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ORBITERA WEB SERVICES
1.1 “Authorized Users” means employees and individual contractors (e.g., temporary employees) of an Orbitera Customer that have been authorized by the Orbitera Customer to access the Orbitera Web Services via the Platform.
1.2 “Documentation” means the user manuals supplied in connection with licensed Software relating to the installation, use and administration of the Software.
1.3 “Orbitera” means Orbitera Inc., a Delaware corporation.
1.4 “Orbitera Customer” means the customer of Orbitera that has authorized you to use the Orbitera Web Services as an Authorized User of such Orbitera customer.
1.5 “Orbitera Customer Agreement” means the agreement between Orbitera and an Orbitera Customer permitting such Orbitera Customer to use the Orbitera Web Services via the Platform and to authorize Authorized Users to use the Orbitera Web Services.
1.6 “Orbitera Web Services” or “Software” means the online customer portal software made available via the Platform as an online service by Orbitera to Orbitera customers.
1.7 “Platform” means the combination of servers and client software used to deliver the Software.
2. Access to Orbitera Web Services.
2.1 Access Rights. Subject to the terms and conditions of this Agreement, Orbitera grants you the non-exclusive right to access and use the Orbitera Web Services solely on the Platform, in the manner and for the purposes described in the Documentation, solely during the period, and to the extent, that the Orbitera Customer is authorized to use and authorize Authorized Users to use the Orbitera Web Services on the Platform under the terms of the Orbitera Customer Agreement.
2.2 Limitations. You represent and warrant that you are an Authorized User under a currently valid and effective Orbitera Customer Agreement, and you agree and acknowledge that your use of the Software is subject to all applicable limitations contained in such Orbitera Customer Agreement. It is your responsibility to inquire with the Orbitera Customer as to any such limitations which apply to you.
2.3 Documentation. You may download and make copies of the Documentation solely for your personal use, but no more than the amount reasonably necessary. You must retain on all such copies all copyright and other proprietary notices that appear on or in the Documentation.
2.4 Other Restrictions. You agree not to modify, port, adapt or translate the Software, or to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You are not permitted to sublicense, assign or transfer the Software or any rights in the Software, or authorize any portion of the Software to be accessed by another individual or entity. You are not permitted to (a) use the Software on behalf of third parties; (b) rent, lease, lend or grant other rights in the Software; or (c) using any component, library, database or other technology included with the Software other than solely in connection with your use of the Software.
3. Intellectual Property Rights.
The Software and any copies that you are authorized by Orbitera to make are the intellectual property of and are owned by Orbitera and its licensors. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Orbitera and its licensors. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software, and all rights not expressly granted are reserved by Orbitera.
By using the Platform to publicly offer trials of an Orbitera Customer’s software or solution, you authorize Orbitera to publicize such trials, including without limitation to use such Orbitera Customer’s name or logo on Orbitera web properties.
4. No Support.
You acknowledge and agree that Orbitera support obligations, if any, with respect to the Orbitera Web Services are solely to the Orbitera Customer, and you agree to seek all support for the Orbitera Web Services from the Orbitera Customer that has authorized you to be an Authorized User. Additionally, and for the avoidance of doubt, Orbitera has no liability and provides no support for the Platform.
5. No Warranties.
ORBITERA SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. ORBITERA ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
ORBITERA DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS OR SERVICES OFFERED BY OR THROUGH THE PLATFORM. ORBITERA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT THE PLATFORM, AND SHALL NOT BE LIABLE FOR ANY THIRD PARTIES OR THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
ORBITERA WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING THE PLATFORM OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitations on Liability.
IN NO EVENT WILL ORBITERA OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, OR PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, EVEN IF AN ORBITERA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ORBITERA’S AGGREGATE LIABILITY AND THAT OF ITS LICENSOR’S UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF FIVE HUNDRED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF ORBITERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 6 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
7. Notice to U.S. Government End Users.
The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All rights are reserved under the copyright laws of the United States. Orbitera Inc., 8391 Beverly Blvd. #449 Los Angeles, California 90048.
8. Export Rules.
You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that you will comply with the Export Laws. You are not permitted to ship, transfer, export or re-export the Software, directly or indirectly, to (a) any countries that are subject to US export restrictions (currently including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will use them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) you will not use the Software for a Prohibited Use, and (iii) you are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
9. Term and Termination.
This Agreement shall remain in effect until either (a) any material breach of this Agreement by you occurs, (b) the termination or expiration of the applicable Orbitera Customer Agreement, or (c) other cancellation of the applicable Orbitera Customer’s right to use the Software under such agreement. Upon the occurrence of (a), (b) or (c) above, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, you must immediately discontinue all use of the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 3 (Intellectual Property Rights), 5 (No Warranties), 6 (Limitations on Liability), 7 (Notice to U.S. Government End Users), 9 (Term and Termination), 12 (Governing Law), and 13 (General Provisions). Orbitera reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time.
