Website Terms and Conditions

 

Last Updated:  April 25, 2024

Acceptance of the Terms and Conditions. Datavolo, Inc. (herein referred to as “Datavolo,” “we,” “us” or “our”) provides and makes available this web site (the “Site”).  All use of the Site is subject to the terms and conditions contained in these Website Terms and Conditions (this “Agreement”).  Please read this Agreement carefully.  By accessing, browsing or otherwise using the Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement.  If you do not accept the terms and conditions of this Agreement, you shall not access, browse or use the Site.  You understand and agree that your use of our products and services (“Datavolo Products”) shall not be governed by this Agreement, but rather by your company’s or organization’s agreement with Datavolo covering such Datavolo Products.  However, please note that your access to and use of the Site and any Datavolo Products is also subject to Datavolo’s Privacy Policy located at https://datavolo.io/datavolo-privacy-policy/.

You understand and agree that we may change this Agreement at any time without prior notice.  You may read a current, effective copy of this Agreement at any time by selecting the “Terms of Use” link on the Site.  The revised terms and conditions will become effective at the time of posting.  Any use of the Site after such date shall constitute your acceptance of such revised terms and conditions. If any change to this Agreement is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Site.

Use of the Site.  This Site contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third-parties.  The Content is protected by United States and foreign intellectual property laws.  Unauthorized use of the Content may result in violation of copyright, trademark, and other laws.  You have no rights in or to the Content, and you will not copy the Content and will only access and use the Content for your personal purposes. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose.  The use or posting of any of the Content on any other web site or computer network for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate.

The trademarks, service marks, and logos of Datavolo (the “Datavolo Trademarks”) used and displayed on this Site are registered and unregistered trademarks or service marks of Datavolo.  Other company, product, and service names located on the Site may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the Datavolo Trademarks, the “Trademarks”).  Nothing on this Site or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Site without the prior written consent of Datavolo specific for each such use.  The Trademarks may not be used to disparage Datavolo or the applicable third-party, Datavolo’s or third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks.  Use of any Trademarks as part of a link to or from any website is prohibited without Datavolo’s prior written consent.  All goodwill generated from the use of any Datavolo Trademark shall inure to Datavolo’s benefit.

You agree not to: (a) take any action that imposes an unreasonable load on the Site’s infrastructure, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site, (d) delete or alter any material posted on the Site by Datavolo or any other person or entity, or (e) frame or link to any of the materials or information available on the Site.

The Site contains links to third-party web sites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites.  The content of such External Sites is developed and provided by others.  You should contact a representative of those External Sites if you have any concerns regarding such links or any content located on such External Sites.

We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs.  If you decide to access any External Sites, you do so at your own risk.

Certain elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 2.1 of the Agreement. None of the Content for this Site may be retransmitted without the express written consent from Datavolo for each and every instance.

You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to us with respect to the Site or Content.  We shall have full discretion to determine whether or not to proceed with the development or implementation of any Feedback.  You hereby grants Datavolo a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

Limitation of Liability and Disclaimer of Warranties.  DATAVOLO, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “DATAVOLO PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SITE OR CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY.  THE DATAVOLO PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE SITE OR CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE.  YOU AGREE THAT YOU USE THE SITE AND THE CONTENT AT YOUR OWN RISK.

THE DATAVOLO PARTIES DO NOT WARRANT THAT THE SITE WILL OPERATE ERRORFREE OR THAT THE SITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO DATAVOLO PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.

THE SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE DATAVOLO PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. 

IN NO EVENT SHALL ANY DATAVOLO PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH DATAVOLO PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME STATES DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  ACCORDINGLY, IN SUCH STATES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU, AND THE LIABILITY OF THE DATAVOLO PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

IF YOU ARE FROM NEW JERSEY, THE FOREGOING SECTIONS 3.1 AND 3.2 AND SECTION 4 BELOW ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Indemnification.  To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless the Datavolo Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the Content or Site.  Datavolo shall provide notice to you of any such claim, suit, or proceeding.  Datavolo reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Datavolo’s defense of such matter.

Termination of the Agreement.  Datavolo reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site or the Content at any time and for any reason without prior notice or liability. Datavolo reserves the right to change, suspend, or discontinue all or any part of the Site or the Content at any time without prior notice or liability.

Sections 2 (Use of the Site), 3 (Limitation of Liability and Warranty), 4 (Indemnification), 5 (Termination of Agreement), and 8 (Miscellaneous) shall survive the termination of this Agreement.

User Must Comply with Applicable Laws.  This Site is hosted in the United States.  We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States.  If you access the Site or the Content from outside of the United States, you do so at your own risk.  Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.

U.S. Government Restricted Rights.  The Content is provided with “RESTRICTED RIGHTS.”  Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor.  Use of the Site or Content by the Government constitutes acknowledgement of our proprietary rights in the Site and Content.

Miscellaneous.  This Agreement is governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts located in the State of Delaware.  If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.   Failure of Datavolo to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement.  No waiver shall be effective against Datavolo unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Datavolo and you, this Agreement constitutes the entire agreement between you and Datavolo with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter.  The section headings are provided merely for convenience and shall not be given any legal import.  We may freely assign our rights under this Agreement.  This Agreement will inure to the benefit of our successors and assigns.  Any information submitted or provided by you to the Site might be publicly accessible.  Important and private information should be protected by you.

