Cloud Legal Terms of Service

This Agreement constitutes a legal agreement between Silk Inc. or Affiliate (“Silk”) and the party that has executed a quotation or purchase order that refers to or references this Agreement. This Agreement is an integral part of any such quotation or purchase order. By executing such quotation or purchase order, you agree to all the terms and conditions of this Agreement.

This “Agreement” consists of all of (1) the Master Terms and Conditions (the “Master Terms”); (2) the Subscription Terms and Conditions agreement attached as Exhibit A (the “Subscription Terms and Conditions” Exhibit) and (3) the Silk Software Support Terms and Conditions agreement attached as Exhibit B (the “Silk Software Support Terms and Conditions” Exhibit) and (4) the Professional Services Terms and Conditions Agreement attached as Exhibit C (the Professional Services Terms and Conditions” Exhibit) and (5) the Silk as A Service Terms and Conditions agreement attached as Exhibit D (the “Silk as A Service Terms and Conditions” Exhibit).

BY CLICKING “ACCEPT” OR BY EXECUTING OR CONFIRMING AN ORDER FORM TO WHICH THIS AGREEMENT HAS BEEN INCORPORATED, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THE AGREEMENT AND AGREE TO BE BOUND BY IT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO SILK THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY.

 

  1. Definitions. As used in this Agreement, the following terms shall be defined as follows:

 

 

  1. Scope of Agreement.

 

 

  1. Use of Silk Software.

 

 

 

  1. Invoicing and Payment.

 

 

  1. Silk Software Virtual Machines.

 

  1. Representations and Warranties; Support.

 

  1. Indemnification; Limitation of Liability.

 

7.1.              Indemnification by Silk.  Silk shall defend (or at its option settle), at its expense, any suit, claim or proceeding brought against Customer by a third party to the extent based upon a claim that Silk Software (but not including any Virtual Machines) infringes or misappropriates any currently existing United States (i) issued patent, (ii) registered trademark, (iii) registered copyright, and/or (iv) trade secret  held by a third party (“Infringement Claim”) and Silk will indemnify Customer against, and hold it harmless from, any cost, loss, damage or liability (including reasonable attorney’s fees) attributable to such suit, claim or proceeding that is finally awarded against Customer (or agreed to in settlement by Silk). If the use of the Silk Software is subject to an Infringement Claim or Silk reasonably believes it will be subject to such an Infringement Claim, Silk may, at its sole expense and option: (a) procure for the Customer the right to continue using the Silk Software as set forth in the Agreement; (b) replace the Silk Software with a non-infringing product of equivalent function and performance; or (c) modify the Silk Software to be non-infringing. If Silk elects not to employ any of the options contained in the previous sentence during the Term, Silk may terminate this Agreement and refund to Customer all pre-paid amounts in respect of unused periods. Silk has no liability or obligations under this Section 7.1  in respect of any claim arising from (i) any Virtual Machines or other hardware or cloud infrastructure, (ii) the use of the Silk Software not in compliance with this Agreement or the  applicable documentation for the Silk Software provided by Silk, (iii) Customer’s negligence or misapplication of the Silk Software, (iv) any unauthorized combination or interfacing of the Silk Software with other hardware or software, (v) any modification to the Silk Software performed by anyone other than Silk, or (vi) any other causes beyond the reasonable control of Silk. THIS SECTION 7.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.

7.2.              Indemnification by Customer. Customer agrees to indemnify, defend and hold harmless Silk and its directors, officers, employees, independent contractors, and/or affiliates (collectively, the “Silk Indemnified Parties”) from and against any cost, loss, damage or liability (including reasonable attorney’s fees) resulting from or arising out of any claim, suit, claim or proceeding brought by a third party against a Silk Indemnified Party relating to: (a) a breach or alleged breach by Customer of any of its representations, warranties, covenants or obligations hereunder; (b) Customer’s breach of applicable laws and regulations; (c) Customer’s infringement or misappropriation of any intellectual property rights or other rights of a third party; or (d) any gross negligence or willful misconduct of Customer or its Authorized Users or other representatives, including, without limitation any injuries or death to persons or damage to tangible property resulting therefrom.