10. Third-Party Beneficiaries.
You acknowledges and agrees that Orbitera’s licensors are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Orbitera.
11. Third Party Software.
The Software may contain third-party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://orbitera.com/app/third-party-eula (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
12. Governing Law.
This Agreement and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of California. The courts of Orange County, California shall have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the following, the application of which is hereby expressly excluded: (a) the conflict of law rules of any jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
13. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates and upgrades may be licensed by Orbitera with additional or different terms. This is the entire agreement between Orbitera and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. You agree to comply with all applicable laws and regulations pertaining to this Agreement.
INFORMATICA CLOUD FOR GOOGLE BIGQUERY DATA INTEGRATION TEST DRIVE AGREEMENT
BY CLICKING THE ACCEPTANCE CHECK BOX DISPLAYED AS PART OF THE ENROLLMENT PROCESS, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. THIS INFORMATICA CLOUD FOR GOOGLE BIGQUERY DATA INTEGRATION TEST DRIVE AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR USE OF THE INFORMATICA CLOUD FOR GOOGLE BIGQUERY DATA INTEGRATION TEST DRIVE (THE “TEST DRIVE CLOUD SERVICE”). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BOTH USE THE PRODUCTS AND TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE ACCEPTANCE CHECK BOX AND THEREFORE YOU MAY NOT USE THE PRODUCTS.
1. Test Drive Cloud Service Subscription. Subject to the terms and conditions hereof, Informatica grants to Customer, for approximately five hours (the “Test Drive Period”), a limited non-exclusive, non-transferable, revocable worldwide right to authorize individuals solely within the Customer organization (“Users”) to access or exchange data via the Test Drive Cloud service solely for the purpose of Customer’s internal evaluation of the Test Drive Cloud Service and not for general commercial use. Customer shall not use the Test Drive Cloud Service for the processing of any live or production data.
2. Customer Data in the Test Drive Cloud Service. The Test Drive Cloud Service may use third-party data centers. Informatica to the best of its knowledge complies with all United States laws applicable to Informatica as provider of the Test Drive Cloud Service. Informatica reserves the right to hire other companies to provide services on its behalf in connection with its provision of the Test Drive Cloud Service. Informatica reserves the right to transfer information or material that Customer and its Users process or submit to the Test Drive Cloud Service in the course of using the Test Drive Cloud Service (“Customer Data”) to the U.S. and other countries for processing in connection with its provision of the Test Drive Cloud Service. Customer is solely responsible for ensuring that provision of Customer Data to Informatica for processing via the Test Drive Cloud Service is in compliance with all applicable laws.
3. Data Collection and Usage. Software may and use collect information about Customer and Customer’s usage for internal business purposes including marketing, benchmarking, and operating and improving Informatica products and services, but not Your Customer Data, and transmit such usage information to Informatica.
4. No Services. Informatica is under no obligation to provide Customer with any services except as explicitly set forth herein.
5. Termination. The subscription granted hereunder terminates on expiration of the Test Drive Period. Additionally, either party may terminate this Agreement upon written notice to the other party at any time. Upon termination, the subscription to the Test Drive Cloud Service will terminate, Customer’s access to the Test Drive Cloud Service will cease, and any Customer Data will be deleted. Sections 2 through 11 shall survive termination of this Agreement.
6. Proprietary Rights; Restrictions; Confidentiality. Customer acknowledges that the Test Drive Cloud Service contains confidential information and trade secrets of Informatica and its licensors. Customer will not: copy (except as strictly necessary to use the Test Drive Cloud Service in accordance with the terms of section 1 hereof), distribute, sell, sublicense or otherwise transfer or make available the Test Drive Cloud Service or any portion thereof to any third party; remove from view any copyright legend, trademark or confidentiality notice appearing on the Test Drive Cloud Service or its output; modify, adapt, translate, reverse engineer, decompile or derive the source code for the Test Drive Cloud Service, or authorize a third party to do any of the foregoing. Customer will reproduce all of Informatica’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Test Drive Cloud Service that Customer makes hereunder.