Data Processing Addendum

 

This Data Processing Addendum (including all Schedules attached hereto, the “DPA”) is incorporated into, and is subject to the terms and conditions of, the Master Subscription Agreement (“Agreement”) between Datavolo, Inc. (“Datavolo ”) and the entity identified as the customer in the Agreement or the relevant order form (“Customer”). This DPA applies to the extent Datavolo’s Processing of Customer Personal Data in the provision of the Datavolo Product is subject to the Data Protection Legislation. This DPA shall be effective for the term of the Agreement.

1. Definitions

1.1. “Controller” means the entity that determines the purposes and means of the Processing of Personal Data. The term “Controller” includes a “business” as defined under the CCPA.

1.2. “Customer Personal Data” means the Personal Data described under Schedule 1 to this DPA.

1.3. “Data Protection Legislation” means all laws and regulations, including laws and regulations of: (i) the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom; (ii) the United States (including, but not limited to the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”) and other applicable state privacy laws); and (iii) any other jurisdiction in which the parties operate, all (i)–(iii) applicable to the Processing of Personal Data under the Agreement.

1.4. “Data Subjects” means the individuals identified in Schedule 1 to this DPA.

1.5. “EU SCCs” means the Standard Contractual Clauses approved with Commission Implementing Decision (EU) 2021/914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as amended, supplemented, updated or replaced from time to time.

1.6. “GDPR” means the General Data Protection Regulation (EU) 2016/679 together with any national implementing laws in any member state of the EEA (“EU GDPR”), and the EU GDPR as incorporated into the laws of the United Kingdom (“UK GDPR”).

1.7. “Personal Data” and “Processing” will each have the meaning given to them in the Data Protection Legislation. The term “Personal Data” includes “personal information,” “personally identifiable information,” and equivalent terms as such terms may be defined by the Data Protection Legislation.

1.8. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data.

1.9. “Processor” means the entity which Processes Personal Data on behalf of the Controller. The term “Processor” includes a “service provider” as that term is defined under the CCPA.

1.10. “Sell” and “Share” has the meaning given in the Data Protection Legislation.

1.11. “Sub-Processor” means another Processor engaged by a Processor to carry out Processing on behalf of a Controller.

1.12. “UK Addendum” means the International Data Transfer Addendum to the EU SCCs, issued by the UK Information Commissioner for parties making restricted transfers, which entered into force on 21 March 2022 (collectively, with the EU SCCs, the “SCCs”).

Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

2. Processing of Customer Personal Data

2.1. Customer is a Controller of Customer Personal Data and Datavolo is a Processor. If Customer is itself acting as a Processor for Customer Personal Data on behalf of a Controller of such data, Datavolo will Process such data as a Sub-Processor to Customer. The details of Datavolo’s Processing of Customer Personal Data are described in Schedule 1 to this DPA.

2.2. Datavolo will only Process Customer Personal Data as a Processor on behalf of and in accordance with Customer’s prior written instructions, including any instructions provided through Customer’s use of the Datavolo Product. Customer hereby instructs Datavolo to Process Customer Personal Data to the extent necessary to provide the Datavolo Product as set forth in the Agreement and this DPA. Datavolo shall not (1) retain, use, or disclose Customer Personal Data other than as provided for in the Agreement, as needed to provide the Datavolo Product, or as otherwise permitted by Data Protection Legislation; (2) retain, use, or disclose Customer Personal Data outside of the direct business relationship between Customer and Datavolo, including by combining Customer Personal Data with Personal Data Datavolo receives from third parties, other than Customer, except as permitted by the Data Protection Legislation; or (3) Sell or Share Customer Personal Data. Upon notice to Datavolo, Customer may take reasonable and appropriate steps to remediate Datavolo’s use of Customer Personal Data in violation of this DPA.

2.3. Datavolo will immediately inform Customer if, in its opinion, an instruction from Customer infringes the Data Protection Legislation. If applicable laws preclude Datavolo from complying with Customer’s instructions, Datavolo will inform Customer of its inability to comply with the instructions, to the extent permitted by law.

2.4. Each of Customer and Datavolo will comply with their respective obligations under the Data Protection Legislation. Datavolo shall notify Customer if it determines that it cannot meet its obligations under the Data Protection Legislation. Customer has the right to take reasonable steps to ensure that Datavolo uses Customer Personal Data in a manner consistent with Customer’s obligations under Data Protection Legislation by exercising Customer’s audit rights in Section 10 of this DPA.

3. Cross-Border Transfers of Personal Data

3.1. With respect to Customer Personal Data originating from the European Economic Area (“EEA”), the United Kingdom (the “UK”) or Switzerland that is transferred from Customer to Datavolo, the parties agree to comply with the general clauses and with “Module Two” (Controller to Processor) and “Module Three” (Processor to Processor) of the EU SCCs, which are incorporated herein by reference, with Customer as the “data exporter” and Datavolo as the “data importer.”

3.2. For purposes of the EU SCCs the parties agree that:

3.2.1. The optional docking clause 7 of the EU SCCs will not apply.

3.2.2. In clause 9 of the EU SCCs, option 2 will apply and the time period for prior notice of Sub-Processor changes will be as set forth in Section 5.2 of this DPA.