7.3.              Indemnification Procedure. The indemnified party shall give the indemnifying party prompt written notice of any claim for indemnification hereunder; provided however, that indemnified party’s failure to do so shall not reduce or diminish the indemnifying party’s obligations hereunder except to the extent the indemnifying party has been adversely affected or prejudiced by such failure. The indemnified party shall have sole control of its defense or settlement of any indemnifiable claim hereunder, provided however, that the indemnified party shall not, without indemnified party’s prior written consent (which shall not be unreasonably withheld or delayed), settle any claim in a manner that admits liability on the part of the indemnified party.  The indemnified party shall reasonably cooperate with the indemnifying party (at the indemnifying party’s expense) in the defense as the indemnifying party may reasonably request (it being understood that nothing herein shall preclude the indemnified party from consulting with its own counsel at its own expense).

7.4.              Limitation of Liability.

7.4.1.     NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, IN NO EVENT SHALL SILK, ITS PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES, INSURERS, SUPPLIERS, DISTRIBUTORS OR LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, BUSINESS INTERRUPTION, DAMAGE TO BUSINESS REPUTATION, OR LOSS OF USE). THE MAXIMUM LIABILITY OF SILK AND ITS PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, REPRESENTATIVES, INSURERS, SUPPLIERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AVERAGE ANNUAL FEES PAYABLE BY CUSTOMER OVER THE COURSE OF THE APPLICABLE SUBSCRIPTION PERIOD UNDER THE QUOTE TO WHICH SUCH LIABILITY RELATES.

7.4.2.     SILK DOES NOT PROVIDE ANY VIRTUAL MACHINES, AND SILK SHALL NOT HAVE ANY LIABILITY IN RESPECT OF THE VIRTUAL MACHINES, THEIR OPERATION AND AVAILABILITY OR, ANY SERVICES PROVIDED BY THE CLOUD PROVIDER PROVIDING THE VIRTUAL MACHINE. SILK SHALL NOT BE RESPONSIBLE FOR (I) ANY ERROR, FAILURE OR DEFECT OF THE SILK SOFTWARE, AND/OR (II) FAILURE OR DELAY IN PERFORMING ITS OBLIGATONS HEREUNDER, TO THE EXTENT RESULTING FROM ANY UNAVAILABILITY, ERROR, DEFECT OR FAILURE OF THE VIRTUAL MACHINES AND/OR ANY FAILURE BY CUSTOMER TO MAINTAIN THE VIRTUAL MACHINES IN ACCORDANCE WITH THE TERMS HEREOF. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR AND ALL RISK ARISING FROM THE CONTENT, FUNCTIONALITY, OR AVAILABILITY OF ANY VIRTUAL MACHINES AND HEREBY WAIVES AND RELEASES SILK FROM ANY CLAIMS DIRECTLY OR INDIRECTLY RELATED THERETO.

  1. Data Protection and Privacy.

 

8.1.              The Customer acknowledges and agrees that the Silk Software reports and communicates to Silk’s Clarity™ software tool (“Clarity”) certain information relating to Customer’s usage of and access to the Silk Software, including, telemetry and information relating to Customer’s Provisioned Capacity and Number of Active c.nodes (collectively, “Usage Data”), but not any underlying data stored by Customer using the Solution. Customer shall not, and shall not permit any third party to, block or otherwise interfere with the communication of the Silk Software with Clarity.

8.2.              Except as necessary for Silk’s provision of the Silk As A Service, Silk and its authorized third party subcontractors shall not have access to any data stored by Customer using the Silk Software.

8.3.              Silk may aggregate and de-identify Usage Data (“Statistical Information”). Statistical Information shall not identify Customer or otherwise contain any individually identifiable information of Customer. Silk may use such Statistical Information for its internal business purposes, including, without limitation, to analyze and improve the Silk Software and other services and technology, and understand trends and customer needs. Silk may share such Statistical Information with its commercial partners.

