2.                      SUBSCRIPTIONS TO THE SERVICE

2.1                 Subscriptions. Customer may add additional Subscriptions during a Subscription Term at the same price as found in the applicable Service Order. Added Subscriptions will be co-terminated with existing subscriptions and fees for added Subscriptions pro-rated.

2.1                 Usage Limits. Subscriptions for the Service are limited to the quantities specified in the applicable Service Order. Each Subscription refers to an individual User. The Service may not be accessed by more Users than reflected by the number Subscriptions in a Service Order. A Subscription may be reassigned to a different User by Customer. If Customer exceeds its Subscriptions to the Service, Customer will, upon Consensus’ request, promptly execute a Service Order for sufficient additional Subscriptions to comply with the Agreement. Customer will pay Consensus’ invoice for the excess usage according to the Agreement.

2.2                 Beta Services. Consensus may invite Customer to try Services that are not generally available to customers (“Beta Services”) at no charge. Customer is under no obligation to use Beta Services. Beta Services will be clearly designated. Beta Services are: a) for evaluation purposes only and not for production use, b) are not considered a “Service” under the Agreement, and c) are not supported by the terms of Appendix 1. Consensus may discontinue Beta Services at any time. Beta Services are provided “as-is” without warranty, and notwithstanding Section 11, Consensus will have no liability for any claim arising from Customer’s, its Affiliates’, or Users’ use of Beta Services.

2.3                 Connected Applications. The Service contains features designed to interoperate with Connected Applications. To use such features, Customer or its Users may be required to obtain access to such Connected Applications from their providers, and grant Consensus access to Customer’s or its Users’ account(s) on such Connected Applications. If Customer uses a Connected Application with the Service, Customer grants Consensus permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Service.

2.4                 Disclaimer. Consensus provides interoperability with Connected Applications as a courtesy and not part of the Subscription. Consensus makes no warranty or guarantee as to the interoperability or availability of any Connected Applications and Customer’s use of any such Connected Applications is wholly at Customer’s own risk. Consensus may terminate interoperability with Connected Applications at any time in Consensus’ sole discretion, after providing Customer commercially reasonable notice. Any acquisition by Customer of Connected Applications, and any exchange of Customer Data between Customer and any Connected Application provider, product, or service, is solely between Customer and the applicable Connected Application provider. Consensus does not warrant or support Connected Applications. Consensus is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Connected Application or its provider.

3.                     CONSENSUS RESPONSIBILITIES

Access to the Service. During the Term Consensus will: (a) make the Service available to Customer according to the Agreement and applicable Service Order(s), (b) maintain appropriate safeguards to protect the security, confidentiality and integrity of Customer Data, (c) remain responsible for the performance of Consensus’ personnel (including Consensus’ subcontractors) and their compliance with Consensus’ obligations under this Agreement.

4.                     CUSTOMER LIMITATIONS/RESPONSIBILITIES

4.1                 Limitations. Customer will not: (a) except in the case of Customers who purchase the Channel Accelerator module, resell, sublicense, rent, loan, lease, time share or otherwise make the Service available to any party not authorized to use the Service under the Agreement or an applicable Service Order; (b) modify, adapt, alter, translate, copy, or create derivative works based on the Service; (c) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Service (unless such right is granted by applicable law and then only to the minimum extent required by law); (d) access the Services in order to: (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Service; (e) merge or use the Service with any software or hardware for which they were not intended (as described in the Documentation); (f) allow Users to share access credentials; (g) use the Service for unlawful purposes or to store unlawful material; (h) use the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (i) disrupt the integrity or performance of the Service; (j) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Consensus or its suppliers contained on or within any copies of the Service, (k) bypass any security measure or access control measure of the Service, (l) use the Service other than as described in the Documentation, or (m) perform or disclose any benchmarking or testing of the Service itself or of the security environment or associated infrastructure without Consensus’ prior written consent. Consensus may, without limiting its other rights and remedies, suspend Customer’s and/or applicable Users’ access to the Service at any time if: (i) required by applicable law, (ii) Customer or any User is in violation of the terms of this Agreement, or (iii) Customer’s, or a User’s use disrupts the integrity or operation of the Service or interferes with use of the Service by others. Consensus will use reasonable efforts to notify Customer prior to any suspension, unless prohibited by applicable law or court order, and Consensus will promptly restore Customer’s access to the Service upon resolution of any violation under this section. If Consensus is notified that any Customer Data violates applicable law or third-party rights, Consensus may so notify Customer and in such event Customer will promptly remove such Customer Data from the Service. If Customer does not take required action, Consensus may disable the applicable Customer Data until the potential violation is resolved.