3.2.3. The optional language in clause 11 of the EU SCCs will not apply.

3.2.4. In clause 17 of the EU SCCs, option 1 applies and the EU SCCs shall be governed by the laws of Ireland.

3.2.5. In clause 18(b) of the EU SCCs, the parties agree to submit to the jurisdiction of the courts of Ireland.

3.2.6. In Annex I, Section A (List of Parties) of the EU SCCs, (i) the Customer is the data exporter and Datavolo is the data importer, and their identity and contact details and, where applicable, information about their respective data protection officer and/or representative in the EEA are those set forth in the Agreement or as otherwise communicated by each party to the other party; (ii) Customer is a Controller (under “Module Two” of the EU SCCs) or Processor (under “Module Three” of the EU SCCs), and Datavolo is a Processor; (iii) the activities relevant to the data transferred under the EU SCCs relate to the provision of the Datavolo Product pursuant to the Agreement; and (iv) entering into this DPA shall be treated as each party’s signature of Annex I, Section A, as of the effective date of this DPA.

3.2.7. In Annex I, Section B (Description of Transfer) of the EU SCCs: (i) Schedule 1 to this DPA describes Datavolo’s Processing of Customer Personal Data; (ii) the frequency of the transfer is continuous (for as long as Customer uses the Datavolo Product); (iii) Customer Personal Data will be retained in accordance with Clause 8.5 of the EU SCCs and this DPA; (iv) Datavolo uses the Sub-Processors described in Section 5.2 of this DPA to support the provision of the Datavolo Product.

3.2.8. In Annex I, Section C (Competent Supervisory Authority) of the EU SCCs, the competent supervisory authority identified in accordance with Clause 13 of the EU SCCs is the competent supervisory authority communicated by Customer to Datavolo.

3.2.9. In Annex II of the EU SCCs, data importer has implemented and will maintain appropriate technical and organizational measures to protect the security, confidentiality and integrity of Customer Personal Data as described in Schedule 2 to this DPA.

3.3. If the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection (“FADP”), the parties agree to rely on the EU SCCs with the following modifications: (i) the Federal Data Protection and Information Commissioner (FDPIC) will be the competent supervisory authority under Clause 13 of the EU SCCs; (ii) the parties agree to abide by the GDPR standard in relation to all Processing of Customer Personal Data that is governed by the FADP; (iii) the term “Member State” in the EU SCCs will not prevent Data Subjects who habitually reside in Switzerland from initiating legal proceedings in Switzerland in accordance with Clause 18(c) of the EU SCCs; and (iv) references to the ‘GDPR’ in the EU SCCs will be understood as references to the FADP.

3.4. With respect to transfers from Customer to Datavolo of Customer Personal Data originating from the UK, the parties agree that the UK Addendum will complement the EU SCCs to the extent required under Data Protection Law. The UK Addendum is incorporated herein by reference. The parties agree that the UK Addendum is completed as follows:

3.4.1. For the purpose of Part 1 of the UK Addendum:

3.4.1.1. Table 1 (Parties): the start date is the effective date of the Agreement, the exporter is the Customer and the importer is Datavolo, the table is deemed to be completed with the information set out in Section 3.2 of this DPA, and by entering into this DPA, the parties are deemed to have signed the UK Addendum.

3.4.1.2. Table 2 (Selected SCCs, Modules and Selected Clauses): the “Approved EU SCCs” which the UK Addendum is appended to are the EU SCCs incorporated into this DPA and completed as set out in Section 3.2 of this DPA.

3.4.1.3. Table 3 (Appendix Information): the information requested in Annex 1 is provided in Sections 3.2.6 and 3.2.7 of this DPA; the security measures requested in Annex 2 are described in Schedule 2 to this DPA; the list of Sub-Processors is available as described in Section 5.2 of this DPA.

3.4.1.4. Table 4: both the data importer and the data exporter may end the UK Addendum as set out in section 19 of the UK Addendum.

4. Confidentiality and Security

4.1. Datavolo will require Datavolo’s personnel who access Customer Personal Data to commit to protect the confidentiality of Customer Personal Data.

4.2. Datavolo will implement commercially reasonable technical and organisational measures, as further described in Schedule 2 to this DPA, that are designed to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data.

4.3. To the extent required by Data Protection Legislation, Datavolo will provide Customer with reasonable assistance for the fulfilment of Customer’s obligations under Data Protection Legislation to maintain the security of Customer Personal Data.

5. Sub-Processing

5.1. Customer hereby authorizes Datavolo to appoint (and permit each Sub-Processor appointed in accordance with this Section 5 to appoint) Sub-Processors in accordance with this Section 5.

5.2. The Sub-Processors appointed by Datavolo as at the date of this DPA are set out in Schedule 3 of this DPA. Datavolo will inform customer of any intended changes concerning the addition or replacement of any appointed Sub-Processors (a “New Sub-Processor”) at least ten (10) days in advance, along with reasonably detailed information about such New Sub-Processor. Customer will have an opportunity to object in writing to the appointment of a New Sub-Processor within ten (10) business days after receipt of notice of a New Sub-Processor in accordance with Section 5.2, provided that such objection must be on reasonable, substantial grounds, directly related to such New Sub-Processor’s ability to comply with substantially similar obligations to those set out in this DPA. If Customer does not so object, the engagement of the New Sub-Processor shall be deemed accepted by Customer. If Customer notifies Datavolo in writing of any objections to the proposed appointment, the parties agree to discuss commercially reasonable alternative solutions in good faith. If the parties cannot reach a resolution within thirty (30) business days from the date of

5.3. Datavolo’s receipt of Customer’s written objection, the parties may terminate the Agreement.
Datavolo will enter into an agreement with each Sub-Processor that imposes on the Sub-Processor, in substance, the same obligations that apply to Datavolo under this DPA. Where any of its Sub-Processors fails to fulfil its data protection obligations, Datavolo will be liable to Customer for the performance of its Sub-Processors’ obligations.