  1. Intellectual Property and Confidentiality.

 

  1. Term and Termination.

 

  1. Miscellaneous.
    • Entire Agreement; Amendment; Waiver. The Agreement, the exhibits hereto and the Quote constitute the entire agreement between the Parties in respect of the subject matter hereof and supersede all other understandings or agreements relating to the subject matter hereof. The Agreement may only be amended by a writing signed by a duly authorized representative of each party. All waivers must be in writing. A waiver by either party of any of the obligations to be performed by the other party or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other obligation. If any provision of the Agreement shall be held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other severable provisions of the Agreement.
    • Relationship of the Parties. Nothing contained in the Agreement shall be construed to create a partnership, joint venture or other agency relationship between the parties.  Neither party has any authority to act on behalf of the other party or to enter into any contract, incur any liability or impose any legal obligation or to make any representation on behalf of the other party.
    • Publicity. Subject to the confidentiality obligations under Section 9 above and upon notification to Customer, Silk may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of Customer) and display the Customer’s logos and trademarks in Silk’s website and promotional or advertising literature, without the consent of Customer. Except as expressly provided herein, Silk shall not obtain any rights with respect to the Customer’s logos and/or trademarks.
    • Force Majeure. Except for Customer’s obligation to make payment of any fees due and owing hereunder, neither party will be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, acts of God, epidemic or pandemic, quarantine, war or other violence, or any law, order or requirement of any governmental authority (“Force Majeure”).  In the event any Force Majeure will continue or reasonably be expected to continue for more than thirty (30) calendar days, the party not claiming a Force Majeure is entitled to terminate the Agreement by written notice to the other
    • Governing Law; Venue. The Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts (without reference to the conflicts of law provisions of any jurisdiction that would require the application of the law of any other jurisdiction). Any claim, dispute or controversy arising under or in connection with the Agreement shall be finally settled by binding arbitration in Boston, Massachusetts under the then current rules of Judicial Arbitration and Mediation Services, Inc. or any successor entity thereto (“JAMS”) by one (1) arbitrator appointed in accordance with such rules. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The costs of the arbitration, including administrative and arbitrator’s fees, shall be shared equally by the parties. Each party shall bear the cost of its own attorneys’ fees and expert witness fees. Nothing in this Section 11.5 shall preclude either party from seeking interim or provisional relief in the form of a temporary restraining order, preliminary injunction, or other interim relief concerning a dispute prior to or during an arbitration pursuant to this Section 11.5 necessary to protect the interests of such party.
    • Assignment; Change of Control; Subcontractors. Neither party may assign or transfer (whether in the context of a merger, consolidation, securities sale, asset sale or otherwise) the Agreement or its rights or obligations under the Agreement to any third party without the prior written consent of the other party; provided that: (a) Silk may assign or transfer the Agreement or its rights or obligations under the Agreement to any of its Affiliates without the prior written consent of the Customer; and (b) a party may assign or transfer the Agreement or its rights or obligations under the Agreement to any third party without the prior written consent of the other party in connection with a change of control of such party, provided that the assignor shall provide the other party with written notice of such assignment.  Assignments in violation of the foregoing shall be void.  If Customer assigns this Agreement to a direct competitor of Silk, Silk may terminate this Agreement with written notice within 30 days of receiving notice of such assignment. Customer acknowledges and agrees that Silk may subcontract the performance of its obligations under this Agreement, provided that such subcontracting will not release Silk from its obligations under this Agreement.
    • Counterparts. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.
    • Interpretation. The parties acknowledge and agree that: (a) each party and its counsel reviewed and negotiated the terms and provisions of the Agreement and have contributed to its revision; (b) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of the Agreement; and (c) the terms and provisions of the Agreement shall be construed fairly as to all parties and not in favor of or against any party, regardless of which party was generally responsible for the preparation of the Agreement. Any capitalized terms used in the exhibits and not defined therein shall have the meaning set forth in the body of this Agreement.