4.2                 Customer Responsibilities. Customer will: (a) at all times remain responsible for Users’ compliance with the Agreement and will promptly notify Consensus of any unauthorized access to the Service arising from a compromise or misuse of Customer’s or its User’s access credentials, (b) use the Services only in accordance with the Documentation, applicable laws, and government regulations, (c) comply with terms of service of any Non-Consensus Applications Customer uses in conjunction with the Service, and (d) remain responsible for any action in violation of the Agreement by Customer’s Affiliates or Users.

5.                    DATA RESPONSIBILITIES

5.1                Compliance With Applicable Laws.  Customer is exclusively responsible for: a) determining what data Customer submits to the Service, b) for obtaining all necessary consent and permissions for submission of Customer Data and related data processing instructions to Consensus, c) for the accuracy, quality and legality of Customer Data, and d) that Customer complies in all respects with applicable data privacy and protection regulations.  Customer shall ensure that it is entitled to transfer the relevant Customer Data to Consensus so that Consensus and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf.  No rights to the Customer Data are granted to Consensus hereunder other than as expressly set forth in this Agreement.

5.2                 Excluded Data.  Customer shall not provide Consensus with any Customer Data that is subject to heightened security requirements by law, regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Health Insurance and Portability and Accountability Act (HIPPA), Family Educational Rights and Privacy Act (FERPA), the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Customer Data collectively, “Excluded Data”). Consensus shall have no responsibility or liability for Excluded Data.

6.                  INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

6.1              Reservations of Rights. Access to the Service is sold on a subscription basis. Except for the limited rights expressly granted to Customer hereunder, Consensus reserves all rights, title, and interest in and to the Service, the underlying software, the Consensus Materials and any and all improvements (including any arising from Customer’s feedback), modifications and updates thereto, including without limitation all related intellectual property rights inherent therein. Where Customer purchases Professional Services hereunder, Consensus grants to Customer a non-sublicensable, non-exclusive license to use any materials provided by Consensus as a result of the Professional Services (the “Consensus Materials”) solely in conjunction with Customer’s authorized use of the Service and in accordance with this Agreement. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Nothing in this Agreement will impair Consensus’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Customer may develop, produce, market, or distribute.

6.2                Ownership and Processing of Customer Data. Customer and/or its licensors shall retain all right, title and interest in all Customer Data stored in the Service, including any revisions, updates or other changes made to that Customer Data. Customer grants Consensus a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data: (a) solely for the purpose of providing the Service and Professional Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer’s direction or request, enable integrations between Customer’s Connected Applications and the Service; and (d) as otherwise required by applicable law.

6.3              Use of Aggregate Information. Consensus may collect, anonymize, and aggregate data derived from the operation of the Service (“Aggregated Data”), and Consensus may use such Aggregated Data for purposes of operating Consensus’ business, monitoring performance of the Service, and/or improving the Service. Consensus’ use of Aggregated Data as described in this section shall not result in any unauthorized disclosure of Customer Data, Customer Confidential Information, or personally identifiable information of Authorized Users. Aggregated Data will not be capable of re-identification. Aggregated Data belongs to Consensus.

6.4            Ownership of Deliverables. Consensus owns all rights, title, and interest in and to the intellectual property rights of deliverables or work product resulting from any of the Professional Services (“Deliverables”), and grants to Customer a non-exclusive, worldwide right and license to use such Deliverables in connection with Customer’s permitted use of the Service.

6.5            Feedback. Customer grants to Consensus a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Users relating to the features, functionality or operation of the Service or the Professional Services (“Feedback”). Feedback does not include Customer Data. Notwithstanding any other term herein, Feedback shall not create any confidentiality obligation for Consensus.