6. Data Subject Rights

Customer is responsible for responding to any Data Subject requests relating to Customer Personal Data (“Requests”). If Datavolo receives any Requests during the term of the Agreement, Datavolo will advise the Data Subject to submit the request directly to Customer. Datavolo will provide Customer with reasonable assistance to permit Customer to respond to Requests.

7. Personal Data Breaches

Upon becoming aware of a Personal Data Breach affecting Customer Personal Data, Datavolo will (i) promptly take measures designed to remediate the Personal Data Breach, and (ii) notify Customer without undue delay. Customer is solely responsible for complying with Personal Data Breach notification requirements applicable to Customer. Customer may request that Datavolo reasonably assist Customer’s efforts to notify Personal Data Breaches to the competent data protection authorities and/or affected Data Subjects, if Customer is required to do so under the Data Protection Legislation. Datavolo’s notice of or response to a Personal Data Breach under this Section 7 will not be an acknowledgement or admission by Datavolo of any fault or liability with respect to the Personal Data Breach.

8. Data Protection Impact Assessment; Prior Consultation

Customer may request reasonable assistance from Datavolo in connection with conducting data protection impact assessments and consultation with data protection authorities if Customer is required to engage in such activities under applicable Data Protection Legislation and the data protection impact assessment or consultation relate to the Processing by Datavolo of Customer Personal Data.

9. Deletion or Return of Customer Personal Data

Datavolo will delete or return Customer Personal Data, upon Customer’s written request, upon termination of the Agreement, and delete existing copies. The parties agree that the certification of deletion described in the SCCs, if applicable, shall be provided only upon Customer’s written request. Notwithstanding the foregoing, Datavolo may retain Customer Personal Data to the extent and for the period required by applicable laws provided that Datavolo maintains the confidentiality of all such Customer Personal Data and Processes such Customer Personal Data only as necessary for the purpose(s) specified in the applicable laws requiring its storage.

10. Audits

10.1. Customer may audit Datavolo’s compliance with its obligations under this DPA up to once per year. In addition, Customer may perform more frequent audits (including inspections) in the event: (1) Datavolo suffers a Personal Data Breach affecting Customer Personal Data; (2) Customer has genuine, documented concerns regarding Datavolo’s compliance with this DPA or the Data Protection Legislation; or (3) where required by the Data Protection Legislation, including where mandated by regulatory or governmental authorities with jurisdiction over Customer Personal Data. Datavolo will contribute to such audits by providing Customer or Customer’s regulatory or governmental authority with the information and assistance reasonably necessary to conduct the audit.

10.2. To request an audit, Customer must submit a detailed proposed audit plan to [email protected] at least one month in advance of the proposed audit start date. The proposed audit plan must describe the proposed scope, duration, start date of the audit, and the identity of any third party Customer intends to appoint to perform the audit. Datavolo will review the proposed audit plan and provide Customer with any concerns or questions (for example, Datavolo may object to the third party auditor as described in Section 10.3, provide an Audit Report as described in Section 10.4, or identify any requests for information that could compromise Datavolo confidentiality obligations or security, privacy, employment or other relevant policies). The parties will negotiate in good faith to agree on a final audit plan at least two weeks in advance of the proposed audit start date. Nothing in this Section 10 shall require Datavolo to breach any duties of confidentiality.

10.3. Datavolo may object to third party auditors that are, in Datavolo’s reasonable opinion, not suitably qualified or independent, a competitor of Datavolo, or otherwise manifestly unsuitable. Customer will appoint another auditor or conduct the audit itself if the parties cannot resolve Datavolo’s auditor objection after negotiating in good faith.

10.4. If the requested audit scope is addressed in an SSAE 18/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor on Datavolo’s systems that Process Customer Personal Data (“Audit Reports”) within twelve (12) months of Customer’s audit request and Datavolo confirms there are no known material changes in the controls audited, Customer agrees to accept the Audit Report in lieu of requesting an audit of the controls covered by the Audit Report.

10.5. The audit must be conducted at a mutually agreeable time during regular business hours at the applicable facility, subject to the agreed final audit plan and Datavolo’s health and safety or other relevant policies. The audit may not unreasonably interfere with Datavolo business activities.

10.6. Any audits are at Customer’s expense and Customer will promptly disclose to Datavolo any perceived non-compliance or security concerns discovered during the audit, together with all relevant details.

10.7. The parties agree that the audits described in the SCCs, if applicable, shall be performed in accordance with this Section 10.

11. Liability

11.1. Each party’s liability towards the other party under or in connection with this DPA will be limited in accordance with the provisions of the Agreement.

11.2. Customer acknowledges that Datavolo is reliant on Customer for direction as to the extent to which Datavolo is entitled to Process Customer Personal Data on behalf of Customer in performance of the Datavolo Product. Consequently, Datavolo will not be liable under the Agreement for any claim brought by a Data Subject arising from (a) any action or omission by Datavolo in compliance with Customer’s instructions or (b) from Customer’s failure to comply with its obligations under the Data Protection Legislation.

12. General Provisions

With regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and the Agreement, the provisions of this DPA shall prevail. In the event of inconsistencies between the DPA and the SCCs, the SCCs will prevail.

SCHEDULE 1

Details of Processing

1. Categories of Data Subjects. This DPA applies to Datavolo’s Processing of Customer Personal Data relating to Customer’s authorized users, employees, contractors, or other individuals whose Personal Data is contained in Customer Materials.].