IN WITNESS WHEREOF, the parties have duly executed this Agreement (including all of its Exhibits) as of the Effective Date.

SILK TECHNOLOGIES INC. [INSERT FULL LEGAL NAME OF CUSTOMER]
 
Signature: _____________________________ Signature: _____________________________
Printed Name: __________________________ Printed Name: __________________________
Title: __________________________________ Title: __________________________________

Exhibits:

Exhibit A Subscription Terms and Conditions

Exhibit B – Silk Software Support Terms and Conditions

Exhibit C – Professional Services Terms and Conditions

Exhibit D – Silk as A Service Terms and Conditions

 

 

 

EXHIBIT A: SUBSCRIPTION TERMS AND CONDITIONS

  1. Definitions
    • Actual Monthly Capacity” means the Customer’s Provisioned Capacity at the Capacity Highwater Mark.
  1. Pre-Paid Subscription

If pursuant to the applicable Quote, Customer has purchased a Pre-Paid Subscription to the Silk Software, the following terms and conditions shall apply:

  1. Pay-As-You-Go Subscription

If pursuant to the applicable Quote, Customer has purchased a Pay-As-You-Go Subscription to the Silk Software, the following terms and conditions shall apply:

 

EXHIBIT B: SILK SOFTWARE SUPPORT TERMS AND CONDITIONS

Silk shall provide support in respect of the Silk Software pursuant to the terms and conditions of these Silk Software Support Terms and Conditions (“Support Services”).

  1. Problem Correction and Response Times.

 

 

Case Severity Definition Enterprise Subscription TRO

 

Extract and Protect Subscription TRO Standard Subscription TRO
Severity 1 – Critical Silk Software is not serving data.

 

Within 30 min Within 60 min Within 90 min
Severity 2 – High Silk Software is serving data with meaningful impact on business operations.

 

Within 2 hours Within 4 hours Within 6 hours
Severity 3 – Medium Silk Software is experiencing an anomaly, or unexpected behavior which leads to an inconvenience, but has little or no impact on the customer business operations.

 

Within 12 hours Within 24 hours Within 36 hours
Severity 4 – Low Information/technical question

 

With one Business Day With two Business Days With two Business Days
  1. Customer’s Responsibilities. Silk’s provision of the Silk Support Services is subject to the Customer’s compliance with the terms and conditions of this Agreement, including the following:
  1. Definitions.

 

 

 

 

 

EXHIBIT C: PROFESSIONAL SERVICES TERMS AND CONDITIONS

 

  1. Services.

 

 

  1. Customer Obligations.

 

  1. Intellectual Property.

 

 

  1. Representation and Warranties.

 

  1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PROFESSIONAL SERVICES AND ANY RELATED DELIVERABLES AND OTHER MATERIALS SILK PROVIDES IN CONNECTION THEREWITH ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED THEREFROM.

 

  1. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter (“Restrictive Period”), Client shall not directly or indirectly solicit, cause, induce, or encourage, or attempt to solicit, cause or induce or encourage, any employee or contractor of Silk to leave his or her employment or engagement with Silk, or hire or otherwise engage the services of any such employee or contractor of Silk.

 

  1. Survival. Sections 2.1, 2.4, 3, 5 and 6 of this Exhibit C shall survive any termination or expiration of this Agreement and/or any Quote hereunder.

 

EXHIBIT D: SILK AS A SERVICE TERMS AND CONDITIONS

 

  1. Services.

 

 

  1. Customer Obligations.

 

  1. Intellectual Property.

 

 

  1. Representation and Warranties.

 

  1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SILK AS A SERVICE AND ANY RELATED DELIVERABLES AND OTHER MATERIALS SILK PROVIDES IN CONNECTION THEREWITH ARE PROVIDED WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ANY RESULTS TO BE ACHIEVED THEREFROM.