7.              PAYMENT; TAXES

7.1          Fees/Payment. Customer will pay Consensus’ invoice for all items identified on a Service Order regardless of Customer’s actual use of any product. Customer will pay in the currency listed in the Service Order. All fees are due in advance and must be paid no later than thirty (30) days from the date of the invoice. Fees are non-cancelable and non-refundable (except as provided herein). Customer may not decrease the number of Subscriptions during a Subscription Term. Consensus reserves the right to suspend the Service in the event Customer is more than thirty (30) days past due on any undisputed invoice and fails to cure the payment deficiency within ten (10) days of receiving written notice from Consensus. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

7.2            Taxes. All fees are exclusive of taxes, levies, or duties, (“Taxes”), and unless Customer can provide a valid state sales/use/excise tax exemption certificate (or other reasonable evidence of exemption) to Consensus, Customer will be responsible for payment of all such Taxes excluding taxes based solely on Consensus’ income. Consensus may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. Consensus reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other location information for Customer’s use of the Service. Customer will be responsible for any Taxes, penalties or interest arising from inaccurate or incomplete information provided by Customer. If Customer is required by any governmental authority to deduct any portion of the amount invoiced by Consensus, Customer shall increase payment by an amount necessary for the total payment to Consensus to be equal to the amount originally invoiced.

8.            CONFIDENTIAL INFORMATION

8.1            Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, a party’s pricing, product roadmap, product plans, or strategic marketing plans, algorithms, business plans, customer lists, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, processes, products, research, specifications, software, source code, trade secrets or any other non-public information relating to the Service including the Documentation. Recipient may disclose Discloser’s Confidential Information only to Recipient’s Affiliates, employees, officers, directors, advisors or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.

8.2              Exclusions. “Confidential Information” does not include information that: (a) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; (e) Discloser agrees in writing is free of such restrictions; or (f) is generally disclosed by the Discloser to third parties without a duty of confidentiality.

8.3            Duties Regarding Confidential Information.  At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser’s Confidential Information confidential and not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or as expressly permitted in this Agreement, and (b) not use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice (if legally permissible) to enable Discloser to seek appropriate protection of the Confidential Information and discloses only that portion of the Confidential Information that the Recipient is legally compelled or is otherwise legally required to disclose.  Any prior non-disclosure agreement executed among the parties is terminated in favor of these confidentiality terms.

8.4          Unauthorized Disclosures. The parties agree that Recipient’s threatened or actual unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond.  Any such injunction shall be additional to other remedies available to Discloser at law or in equity.

9.              WARRANTIES AND DISCLAIMER

9.1          General Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement and the performance by such party of its obligations and duties hereunder will not violate any agreement to which such party is bound.

9.2            Consensus Warranties. Consensus represents and warrants that: (a) if it provides Professional Services it will use reasonable skill and care, (b) the Service will perform materially in accordance with the Documentation under normal use and circumstances, and (c) it has taken commercially reasonable measures to ensure the Service is free from, and will not transmit, any malicious or hidden mechanisms or code designed to damage or corrupt Customer’s Data or network systems.

9.3          Customer Warranties. Customer represents and warrants that: (a) it has the right to provide Consensus with access to all Customer Data, (b) it shall obtain from its Users all consents required under law regarding the use of the Customer Data and Feedback as described in this Agreement.

9.4        Warranty Claims. Except for the Customer’s right to terminate in accordance with Section 12.3, Consensus’ sole responsibility and Customer’s exclusive remedy in the event of any material failure to the warranties expressly stated in Section 9, shall be that Consensus shall make commercially reasonable efforts to remedy any resulting deficiencies.

9.5       Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT OTHER WARRANTY OF ANY KIND, AND CONSENSUS MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE AND PROFESSIONAL SERVICES. CONSENSUS SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, CONSENSUS DOES NOT WARRANT THE SERVICE WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED. THE SERVICE AND MATERIALS ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.

10.               INDEMNIFICATION

10.1          Indemnification by Consensus. If a third party initiates or threatens a legal action alleging that Customer’s use of the Service directly infringes the third party’s patent, copyright, or trademark (such action, a “Claim”), then Consensus will (a) promptly assume the defense of the Claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Customer (without right of appeal) or in a settlement approved by Consensus that are attributable to Customer’s use of the Service; provided that Customer: (i) is current in the payment of all applicable fees, or becomes current, prior to requesting indemnification, (ii) notifies Consensus in writing of the Claim promptly after receipt of the Claim (but in no case later than fifteen (15) days), (iii) allows Consensus to sole control the defense of the Claim with counsel of Consensus’ choice, and to settle such Claim at Consensus’ sole discretion (wherein Customer will have the right to approve the portion of any settlement which requires payment by Customer or requires Customer to admit liability), and (iv) reasonably cooperates with Consensus in defending the Claim.