2. Types of Personal Data. The extent of Customer Personal Data Processed by Datavolo is determined and controlled by Customer in its sole discretion and may include names, email, and other Personal Data contained in Customer Materials.

3. Types of Sensitive Personal Data: None.

4. Subject-Matter and Nature of the Processing. Customer Personal Data will be subject to the Processing activities that Datavolo needs to perform in order to provide the Datavolo Product pursuant to the Agreement.

5. Purpose of the Processing. Datavolo will Process Customer Personal Data for purposes of providing the Datavolo Product as set out in the Agreement.

6. Duration of the Processing. Customer Personal Data will be Processed for the duration of the Agreement, subject to Section 9 of the DPA.

 

SCHEDULE 2

Security Measures

Datavolo will ensure the ongoing confidentiality, integrity, availability and resilience of processing systems, including the following safeguards:

(a) A security program which addresses: compliance and standards; data privacy and protection; communications and operations security management; physical security; systems acquisition, development, and maintenance; third-party risk management; configuration and change management for software systems; incident response planning and management, including appropriate maintenance, and monitoring and analysis of audit logs;

(b) Personnel, with access to Customer Personal Data, shall be bound to keep such information confidential and shall comply with Datavolo’s applicable data protection and security procedures;

(c) Where physical locations process Customer Personal Data in connection with this DPA, Datavolo shall ensure: (i) location access control procedures are aligned with Datavolo’s security procedures; (ii) data centers and other locations which house computers and communication systems used to perform obligations under this Agreement have: (a) suitable physical security measures designed to prevent unauthorized persons from gaining access; and (b) suitable environmental controls, in accordance with good industry practices, and have the ability to continue in operation despite disruption to the main power supply;

(d) Backups, on a regular basis, of Datavolo’s systems, applications, and software replicated to a disaster recovery facility, so recovery can take place when there is a disaster;

(e) Customer Personal Data is replicated to a disaster recovery facility, providing a scheduled point in time to back up the data to ensure data integrity;

(f) Encryption and other security technologies are implemented to safeguard the integrity, and confidentiality in connection with any transmission, transfer, communication, or remote access connectivity involving Customer Personal Data;

(g) Access to Datavolo’s systems, or applications, will be granted and revoked, in accordance with Datavolo’s procedures; and

(h) Passwords allocated will conform to industry standards and align with password management standards.

 

SCHEDULE 3

Sub-Processors

Company Name	Description of Service	Country of Processing
Amazon Web Services, Inc.	Cloud Infrastructure	United States
Google Cloud Platform	Cloud Infrastructure	United States
OpenAI	AI-Powered Product Features	United States
Pinecone	Seach & Database technology	United States
Snowflake	Data Warehousing	United States

 

 

 

 

Master Subscription Agreement

Terms and Conditions

These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Datavolo, Inc., a Delaware corporation (“Datavolo”), and the counterparty identified as the customer in the applicable Order Form (“Customer”).  These Terms and Conditions, together with all Order Forms and SOWs (each as defined below), constitute this “Agreement”.  If you are accepting these Terms and Conditions or an Order Form or SOW on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Datavolo Product (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.

1. Definitions

1. 1 The following terms, when used in this Agreement will have the following meanings:

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Materials” means any data, content or materials that Customer (including its Users) submits to the Datavolo Cloud Product.

“Documentation” means Datavolo’s then-current standard usage documentation for the Datavolo Product.

“Effective Date” means the date of the initial Order Form entered into between Customer and Datavolo.

“Order Form” means an ordering document or online order entered into between Customer and Datavolo, or online ordering flow completed by Customer, in each case that sets forth the applicable Datavolo Product to which Customer is subscribing, pricing therefor and subscription term, and that references these Terms and Conditions.

“Datavolo Product” means the data distribution and management platform developed by Datavolo, which may be deployed on a SaaS basis (the “Datavolo Cloud Product”) or provided to Customer for installation and use on Customer’s premises or private cloud (the “Datavolo On-Prem Product”), in each case as further described in the applicable Order Form.

“Professional Services” means training, migration or other professional services that Datavolo furnishes to Customer related to the Datavolo Product, as set forth in an Order Form or statement of work that references this Agreement and is entered into by the parties (collectively, “SOW”).

“Third Party Platform” means any third party service or platform that Customer elects to use with the Datavolo Product.

“User” means anyone that Customer allows to use its accounts for the Datavolo Product, consisting of Customer’s employees and contractors (solely for purposes of providing services to Customer).

2. Datavolo Product

2.1 Provision of Datavolo Product.  Subject to this Agreement, Datavolo will make the Datavolo Product available to Customer pursuant to this Agreement, the service level agreement attached in Exhibit A and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Datavolo Product (including a non-sublicensable license to install and use the Datavolo On-Prem Product, if applicable) for its internal business purposes during the applicable subscription term.  Customer may permit Users to use the Datavolo Product on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users’ actions through the Datavolo Product and their compliance with this Agreement. 

 

2.2  Data Security 

 

(a)  With respect to the Datavolo Cloud Product, Datavolo will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials.  In furtherance of the foregoing, Datavolo will maintain the administrative, physical and technical safeguards to protect the security of Customer Materials that are described in the Datavolo security page located at https://trust.datavolo.io/ (the “Security Page”) posted as of the Effective Date (and as the Security Page may be updated by Datavolo in a manner that does not materially decrease the applicable protections).