 

  1. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter (“Restrictive Period”), Client shall not directly or indirectly solicit, cause, induce, or encourage, or attempt to solicit, cause or induce or encourage, any employee or contractor of Silk to leave his or her employment or engagement with Silk, or hire or otherwise engage the services of any such employee or contractor of Silk.

 

  1. Privacy. Each party hereby agrees to adhere to the Data Processing Addendum attached hereto as Schedule 2.

 

  1. Survival. Sections 1, 2.4, 3, 5 and 6 of this Exhibit D shall survive any termination or expiration of this Agreement and/or any Quote hereunder.

Schedule 1

Silk As A Service SLA

  1. Service Requests.

 

Severity Level Definition
Severity 1 – Critical Silk Software or DBaaS is not serving data.

 

Severity 2 – High Silk Software or DBaaS is serving data with meaningful impact on business operations.
Severity 3 – Medium Silk Software or DBaaS is experiencing an anomaly, or unexpected behavior which leads to an inconvenience, but has little or no impact on the Customer’s business operations.
Severity 4 – Low Information/technical question
Severity Level Enterprise Subscription TRO Extract and Protect Subscription TRO Standard Subscription TRO
Severity 1 – Critical Within 30 min Within 60 min Within 90 min
Severity 2 – High Within 2 hours Within 4 hours Within 6 hours
Severity 3 – Medium Within 12 hours Within 24 hours Within 36 hours
Severity 4 – Low Within 1 Business Day Within 2 Business Days Within 2 Business Days
  1. Customer’s Responsibilities.

 

  1. Definitions.

 

Schedule 2

Data Processing Addendum

This Addendum consists of three parts:

Parts One, Two, and Three apply only to Silk’s processing personal data or personal information as a Processor (as defined in the GDPR or state privacy laws in the U.S.), or a Service Provider (as defined in the CCPA), acting on behalf of the Customer and under the Customer’s instructions. Parts One, Two, and Three do not apply to Silk’s processing of processing personal data or personal information of Customer’s representatives to market or promote its products, or to administer the business or contractual relationship between Silk and Customer.

The parties’ liability under this Addendum shall be pursuant to the liability clauses in the various parts of the Agreement.

 