10.2            Other Resolution. If the Service becomes the subject of any actual or anticipated third party infringement claim, Consensus may, at its sole option and expense, either: (i) procure for Customer the right to continue using the affected Service consistent with this Agreement, (ii) replace or modify the affected Service with a functionally equivalent service that does not infringe, or, (iii) if neither (i) nor (ii) is available on a commercially-feasible basis, terminate the Agreement and applicable Service Order and refund any prepaid fees for all unused portions of the then-current Subscription Term as of the date of termination.

10.3          Exclusions. Consensus will have no liability for any Claim based upon: (a) any third-party components or services (including Connected Applications), (b) any unauthorized use of the Service in violation of this Agreement or applicable Service Order, (c) Consensus’ compliance with designs, specifications or instructions provided by Customer where those designs, specifications or instructions cause the infringement, or (d) use by Customer after notice by Consensus to discontinue using all or part of the Service. This section constitutes the entire liability of Consensus, and Customer’s sole and exclusive remedy, with respect to any third-party claims of infringement or misappropriation of intellectual property rights.

10.4        Indemnification By Customer. If a third party initiates or threatens legal action against Consensus for processing Customer Data uploaded into the Service by Customer or Users, or for a claim relating to Customer’s, or a User’s breach of its obligations under Section 4 and/or 5, where such claim arises solely from Consensus operating the Service, then Customer will: (a) promptly assume the defense of the claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Consensus (without right of appeal) or in a settlement approved by Customer that are attributable to Consensus processing of such Customer Data to provide the Service; provided that Consensus (i) notifies Customer in writing of the claim promptly after receiving it, (ii) allows Customer to control the defense of the claim with counsel of its choice, and to settle such claim at Customer’s sole discretion (unless the settlement requires payment by Consensus or requires Consensus to admit liability, in which case Consensus will have the right to approve such payment or admission), and (iii) reasonably cooperates with Customer in defending the claim at Customer’s expense.

11.              LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES.

11.1        DISCLAIMER OF INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES OR ITS LICENSORS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT (INCLUDING ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOLUTION), WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2          LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S (OR ITS AFFILIATES’) AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE WILL EXCEED THE AMOUNTS PAID OR OWED TO CONSENSUS BY CUSTOMER IN THE AGGREGATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE CAUSED BY NEGLIGENCE, OR FOR FRAUD. NOTHING IN THIS SECTION WILL LIMIT THE FEES OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICE OR PROFESSIONAL SERVICES, OR FOR VIOLATING CUSTOMER’S OBLIGATIONS IN SECTION 4 AND 5. THE PARTIES ACKNOWLEDGE THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT, AND THAT CONSENSUS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

12.            TERM AND TERMINATION

12.1      Subscription Term.  The Subscription Term begins on the Subscription Start Date and remains in effect for the Subscription Term as specified on the applicable Service Order. At the end of the Subscription Term, the Subscription will automatically renew for additional Subscription Terms equal to the expiring Subscription Term, unless either party notifies the other of its intent not to renew such Subscription at least ninety (90) days before the expiration of the then-current Subscription Term. Non-renewal notice must be provided by email to clientsuccess@goconsensus.com or to the notice address specified in Section 14.

12.2        Effective Date and Term. This Agreement commences on the Effective Date and shall remain in effect until terminated by either Party in accordance with the terms of the Agreement (the “Term”). 

12.3      Termination. If either party materially breaches the terms of this Agreement and the breach is not cured (or curable) within thirty (30) days after written notice of the breach, then the other party may terminate this Agreement and/or the applicable Service Order(s) upon written notice to the breaching party. Either party also may terminate this Agreement upon written notice if the other party: (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, (iv) has wound up or liquidated, voluntarily or otherwise, or (v) by ten (10) days’ prior written notice if no Service Order is in effect between the Parties.