 

(b) To the extent that Datavolo processes any Personal Data (as defined in the DPA referenced below) contained in Customer Materials that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Datavolo Product, the Data Processing Addendum (“DPA”) currently available at: https://datavolo.com/legal is hereby deemed part of this Agreement and incorporated herein by reference.

 

2. 3 Customer Responsibilities

 

(a) Customer acknowledges that Datavolo’s provision of the Datavolo Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.

 

(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Datavolo Product and notify Datavolo promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Datavolo Product, (ii) backup Customer Materials, and configure Customer’s settings and features for the Datavolo Product, as set forth in the Documentation, and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Datavolo Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Datavolo will have no liability for such failure (including under any service level agreement).  As between the parties, Customer is responsible for the content and accuracy of Customer Materials.

 

(c) Customer will not use the Datavolo Product to transmit or provide to Datavolo any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).

 

2.4 Professional Services. If applicable, Datavolo will perform Professional Services as described in a SOW, which may identify additional terms or milestones for the Professional Services. Customer will give Datavolo timely access to Customer Materials reasonably needed for Professional Services, and Datavolo will use the Customer Materials only for purposes of providing Professional Services. Customer may use code or other deliverables that Datavolo furnishes as part of Professional Services only in connection with Customer’s authorized use of the Datavolo Product under this Agreement.

2.5 Datavolo AI Tools.  If Customer elects to use any features or functionality that utilize artificial intelligence technology or data models trained by machine learning, including Datavolo’s Copilot tool (collectively, “Datavolo AI Tools”), the use of such Datavolo AI Tools is subject to the following terms and conditions.  For purposes hereof, “Input” means any Customer Materials provided by Customer or Users to be processed by Datavolo AI Tools; and “Output” means any output generated and returned to Customer or its Users, or automatically generated and transmitted on behalf of Customer or its Users, by Datavolo AI Tools based on the Input.

      (a)  Input and Output.  Input and Output constitute Customer Materials hereunder. Customer must ensure that its Input, Output and use of Datavolo AI Tools do not violate any applicable law or infringe, violate, or misappropriate any proprietary rights. Customer acknowledges that due to the nature of machine learning and the technology powering Datavolo AI Tools, Output may not be unique, and Datavolo AI Tools may generate the same or similar output for third parties.  

     (b)  Other Restrictions.  Customer will not use Datavolo AI Tools: (i) to mislead any person that Output was solely human generated; or (ii) in violation of OpenAI’s Usage Policy, or any other third party terms, guidelines, policies or the like to which the Datavolo AI Tools link in connection with generation of Output.

    (c)  Disclaimers.  Notwithstanding anything herein, Datavolo does not make any warranty as to, and will have no liability with respect to, Datavolo AI Tools, Output, the results that may be obtained from the use of Datavolo AI Tools or the accuracy of any information obtained through Datavolo AI Tools, including with respect to the factual accuracy of any Output or suitability for Customer’s use case. Use of any material and/or data obtained through the use of any Datavolo AI Tools feature is at Customer’s sole risk. Customer should not rely on factual assertions in Output without independently fact checking their accuracy. No information or advice, whether oral or written, obtained by Customer from Datavolo or through Datavolo AI Tools creates any such warranty.

2.6 Affiliates.  Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form.  With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.  Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form. 

 

2.7 Free Trials; No-Charge Products.  Datavolo may offer certain Datavolo Products at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”).  Customer’s use of No-Charge Products is subject to any additional terms that Datavolo may specify.  Except as otherwise set forth in this Section, these Terms and Conditions apply to No-Charge Products.  Datavolo may modify or terminate Customer’s right to use No-Charge Products at any time.  NOTWITHSTANDING ANYTHING HEREIN OR OTHERWISE TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATAVOLO DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS, AND DATAVOLO’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.

 

3. Fees

 

3.1 Fees. Customer will pay Datavolo the fees set forth in the applicable Order Form.  Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.  If Customer disputes an invoice in good faith, it will notify Datavolo within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable.  Datavolo may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

 

3. 2 Late Payment.  Datavolo may suspend access to the Datavolo Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Datavolo has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Datavolo.

3. 3 Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Datavolo.  Customer will not withhold any taxes from any amounts due to Datavolo.

 

4. Proprietary Rights and Confidentiality

 

4. 1 Proprietary Rights.  As between the parties, Datavolo exclusively owns all right, title and interest in and to the Datavolo Product, Professional Services deliverables, System Data and Datavolo’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials and Customer’s Confidential Information.  “System Data” means data collected by Datavolo regarding the Datavolo Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Datavolo Product.  Subject to this Agreement, Datavolo hereby grants Customer a non-exclusive, non-sublicensable right and license to use the Professional Services deliverables solely as part of its permitted use of the Datavolo Product.

 

4. 2 Feedback.  Customer may from time to time provide Datavolo suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Datavolo Product.  Datavolo will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Datavolo will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.  All Feedback is provided “AS IS” and Datavolo will not publicly identify Customer as the source of Feedback without Customer’s permission.

 

4.3 Product Improvement and Aggregated Statistics.  Customer further agrees that, notwithstanding anything herein, Datavolo is hereby granted the right to aggregate, collect, retain and analyze Customer Materials and will be free (during and after the term hereof) to use anonymized Customer Materials to provide and improve Datavolo’s products and services.