PART ONE

  1. This Part One applies to the processing of personal information or personal data by Silk within the scope identified in the preamble of this Addendum.
  2. Definitions
    1. Capitalized terms used in this Part One but not defined in this Part One have the meaning ascribed to them in the Agreement and the Addendum.
    2. “Applicable State Privacy Laws” means the CPRA and in other applicable state privacy laws in the United States, such as (but not limited to): Virginia Consumer Data Protection Act, Connecticut Act Concerning Personal Data Privacy and Online Monitoring, Utah Consumer Privacy Act, and the Colorado Privacy Act.
    3. “Consumer” means a natural person, including a natural person in their professional or work capacity.
    4. “CPRA” means Cal. Civ. Code §1798.100 et seq. and the regulations at 11 C.C.R. §7000 et seq.
    5. “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
    6. “Collect” (and its cognate terms) means buying, renting, gathering, obtaining, receiving, or accessing any Personal Information pertaining to a Consumer by any means. This includes obtaining information from the Consumer, either actively or passively, or by observing the Consumer’s behavior or interaction.
    7. “Process” (and its cognate terms) means any operation or set of operations that are performed on Personal Information or on sets of personal information, whether or not by automated means.
    8. “Sell” (and its cognate terms) means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a Consumer’s Personal Information for monetary or other valuable consideration.
    9. “Share” (and its cognate terms) means sharing, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a Consumer’s Personal Informationfor cross-context behavioral advertising, whether or not for monetary or other valuable consideration, including transactions for cross-context behavioral advertising  in which no money is exchanged.
  3. Silk’s Obligations. The Parties acknowledge and agree that Silk is a ‘service provider’ and ‘processor’ within the meaning of the terms in Applicable State Privacy Laws. To that end, and unless otherwise requires by law:
    1. Silk shall not Sell or Share any Personal Information it Collects.
    2. The parties agree that Customer is disclosing the Personal Information to Silk only for the following limited and specified business purposes: to provide the Silk As A Service.
    3. Silk is prohibited from retaining, using, or disclosing the Personal Information that it Collects for any commercial purpose other than the foregoing business purposes, unless expressly permitted by Applicable State Privacy Laws and this Part One. Additionally, Silk is prohibited from retaining, using, or disclosing the Personal Information that it Collects pursuant to this Agreement outside the direct business relationship between Silk and Customer, unless expressly permitted by Applicable State Privacy Laws and this Part One.
    4. Silk shall comply with all relevant sections of Applicable State Privacy Laws and shall provide, with respect to Personal Information it Collects, the same level of privacy protection as required by Applicable State Privacy Laws.
    5. Silk grants Customer the right to take reasonable and appropriate steps to ensure that Silk uses the Personal Information it Collects in a manner consistent with the obligations under this Part One and the CPRA.
    6. Silk must promptly notify Customer when it makes a determination that it can no longer meet its obligations under this Part One or Applicable State Privacy Laws.
    7. Silk grants Customer the right, upon notice, to take reasonable and appropriate steps to stop and remediate Silk’s unauthorized use of Personal Information.
    8. If Silk receives a request from a Consumer about his or her Personal information, Silk shall not comply with the request itself, inform the Consumer that Silk’s basis for denying the request is that the Silk is merely a service provider that follows Customer’s instruction, and inform the consumer that they should submit the request directly to the Customer and provide the Consumer with the Customer’s contact information.
  4. Subcontracting to suppliers. Customer authorizes Silk to subcontract any of its Platform-related activities which involve the Processing of Personal Information or requiring Personal Information to be Processed by any third party supplier, provided that Silk after provides the Customer an opportunity to object on reasonable grounds to the use of a third party supplier and ensures that the third party is bound by obligations consistent with this Part One. Customer consents to Silk using the third party suppliers listed in Part 2 below.
  5. Return or deletion of information. Upon Customer’s written request where no subsequent further Processing is required, Silk shall, at the instruction of Customer, either delete, or return to Customer, some, or all (however instructed) of the of the personal information that it and its third party suppliers Process for Customer.
  6. Assistance in responding to consumer requests. Silk shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the Consumer rights under Applicable State Privacy Laws.
  7. Data security. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Silk’s Processing of Personal Information for Customer, as well as the nature of personal information Processed for Customer, Silk will implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure (including data breaches).

PART TWO

This Part Two only applies within the scope identified in the preamble of this Addendum.