Under no circumstances may the Test Drive Cloud Service be used for any illegal or illicit purpose in any geography where the Test Drive Cloud Service is used. Customer shall: (i) protect the secrecy of Customer’s authorized user IDs and passwords; (ii) notify Informatica immediately of any unauthorized use of any user ID or password or any other known or suspected breach of security; and (iii) report to Informatica immediately and use reasonable efforts to stop any copying or distribution of content not authorized by Informatica that is known or suspected by Customer or its Users. Customer will not: (i) use the Test Drive Cloud Service in violation of applicable laws; (ii) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights in connection with the Test Drive Cloud Service; (iii) send or store malicious code in connection with the Test Drive Cloud Service; (iv) damage, disable, overburden, impair, interfere with or disrupt the Test Drive Cloud Service; (v) attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Test Drive Cloud Service or in any way with the use or enjoyment of the Test Drive Cloud Service by others; (vi) allow more than one individual to use a User account; (vii) make the Test Drive Cloud Service available to any third party (via a services arrangement, service bureau, lease, sale, resale, or otherwise); and, (viii) exceed any applicable bandwidth limit or storage capacity limit. Customer shall fully indemnify and defend Informatica, its agents, officers, directors, and employees against any and all fees, fines, costs, liens, judgments and expenses that any such person(s) may incur as a result of any potential or actual violation of this provision.
Customer will not use the Test Drive Cloud Service or any documentation provided therewith for any purpose other than Customer’s internal evaluation and the provision of feedback to Informatica. Customer will not disclose to any third party without the prior written approval of Informatica, the Test Drive Cloud Service, its features, feedback (as defined in section 10), related technical information identified as confidential or the results of any performance or functional evaluation or test of the Test Drive Cloud Service (the “Confidential Information”). Customer will use no less than all reasonable efforts to protect the Confidential Information from unauthorized use or disclosure. Customer may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for Customer’s evaluation of the Test Drive Cloud Service and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. Customer will immediately report any violation of this provision to Informatica and shall employ all reasonable means to mitigate any damages or losses that Informatica may incur as a result of any such violation. Customer’s rights in the Test Drive Cloud Sesvice will be limited to those expressly granted in Section 1. Informatica and its licensors reserve all rights and licenses in and to the Test Drive Cloud Service not expressly granted to Customer hereunder.
7. Warranty. THE TEST DRIVE CLOUD SERVICE IS PROVIDED “AS-IS.” INFORMATICA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.
8. Acknowledgment of Test Status. Customer acknowledges and agrees that it should not rely on the Test Drive Cloud Service for any reason. Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Test Drive Cloud Service. Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Customer’s use of the Test Drive Cloud Service.
9. Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF INFORMATICA AND ITS LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE TEST DRIVE CLOUD SERVICE, OR FOR ANY ERROR OR DEFECT IN THE TEST DRIVE CLOUD SERVICE, OR FOR THE PROVISION OF TECHNICAL SUPPORT INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED ANY FEES PAID TO INFORMATICA HEREUNDER. IN NO EVENT WILL INFORMATICA OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
The limitations of liability set forth in this Agreement reflect the allocation of risk negotiated and agreed to by the Parties. The Parties would not enter into this Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
10. Feedback. Customer may provide reasonable feedback to Informatica concerning the features and functionality of the Test Drive Cloud Service. If Customer provides feedback to Informatica, Customer grants Informatica an unlimited, worldwide, royalty-free license to use all such feedback for any purpose. Customer will not earn or acquire any rights or licenses in the Test Drive Cloud Service, in any future commercial version thereof, or in any Informatica products or services or intellectual property rights on account of this Agreement or Customer's performance under this Agreement, even if Informatica incorporates any feedback into the Test Drive Cloud Service.
11. General. Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without Informatica’s prior written consent, and any attempted assignment without such consent will be null and of no effect. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the evaluation of the Test Drive Cloud Service and shall be construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law). 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 the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission or by overnight delivery service and in each instance will be deemed given upon receipt.
Exhibit A - Privacy and Data Security Exhibit
1. Definitions. The following capitalized terms will have the meaning specified below:
(a) “Data Subject” means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
(b) “Personal Data” means any information (i) Processed by Vendor (or any of its subcontractors) in connection with the services it provides to Informatica under the Agreement, and (ii) that relates to a Data Subject.
(c) “Privacy Shield Principles” means, collectively, the EU-U.S. Privacy Shield Framework Principles and Swiss-U.S. Privacy Shield Framework Principles issued by the U.S. Department of Commerce and approved by the European Commission and the Swiss Federal Data Protection and Information Commissioner, respectively.
(d) “Process” or “Processing” means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as access, 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 Breach” means any accidental or unauthorized access, use, disclosure, destruction, loss, or alteration of Personal Data.
(f) “Vendor Systems” means networks, systems, and devices operated by Vendor that are used to Process Personal Data.