 

5. Confidentiality; Restrictions

 

5.1 Confidentiality.  Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder.  However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of any Order Forms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

 

5.2 Technology Restrictions.  Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Datavolo Product; (b) attempt to probe, scan or test the vulnerability of the Datavolo Product, breach the security or authentication measures of the Datavolo Product without proper authorization or wilfully render any part of the Datavolo Product unusable; (c) use or access the Datavolo Product to develop a product or service that is competitive with Datavolo’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Datavolo Product or otherwise offer the Datavolo Product on a standalone basis, use the Datavolo On-Prem Product in an application service provider or managed service provider environment, or copy the Datavolo On-Prem Product onto any public or distributed network, except for an internal and secure private cloud computing environment; or (e) otherwise use the Datavolo Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

 

6. Warranties and Disclaimers

 

6.1 Mutual.  Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Datavolo Product.

 

6.2 Datavolo.  Datavolo warrants that (a) the Datavolo Product will perform materially as described in the Documentation and Datavolo will not materially decrease the overall functionality of the Datavolo Product during the applicable subscription term (the “Performance Warranty”), and (b) any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).  Datavolo will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Datavolo fails to do so within 60 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Datavolo Product or Professional Services, in which case Datavolo will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Datavolo Product or 30 days after delivery of the relevant Professional Services. These procedures are Customer’s exclusive remedies and Datavolo’s sole liability for breach of the Performance Warranty or Professional Services Warranty.

 

6.3 Customer.  Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Datavolo to use the same as contemplated hereunder.

 

6.4 DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  DATAVOLO DOES NOT REPRESENT OR WARRANT THAT THE DATAVOLO PRODUCT WILL BE ERROR-FREE.  DATAVOLO IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF.

 

7. Indemnification

 

7.1 Indemnity by Datavolo.  Datavolo will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Datavolo Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Datavolo) in connection with any such Claim; provided that (a) Customer will promptly notify Datavolo of such Claim, (b) Datavolo will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Datavolo may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Datavolo in connection therewith.  If the use of the Datavolo Product by Customer has become, or in Datavolo’s opinion is likely to become, the subject of any claim of infringement, Datavolo may at its option and expense (i) procure for Customer the right to continue using and receiving the Datavolo Product as set forth hereunder; (ii) replace or modify the Datavolo Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Datavolo will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Datavolo Product by Customer not in accordance with this Agreement; (C) modification of the Datavolo Product by or on behalf of Customer; (D) Customer Materials, (E) the combination, operation or use of the Datavolo Product with other products or services where the Datavolo Product would not by itself be infringing, or (F) with respect to Datavolo On-Prem Product, any failure by Customer to use a non-infringing workaround or modification that does not materially adversely affect the functionality or availability of the Datavolo Product (clauses (A) through (F), “Excluded Claims”).  This Section states Datavolo’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

 

7.2 Indemnification by Customer.  Customer will defend Datavolo against any Claim made or brought against Datavolo by a third party arising out of any Excluded Claims, and Customer will indemnify Datavolo for any damages finally awarded against Datavolo (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Datavolo will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Datavolo’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Datavolo of all liability) and (c) Datavolo reasonably cooperates with Customer in connection therewith.

 

8. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  

9. Termination

9.1 Term.  The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below.  The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.  If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to Datavolo within fourteen (14) days of the date of the initial Order Form.  

 

9.2 Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

 

9.3 Survival.  Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.  Upon expiration or termination of an Order Form, Customer will destroy any copies of Datavolo On-Prem Product provided under such Order Form.

 

10. General

 

10.1 Insurance.  Datavolo will, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $1,000,000 policy limit per occurrence, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Datavolo Product, with coverage limits of not less than $1,000,000 per claim or per occurrence/$1,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.

 

10.2 

Publicity.  Customer agrees that Datavolo may refer to Customer’s name and trademarks in Datavolo’s marketing materials and website; however, Datavolo will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).  If Customer does not agree to Datavolo’s use of Customer’s name or trademark in Datavolo’s marketing materials, Customer may opt-out of such use by providing written notice to Datavolo within fourteen (14) days of the date of the initial Order Form.

 

10.3 Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Upon any permitted assignment of this Agreement by Customer or other corporate transaction involving Customer that would materially increase its Datavolo Product usage, if an Order Form contains a subscription for an unlimited amount of usage for any component of the Datavolo Product, such subscription will, with respect to Customer or the successor entity, as applicable, be limited to the monthly average usage (in the prior 12 months, pro rated as needed) by Customer with respect to such component under such Order Form prior to such assignment or other transaction, except as otherwise agreed upon in writing by the parties.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

 

10.4Amendment.  Datavolo reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form.  It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal.  Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) Datavolo may specify that such modifications become effective during Customer’s then-current subscription term. If the effective date of such modifications is during Customer’s then-current subscription term and Customer objects to the modifications, then (as Customer’s exclusive remedy) Customer may terminate the affected Order Form upon written notice to Datavolo, and Datavolo will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term. To exercise this right, Customer must provide Datavolo with notice of its objection and termination within thirty (30) days of Datavolo providing notice of the modifications.  Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.  

 

10.5 Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

 

10.6 Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

 

10.7 Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

 

10.8 Governing Law.  This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

 

10.9 Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Datavolo Product account.  Notices to Datavolo must be sent to the following:

Datavolo, Inc.

8194 W Deer Valley Rd
Suite 106 – 610
Peoria, AZ 85382
Attn: Legal

10.10 Entire Agreement.  This Agreement (consisting of these Terms and Conditions and each Order Form and SOW) comprises the entire agreement between Customer and Datavolo with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Datavolo, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.  In the event of a conflict between these Terms and Conditions and an Order Form or SOW, the terms of the Order Form will control.