  1. Customer commissions, authorizes, and requests that Silk provide Customer the Silk As A Service, which involves Processing Personal Data (as these capitalized terms are defined and used in the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), and in applicable national law implementing the GDPR, or in any subsequent superseding legislation; these shall collectively be referred to as “Data Protection Law”).
  2. Customer is solely responsible for determining the lawfulness of the data processing instructions it provides to Silk and shall provide Silk only instructions that are lawful under Data Protection Law.
  3. Additional instructions of the Customer outside the scope of the Silk As A Service require prior and separate agreement between Customer and Silk, including agreement on additional fees (if any) payable to Silk for executing such instructions. If Silk materially fails to follow Customer’s reasonable instructions outside the scope of the Silk As A Service, then Customer may terminate this Addendum and the Agreement, without liability for such premature termination.
  4. Customer and Silk hereby assent to the Annex to Commission Implementing Decision (EU) 2021/914 of 4 June 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 (“SCCs”), in its MODULE TWO, as follows:
    • In Section II (Obligations of the Parties), Clause 9(a) for MODULE TWO: Transfer controller to processor: The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 14 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
    • In Section IV (Final Provisions), Clause 17 for MODULE TWO: Transfer controller to processor: The Parties agree that this shall be the EU member state in which the Customer is established, or, if the Customer is not established in any EU member state, then the law of the Republic of Ireland.
    • In Section IV (Final Provisions), Clause 18(b) for MODULE TWO: Transfer controller to processor: The Parties agree that those shall be the courts of the EU member state’s town in which the Customer is established, or, if the Customer is not established in any EU member state, then the courts of Dublin, Ireland.
    • In Annex I, for MODULE TWO: Transfer controller to processor:
      • Data Exporter: Customer.
        • Activities relevant to the data transferred under these Clauses: a company using the Silk As A Service.
        • Role: Controller.
      • Data Importer: Silk
        • Activities relevant to the data transferred under these Clauses: provider of the Silk As A Service.
        • Role: Processor.
      • Description of Transfer:
        • Categories of data subjects whose personal data is transferred: [DATA SUBJECTS IN CUSTOMER’S DB RECORDS].
        • Categories of personal data is transferred: [DATA IN DB RECORDS].
        • Sensitive data transferred: [ ].
        • The frequency of the transfer: on a continuous basis.
        • Nature of the processing: collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, use, disclosure by transmission, erasure.
        • Purpose(s) of the data transfer and further processing: the provision of the Silk As A Service.
        • The period for which the personal data will be retained: the period set out in the Agreement.
        • Transfers to (sub-) processors:
SUB-PROCESSOR ADDRESS LOCATION OF DATA PROCESSING AND DATA TRANSFER MECHANISM USED PURPOSE OF DATA PROCESSING
Navisite LLC 400 Minuteman Rd,

Andover, MA 01810

United States

USA, SCCs Silk As A Service
  1. In the event that the foregoing mechanism for cross-border data transfers is invalidated by court or any decision of a competent authority under Data Protection Law, the parties shall discuss in good faith and agree such variations (such agreement not to be unreasonably withheld or delayed) to this Addendum as are required to enable a valid cross-border data transfers. In the event the parties are unable to agree on such variations, despite good faith efforts, either party may terminate the Agreement by providing written notice to the other party, without cost or liability for such premature termination. Further, in the event that the European Commission establishes processor to processor standard contractual clauses, the parties will enter into those clauses as promptly as reasonably practicable.
  2. If Silk’s assistance to Customer under Clause 10 of the SCCs entails material costs, expenses, or resources to Silk, then the parties shall first discuss and agree on the fees payable to Silk for such assistance.
  3. Audit and inspections conducted under Clause 8.9 of the SCCs shall be conducted during ordinary business hours of Silk and with minimal disruption to Silk’s ordinary course of business, shall not extend to any activities of Silk with other customers or parties, and if conducted by an independent auditor, such auditor shall be made subject to appropriate confidentiality undertakings satisfactory to Silk. If such inspections or audits entail material costs, expenses, or resources to Silk, then the parties shall first discuss in good faith and agree on the fees payable to Silk for such inspections or audits.

 

PART THREE

Customer and Silk hereby assent to the Annex to the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses of 21 March 2022 issued under Section 119A of the UK Data Protection Act 2018, available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf (“UK SCCs”), as follows:

Section of the UK SCCs Content
Table 1 – Start Date The Effective Date of the Agreement
Table 1 – Parties’ details
Exporter (who sends the Restricted Transfer) Importer (who receives the Restricted Transfer)
Full legal name: As set forth in the Agreement.

Main address (if a company registered address): As set forth in the Agreement.

Full legal name: As set forth in the Agreement.

Main address (if a company registered address): As set forth in the Agreement.

Table 1 – Key Contact
As set forth in the Agreement. As set forth in the Agreement.
Table 2 – Addendum EU SCCs The version of the Approved EU SCCs in Part Two above, including the Appendix Information.

Date: The Effective Date of the Agreement

Reference (if any): Part Two

Table 3 – Appendix Information Annex 1A: List of Parties: see Part Two

Annex 1B: Description of Transfer: see Part Two

Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data:  ISO 27001 certification.

Table 4 – Table 4: Ending this Addendum when the Approved Addendum Changes Which Parties may end this Addendum:

Importer

Exporter

neither Party