement or any documents or notices relating to it are translated into another language the English version shall be controlling in the event of discrepancy between the two.
a. Compliance. Partner shall comply with any and all applicable regulations, standards and such other requirements as are or may be promulgated by authorized governmental authorities and required with respect to Partner’s business and Partner’s obligations with respect to the Products and Qumulo, including obtaining all necessary licenses, permits and approvals as may be required.
b. Severability. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in meaning to the original as possible.
c. Entire Agreement. This Agreement, and those additional terms referenced within, constitute the entire agreement between the parties regarding its subject matter. No modification will be binding unless in writing and signed by the parties.
d. Assignment. This Agreement and any rights or obligations of Partner under it may not be assigned, subcontracted or otherwise transferred by Partner, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation (except where the successor is not a competitor of Qumulo and agrees to be bound by all the terms and conditions of this Agreement, in which case Qumulo’s consent shall not be required), without the prior written consent of Qumulo, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
e. Waiver. Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.
f. Independent Contractors. The relationship of Qumulo and Partner established by this Agreement is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority.
g. Force Majeure. Neither party will incur any liability to the other party because any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, natural disaster, fire and explosions, or any other events reasonably beyond the control of either party, but the inability to meet financial obligations is expressly excluded.
Schedule 1 – Data Protection
For the purposes of this Schedule, the terms controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organizational measures have the meanings set out in the Data Protection Legislation in force at the time.
Agreed Purposes: the transfer to Qumulo by the Partner of information relating to prospective customers of the Partner and/or Qumulo.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Permitted Recipients: The parties to this agreement, the employees of each party, and distributor necessary to process any orders.
Shared Personal Data: the personal data to be shared between the parties under clause 1.1 of this Schedule. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
• corporate name of prospective customer;
• corporate address and location information;
• details of the Products of interest to the prospective customer;
• name and role of individual at prospective customer with whom Partner has entered discussions in relation to the Products; and
• corporate telephone number, corporate email address, and corporate mailing address of individual at prospective customer.
1. DATA PROTECTION
1.1 Shared Personal Data. This Schedule sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that Partner (the Data Discloser) will regularly disclose to Qumulo (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
1.2 Effect of non-compliance with Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
1.3 Particular obligations relating to data sharing. Each party shall:
(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes and Partner shall ensure that all data subjects expressly and unambiguously consent to the transfer and disclosure of his/her personal data to Qumulo and the Permitted Recipients in any location worldwide;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement; and
(f) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the other party, to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
1.4 Transfers outside the EEA. The parties agree to comply with the terms of Appendix 1 in relation to any transfers from the Data Disclosure to Qumulo under this Agreement.
1.5 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall: (a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data; (b) promptly inform the other party about the receipt of any data subject access request; (c) provide the other party with reasonable assistance in complying with any data subject access request; (d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible; (e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation; (g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data; (h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers; (i) maintain complete and accurate records and information to demonstrate its compliance with this Schedule and allow for audits by the other party or the other party’s designated auditor; and (j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
1.6 Indemnity. Partner shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Qumulo, its officers, employees, representatives and agents arising out of or in connection with the breach of the Data Protection Legislation by Partner, its employees or agents, provided that Qumulo gives to Partner of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
APPENDIX 1 – STANDARD CONTRACTUAL CLUASES CONTROLLER TO CONTROLLER
For the purposes of this Appendix 1:
(a) the data exporter shall mean the controller who transfers the personal data;
(b) the data importer shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection; ad
(c) clauses shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
2. OBLIGATIONS OF THE DATA EXPORTER
The data exporter warrants and undertakes that: (a) the personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter, (b) it has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses, (c) it will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established, (d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time, (e) it will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under Clause 3, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
3. OBLIGATIONS OF THE DATA IMPORTER
The data importer warrants and undertakes that: (a) it will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected, (b) it will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to the personal data, (c) it has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws, (d) it will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses, (e) it will identify to the data exporter a contact point within its organization authorized to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of Clause 1(e), (f) at the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under Clause 3(which may include insurance coverage), (g) upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion, and (h) it will process the personal data, at its option, in accordance with: (i) the data processing principles set forth in Annex A.
The data importer will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and (i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or (ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or (iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or (iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
4. LIABILITY AND THIRD PARTY RIGHTS
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses Clause 1(b), Clause 1(d), Clause 1(e), Clause 2(a), Clause 2(c), Clause 2(d), Clause 2(e), Clause 2(h), Clause 2(i), Clause 3(a), Clause 5, Clause 6(d)and Clause 7 against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
5. LAW APPLICABLE TO THE CLAUSES
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under Clause 2(h) which shall apply only if so selected by the data importer under that clause.
6. RESOLUTION OF DISPUTES WITH DATA SUBJECTS OR THE AUTHORITY
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that (i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to Clause 6(a); (ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import; (iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses; (iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or (v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs, then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by Clause 6.1(b)(i), Clause 6.1(b)(ii), or Clause 6.1(b)(iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if:
(i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or
(ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under Clause 6(c) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
8. VARIATION OF THESE CLAUSES
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
9. DESCRIPTION OF THE TRANSFER
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under Clause 1(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
DATA PROCESSING PRINCIPLES
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorized by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organizational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organizations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organization may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under Clause 2.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) such decisions are made by the data importer in entering into or performing a contract with the data subject, and
(ii) (the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.
(b) where otherwise provided by the law of the data exporter.
DESCRIPTION OF THE TRANSFER
Prospective corporate customers of Qumulo and Partner.
The personal data transferred concern the following categories of data subjects:
Individual’s corporate contact information of the prospective corporate customers.
Contact points for data protection enquiries
Partner: Partner contact information located in Partner Application
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