 

 

10.11 Force Majeure.  Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

 

10.12 Government Terms.  Datavolo provides the Datavolo Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Datavolo Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Datavolo Product was developed fully at private expense.

 

10.13 Interpretation.  For purposes hereof, “including” means “including without limitation”.

Exhibit A

SLA

Availability Commitment for Datavolo Cloud Product.

The Datavolo Cloud Product will be Available 99% of the time, measuredly on a calendar quarterly basis (the “Availability Commitment”).  “Availability” means that the Datavolo Cloud Product is accessible to Customer.  Availability measures will not include downtime resulting from:

• Pre-scheduled maintenance periods: Customer will receive at least 48 hours prior notification by email of pre-scheduled maintenance periods. Maintenance will be scheduled between 5pm and midnight Pacific Time. Pre-scheduled maintenance that is excluded from the Availability calculation will not exceed 3 periods per month.
• Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable efforts basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the Datavolo infrastructure.
• Outages of cloud data hosting provider: Customer will receive notification of outages as soon as reasonably practicable.

Datavolo will provide Customer with access to Availability status at https://status.datavolo.io.

Credit.

If Datavolo fails to achieve the above Availability for the Datavolo Cloud Product in any given calendar quarter, Customer may claim a credit that is credited against Customer’s usage in the immediately following calendar quarter, as set forth in the table below.

PERCENTAGE AVAILABILITY PER MONTH	CREDIT
99-100.0	N/A
97.0-98.99	1 x Average Daily Datavolo Credits
94.0-96.99	3 x Average Daily Datavolo Credits
92.0-93.99	5 x Average Daily Datavolo Credits
Below 92.0	7 x Average Daily Datavolo Credits

“Average Daily Datavolo Credits” means Customer’s actual Datavolo Cloud Product credit consumption in the calendar quarter in which the Availability Commitment was not met, divided by the number of days in such quarter.

Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations.  To receive a credit, a Customer must file a claim for such credit within five (5) days following the end of the month in which the Availability Commitment was not met by contacting Datavolo at support@datavolo.io with a complete description of the downtime, how Customer was adversely affected, and for how long.

The credit remedy set forth in this Service Level Agreement is Customer’s sole and exclusive remedy for the unavailability of the Datavolo Cloud Product.

Customer Support.

Datavolo live technical support business hours will start at 6:00 am Pacific Time and run until 4:00 pm Pacific Time on weekdays. Technical support can be contacted via email at support@datavolo.io or via shared channels in the customer communication platform.

Communication Channels:

EMAIL	PHONE	COMMUNICATION TOOL
[email protected]		Shared Datavolo Slack channel

Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1). Limited technical support will be available during the hours listed above during Datavolo U.S. federal holidays.

Issues regarding the Datavolo Product (“Product Issues”) are assigned a classification at the time of Customer’s initial contact with Datavolo, and are classified according to the severity levels set forth below. Datavolo will initially respond in accordance with the response times applicable to Product Issues reported during Datavolo’s regular service hours.  Failure to contact Customer within the response time period because the Customer is unavailable (e.g., phone busy, no answer, in a meeting, or out of the office) does not constitute Datavolo’s noncompliance with the response commitment. Customer will cooperate with Datavolo to provide reproducible results for any errors reported. Datavolo’s ability to provide support will depend, in some cases, on the ability of Customer’s representatives to provide accurate and detailed information and to aid Datavolo in handling a Product Issue. Customer will provide Datavolo with reasonable access to Customer’s systems, premises and staff as needed to provide support.

Product Issue Classification	Response Time	Next Steps
Severity 1 Critical Business Impact: Datavolo Product is not functioning or is stopped or severely impacted so that Customer cannot reasonably continue use of Datavolo Product and no workaround is available.	One business day	Once the Product Issue is verified, Datavolo will engage development staff during Datavolo’s business hours (but in no event later than 12 hours after the Product Issue is verified) until a Workaround is achieved.
Severity 2 Major Business Impact: Datavolo Product is functioning inconsistently causing significantly impaired Customer usage and productivity, such as periodic work stoppages and feature crashes	One business day	Once the Product Issue is verified, Datavolo will engage development staff during Datavolo’s business hours (but in no event later than 24 hours after the Product Issue is verified) until a workaround is achieved.
Severity 3 Minor Business Impact: Datavolo Product is functioning inconsistently causing slightly impaired Customer usage and productivity but Customer can work around such inconsistency or impairment.	Two business days	Once the Product Issue is verified, Datavolo will consider a workaround, if appropriate in Datavolo’s sole discretion, and Datavolo Product enhancements for such Product Issue for inclusion in a subsequent release.
Severity 4 No Business Impact: Datavolo Product is functioning consistently but Customer requests minor changes in Datavolo Product such as Documentation updates, cosmetic defects or enhancements.	Two business days	Once contact has been made with Customer, Datavolo will consider Datavolo Product enhancements for inclusion in subsequent releases.

Exclusions.

The Availability Commitment and customer support commitments above do not apply to any downtime or error of the Datavolo Product that results from:

• Account suspension or termination due to Customer’s breach of the Agreement;
• Modifications to the Datavolo Product made by or on behalf of Customer;
• Customer’s use of other than those most recent releases of the Datavolo On-Prem Product;
• Customer’s failure to use any error corrections or updates thereto provided to Customer by Datavolo to address such problem;
• Disengagement of functionality of the Datavolo Product due to Customer’s request;
• Force Majeure Events; or
• Customer’s or its service provider’s equipment, software or other technology.