12.4      Effect of Termination. If this Agreement is terminated by Customer for Consensus’ uncured breach in accordance with Section 12.3 (Termination), Consensus will refund Customer any prepaid but unused fees covering the remainder of any terminated Service Orders as of the effective date of termination. If this Agreement is terminated by Consensus for Customer’s uncured breach in accordance with Section 12.3 (Termination), Customer will pay within thirty (30) day any fees which are payable to Consensus prior to, or after the effective date of termination. Upon termination of this Agreement: (a) Consensus’ obligation to provide the Service will terminate, (b) all of Customer’s, if Affiliate’s, and its Users’ rights to use the Service will terminate, and (c) each party will promptly destroy any data or Confidential Information from the other party in its possession.

12.5    Suspension In Lieu of Termination. If any amount owing by Customer is thirty (30) or more days overdue, Consensus may, without limiting its other rights and remedies, and after providing Customer at least 10 days’ prior notice by email, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Consensus’ services to Customer until such amounts are paid in full.

13.            SURVIVAL

The provisions of Sections: 8 (“Confidential Information”),10 (“Indemnification”),11(“Limitation of Liability and Disclaimer of Damages”), and 14 (“Miscellaneous”), and any other terms and conditions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement shall survive any expiration or termination of this Agreement.

14.          MISCELLANEOUS

14.1    Assignment. Either party may assign this Agreement without the consent of the other party to an Affiliate, or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets (a “Sale”).  Assignment will not relieve the assigning party of its obligations under the assigned Agreement and such assignment will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. If Customer enters into a Sale with a direct Competitor of Consensus or assigns the Agreement to a direct competitor of Consensus, Consensus may, in its sole discretion terminate the Agreement.

14.2      Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws. 

14.3    Future Features and Functions. Customer agrees that Consensus may, from time to time, at its sole discretion, modify and update the Service. Customer understands and agrees that any features or functions related to Consensus products referenced on any Consensus website, or in any presentations, verbal or electronic communications, press releases or public statements, which are not currently available as a “Generally Available” release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Consensus’ sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time a Service Order is executed, and not in expectation of any future feature or function. Furthermore, Customer agrees Consensus may release functionality or features in the future not to be made available to the Consensus customer base generally, and that access to such new features may, in Consensus’ sole discretion, require payment of additional Fees.

14.4    Notices.  Notices may be sent by first-class, registered mail (return receipt requested) or private courier to the address of the receiving party identified on the first page of this Agreement. Notice will be deemed given five (5) days after mailing U.S. first class, registered mail, or upon confirmed delivery by private courier, whichever is sooner. Customer will address notices to Consensus’ Legal Department, with a copy to legal@goconsensus.com. Either party may from time to time change its address for notices under this section upon written notice to the other party.

14.5  Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.

14.6      Dispute Resolution. This Agreement will be governed by the laws of the State of Utah, U.S.A., without giving effect to any conflicts of laws provisions.  Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of Salt Lake County, Utah, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following:  a) the expiration or termination of all Subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

14.7    Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.

14.8  Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a customer or supplier, as applicable.

14.9 Force Majeure. Force Majeure Events shall excuse the affected party (the “Non-Performing Party”) from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include acts which are beyond the reasonable control of a party, including without limitation, Acts of God, natural disasters, pandemic, epidemic, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of: (a) its best reasonable assessment of the nature and duration of the Force Majeure Event, and (b) the steps it is taking to mitigate its effects. If the Force Majeure Event prevents performance for more than sixty (60) days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice. Consensus’ suspension of the Services in order to comply with laws is a Force Majeure Event. A Force Majeure Event suffered by Customer will not suspend Customer’s requirement to pay Fees.

14.10 U.S. Government Restricted Rights. If the Service is used by the U.S. Government, parties agree the Service is “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

14.10 Publicity. During the term of this Agreement, Customer agrees to support Consensus’ marketing efforts in the following areas: (i) Customer’s name and logo may be used on Consensus’ website and in Consensus’ marketing materials (subject to Consensus’ compliance with any written trademark use guidelines provided by Customer to Consensus in advance), (ii) press release announcing Customer’s selection of Consensus and/or the Service, and (iii) announcement of Customer’s use of Consensus (in a method of Customer’s choosing; blog, press release, email, other channels).  If Customer plans to submit or publish any research relative to Customer’s outcome of using Consensus Products and/or Service, Customer agrees to inform Consensus prior to such submission or publication.