2. Scope of Processing. Vendor will Process Personal Data (a) solely in accordance with the instructions specified in the attached Schedule 1 (Scope of Processing) or as otherwise approved by Informatica in writing, and (b) in accordance with applicable Law. Personal Data will be deemed the confidential information of Informatica under the Agreement. Informatica may disclose the terms of this Exhibit upon request by a supervisory authority.
3. Subcontractors. Vendor will only Process Personal Data itself or through a subcontractor that has been approved by Informatica in writing (“Approved Subcontractor”). Any subcontractor specified in attached Schedule 2 (Approved Subcontractors) will be deemed an Approved Subcontractor. Informatica has the right to grant or withhold such approval in its sole discretion and may subsequently revoke such approval if the subcontractor’s performance, in the reasonable judgment of Informatica, breaches this Exhibit. Prior to any Approved Subcontractor Processing Personal Data, Vendor will enter into an agreement with such Approved Subcontractor that imposes contractual obligations that are at least equivalent to the obligations imposed on Vendor under this Exhibit. Any act or omission of an Approved Subcontractor will be deemed an act or omission of Vendor, and Vendor will be fully responsible for the performance of its Approved Subcontractors. Vendor will document its security assessments of any Approved Subcontractors and, upon reasonable request by Informatica, share such assessments with Informatica without any undue delay.
4. Vendor Assistance. Vendor will, promptly and without undue delay, comply with Informatica’s reasonable requests for assistance (and cause Approved Subcontractors to comply with such requests) with Informatica’s communications, or provision of information, to Data Subjects or supervisory authorities in relation to the Agreement or the Processing of Personal Data. Without limiting the foregoing, Vendor will, upon reasonable request of Informatica: (a) correct any inaccurate Personal Data, (b) provide a copy, in a structured, commonly used and machine-readable format, of the Personal Data undergoing Processing; (c) delete Personal Data; (d) promptly inform Informatica if, in Vendor’s opinion, an instruction by Informatica violates applicable Law; (e) promptly notify and cooperate with Informatica following Vendor’s receipt (and prior to fulfillment) of any request received by Vendor directly from a Data Subject to exercise any right with respect to Personal Data; (f) assist Informatica in conducting a data protection impact assessment and related consultations with any supervisory authority concerning the Processing of Personal Data by Vendor; and (g) otherwise provide reasonable assistance to Informatica as necessary for Informatica to comply with its obligations under applicable Law.
5. Data Transfers. Vendor will not transfer, or cause to be transferred, any Personal Data from one jurisdiction to another without Informatica’s prior written consent. Vendor will ensure that each such transfer is in accordance with all applicable Law and will not cause Informatica to be in breach of any applicable Law.
6. Privacy Shield. Vendor will provide at least the same level of privacy protection as is required by the Privacy Shield Principles when Processing Personal Data that has been transferred from the EU or Switzerland to the U.S. (“Covered Data”). If Vendor has self-certified under the Privacy Shield Principles, Vendor represents and warrants that (a) it will comply with the Privacy Shield Principles, (b) the scope of its certification adequately covers all Covered Data Processed by Vendor under the Agreement, and (c) it will maintain its certification during the term of the Agreement. In the event the Privacy Shield Principles are invalidated or become no longer effective, the parties will cooperate in good faith to utilize an alternative data transfer mechanism. If the parties fail to agree upon such alternative, then Informatica may terminate the Agreement upon notice to Vendor.
7. Security Safeguards. Vendor will implement, maintain and monitor a written information security program (“Information Security Program”) that contains appropriate administrative, technical and organizational safeguards (“Safeguards”) designed to ensure the security, confidentiality, and availability of Personal Data and to prevent Security Breach. The Safeguards will be appropriate to the nature of the Personal Data Vendor Processes and will meet or exceed prevailing industry standards. Vendor will regularly test, assess, and evaluate the effectiveness of the Information Security Program. The Safeguards will include at a minimum:
(a) physical controls designed to secure relevant facilities, infrastructure, data centers, hard copy files, servers, backup systems, and equipment (including mobile devices) used to Process Personal Data, including controls to prevent, detect, and respond to intrusions or other system failures;
(b) user authentication and access controls that are designed to ensure that access to Personal Data is limited to its employees on a need to know basis and only as necessary for performance of the services under the Agreement;
(c) screening procedures (including background checks) and training programs for employees who may have access to Personal Data, including by ensuring that persons authorized to Process Personal Data have committed in writing to maintain the confidentiality of Personal Data or are under an appropriate statutory obligation of confidentiality;
(d) logging and monitoring of the details of all Processing of Personal Data on Vendor Systems;
(e) measures for ensuring that all Personal Data is compartmentalized or otherwise logically distinct from, and in no way commingled with, other information of Vendor or its personnel, suppliers, customers or other third parties; and
(f) up-to-date controls to protect all Vendor Systems from malware, ransomware, and unauthorized software, including prompt implementation of all security patches when issued.