14.10 Channel partner terms.  These terms apply only when Customer purchases a subscription to the Consensus Channel Accelerator Module.

1. 1. Grant.  Subject to payment of the applicable fees and compliance with the Agreement, Consensus grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Term of this Agreement to resell Channel Partner Subscriptions to Customer’s resellers (each a “Channel Partner”).  Each Channel Partner is a User.  Customer is responsible for the accurate provisioning, rights administration (including groups setup), settings, and creation of all Channel Partner accounts.
   2. Whole Subscriptions.  Customer is only authorized to resell the complete channel partner subscriptions that it purchased and is not permitted to sell it in parts. For example, Customer will not purchase a one-year subscription and then break it into multiple shorter increments of time for resale.
   3. Consent:  Customer will obtain each Channel Partner’s affirmative consent to the Consensus terms and conditions found here: https://goconsensus.com/terms-of-service/.  Customer shall retain evidence of such consent during the Term and for three (3) years thereafter.
   4. Restrictions.  (i) Customer may not refer to itself as a Consensus partner, and the parties are not (and will not represent that they are) partners under the technical legal definition of that term, (ii) nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party or the other party’s employees or agents, and Customer shall not represent itself to another party as an agent or representative of Consensus, (iii) neither Customer nor Consensus has the authority to bind the other, to incur any liability or otherwise act on behalf of the other, (iv) Customer is not authorized to use any Consensus trademark, service mark, logo, or other mark, (v) Customer shall not make any false or misleading representations with regard to the Services or the channel partner subscriptions, (vi) Customer shall not make any representations, warranties or guarantees to Channel Partners or Users with respect to the specifications, features or capabilities of the Services or Channel Partner Subscriptions that are inconsistent with the Documentation or other written product information from Consensus, (vii)  Customer shall not to use or resell the Channel Partner Subscription in any manner or for any purpose not permitted by this Agreement.
   5. Reservation of Rights.  Consensus does not transfer any portion of any title and/or ownership, or any of the associated goodwill to of any Consensus product to Customer, and neither this section nor the Agreement should not be construed to grant Customer any right or license, whether by implication, estoppel or otherwise, except as expressly provided herein.
   6. Additional Customer Indemnity.  Partner agrees to indemnify, defend and hold Consensus harmless from any and all damages, liabilities, costs and expenses incurred by Consensus as a result of any claim, judgment or adjudication against Consensus by any third party resulting from: (i) Customer’s products or services, including infringement claims directed at code or technology in the Customer’s products or services, (ii) representations made by Customer to Users, or Channel Partners, that are not authorized by Consensus, (iii) Channel Partner’s, or User’s actions in breach of the Agreement.

14.13       Entire Agreement; Execution. This Agreement, together with the Appendices and applicable Service Order(s) constitute the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised.  However, if Customer agreed to these terms by reference in another binding instrument (e.g., on a Service Order which refers to these terms by URL), Consensus may change these terms by posting an updated version at the applicable URL and notifying Customer of the change. By continuing to access or use the Service after such notice Customer agrees to be bound by the updated terms.  Customer click-through terms, preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Consensus and/or purport to take precedence over this Agreement. The order of precedence among all documents executed among the parties shall be: (1) the applicable Service Order, (2) this Agreement, (3) fully executed SOWs, (4) the Documentation. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signatures. 

Appendix 1

CONSENSUS SERVICE LEVEL AGREEMENT

1. Service Level Agreement.  Consensus shall make commercially reasonable efforts to maintain availability of the Service 99.9% of each calendar month of a Subscription (the “Uptime Goal”). If an instance of Unavailability exceeds .1% of the monthly Uptime Goal, at the written request of Customer Consensus will extend Customer’s Subscription Term by 10 times (10X) the period of Unavailability with a minimum extension of one business day.  For illustration purposes only, the month of March has a total of 43,200 minutes.  One tenth of one percent (i.e., .1%) is equal to 43.2 minutes.