8. PCI DSS. If Vendor Processes “cardholder data,” as defined by the then-current Payment Card Industry Data Security Standard (“PCI DSS”), Vendor will Process such data in accordance with the PCI DSS and any other applicable card association rules.
9. Audits and Scans.
(a) Vendor will, or may engage an independent third party to, conduct regular (i) vulnerability scans of Vendor Systems using vulnerability scanning software and services, and (ii) penetration testing on Vendor Systems no less frequently than once per calendar year from the perspective of an external attacker and a credentialed user.
(b) Vendor will procure annual SOC2 audits (or audits of a substantially similar standard) of the Vendor Systems by an independent third party on an annual basis. Vendor will provide a summary of the results of these audits to Informatica promptly following any request by Informatica. If the audit reveals one or more material vulnerabilities, Vendor will promptly correct each vulnerability at its sole cost and expense.
(c) Upon reasonable prior notice, Informatica may conduct or may engage an independent third party to conduct an audit of the Vendor Systems (including through penetration testing), Vendor’s Information Security Program and Vendor’s performance of its obligations under this Exhibit. Vendor will (i) cooperate with any such audit, (ii) grant Informatica and its representatives full and complete access, during normal business hours, to Vendor’s relevant facilities, networks and systems and to all relevant books, records, procedures and information; and (iii) promptly remediate any shortcomings identified in the audit. Informatica will bear the costs of such an audit, unless the audit reveals material vulnerabilities, in which case Vendor will promptly reimburse Informatica for the costs of the audit.
10. Security Breach Notification.
(a) Notification and Cooperation. Vendor will notify Informatica of any Security Breach promptly after becoming aware of such Security Breach (and in any event within 24 hours). In any such notice, Vendor will include: (i) a description of the Security Breach, including the number and categories of Data Subjects concerned, categories and number of data records concerned, types of Personal Data affected, and date and time of such incident, (ii) a summary of the incident that caused the Security Breach and any ongoing risks that the Security Breach poses, (iii) a description of the measures proposed or taken by Vendor to address the Security Breach, and (iv) any other information reasonably requested by Informatica that Informatica requires to comply with applicable Law or requests by supervisory authorities. If and solely to the extent it is not possible to provide the above information at the same time, the information may be provided in phases without undue delay. In the event of a Security Breach, Vendor will not communicate directly with any affected Data Subjects without Informatica’s prior written approval.
(b) Responsibility. In the event of a Security Incident, Vendor will be liable for any losses and expenses incurred by Informatica in connection with the Security Breach, including: (a) the cost of preparing and delivering notices to affected Data Subjects; (b) the cost of providing credit monitoring services or other credits or benefits extended to affected Data Subjects; (c) reasonable attorneys’ fees associated with investigation, remediation and response; and (d) liability to third parties, including government regulators, that Informatica incurs in connection with the Security Breach (such as amounts paid or for which Informatica is liable to third parties in tort or arising out of contracts).
11. Return or Destruction of Personal Data. Either upon request by Informatica or when Vendor no longer is required to Process Personal Data to fulfill its obligations under the Agreement, Vendor will (a) cease all Processing of Personal Data; and (b) return all Personal Data and all copies thereof to Informatica or, at Informatica’s option, destroy all Personal Data and all copies thereof and certify such destruction in writing, except to the extent that Vendor is required under applicable Law to keep a copy of Personal Data.
12. Records. Vendor will keep accurate and up-to-date records relating to the Processing of Personal Data by Vendor and demonstrating Vendor’s performance under this Exhibit. Vendor will make such records available to Informatica upon request.
13. Noncompliance; Remedies. Vendor will immediately notify Informatica if Vendor makes a determination that it can no longer meet any of its obligations under this Exhibit. Any noncompliance with this Exhibit will be deemed unauthorized Processing. Vendor will take reasonable and appropriate steps to stop and remediate, and will cooperate with Informatica’s reasonable requests regarding, any unauthorized Processing of Personal Data by Vendor. In the event Vendor breaches any of its obligations under this Exhibit, Informatica will have the right to terminate the Agreement, or suspend Vendor’s further Processing of any Personal Data, without penalty immediately upon notice to Vendor.
14. Miscellaneous. This Exhibit will survive termination of the Agreement. In the event of any conflict between the Agreement and this Exhibit, the terms of this Exhibit will control.
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