2. Unavailability.  “Unavailability” means the time period, measured in minutes, from when Consensus’ monitoring tools confirm Customer’s reported inability to access the Service, to the time the Service is available to transmit and receive data.  Unavailability shall not include or occur due to: a) maintenance activities during a scheduled maintenance period; b) beta periods or functionality; c) Force Majeure events; d) any failures of Customer to access the Service caused by Customer, its employees, agents, subcontractors or End Users; e) an outage in the underlying infrastructure required to provide the Services that is not controlled by Consensus, this includes, but is not limited to cloud provider Amazon Web Services (AWS) outages (http://aws.amazon.com and any successor or related site designated by Consensus) or internet network or backbone outages, g) internet DNS outages, or b) Consensus’ suspension or termination of Customer’s right to use the Services in accordance with the Agreement.

2. Data Backups.  Any Customer requests for Consensus to retrieve data from the data backup shall be at Customer’s cost, expense, risk, and delivery timeline and format subject to Consensus’ sole discretion. Consensus makes no warranty or guarantee that such data can or will be retrieved or that such data will be accurate, complete, or conform to original data.  Any data retrieved from backup is provided to Customer as-is.  

3. Response And Resolution Schedule.  Consensus will use commercially reasonable efforts to respond to Errors according to the following schedule and criteria:

Severity Level

Severity 1: Fatal.  Errors preventing all useful work from being performed.  If a Severity 1 issue has an identified workaround it will be reclassified as a Severity 2 issue.

Severity 2: Severe Impact.  Errors which disable major functions from being performed.  If a Severity 2 issue has an identified workaround it will be reclassified as a Severity 3 issue.

Severity 3: Degraded Operations.  Errors disabling only certain nonessential functions.

Severity 4: Minimal Impact.  Includes all other Errors as reasonably determined by Customer.

The Customer will provide an initial severity level associated with a ticket. The Consensus support manager will determine, in Consensus’ sole discretion, if the ticket was correctly classified and may increase or decrease the assigned severity level.  The Consensus support manager may also decrease the severity level of a ticket based on Customer non-responsiveness.

Level Identification

Response 1 — Acknowledgment of receipt of error report

Response 2 — Provide patch, workaround, or other temporary fix

Response 3 — Official object code fix, update or major release and/or updated manuals.  A “Next Version” indicated in the Response 3 column will only be available if the applicable Error is reported by Customer to prior to the close of development for the applicable version.

4. Connection to the Service.  Customer is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Internet and to Consensus’ cloud provider where the Service is hosted.  Customer is responsible for all problems, delays, failures, and all other loss or damage arising from or relating to Customer’s network or telecommunications connection to the Internet.

Appendix 2
(Definitions)

“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party through the possession of more than fifty percent (50%) of the voting stock of the controlled entity.

“Authorized User” or “User” means: (a) in the case of an individual accepting this Agreement on such individual’s own behalf, such individual; or (b) an employee or authorized third-party of Customer, who has been authorized by Customer to use the Service in accordance with the terms and conditions of this Agreement and has been allocated user credentials.  

“Business Day” means 7:00 a.m. – 6:00 p.m. Mountain Time, U.S.A. during a day which is not a federally recognized holiday. A “Business Hour” occurs during a Business Day.

“Connected Application” means Customer’s or a third party’s web-based or other software application interoperates with the Service.

“Customer Data” means any electronic data or materials provided or submitted by or for Customer to or through the Service.

“Documentation” means Consensus’ published user manual that describes the functionality of the Service, as updated by Consensus from time to time.

“Error” means a material deviation from the intended behavior of the Service as described in the Documentation.

“Implementation Services” means any services provided to Customer to assist implementing the Service described under a separately executed statement of work that defines the scope of the services engagement.

“Service Order” means the purchasing document (however so named), signed by a duly authorized representative of each party, that details the Subscription, pricing, payment terms, applicable licensing metrics, other applicable commercial terms and condition, and includes its attachments, schedules, exhibits, addenda, and any terms and conditions and other products and services purchased by Customer from Consensus pursuant to this Agreement. 

“Party” means either Customer or Consensus and together the “Parties”. 

“Professional Services” means Training Services, Implementation Services, or other services Customer agrees to purchase as described in a fully executed statement of work.

“Service” means Consensus software-as-service platform located at www.goconsensus.com.

“Subscription” means access to the Service during the Subscription Term.  Each Subscription is specific to a unique Authorized User and under no circumstance may an Authorized User Subscription be transferred to, shared among or used by different Authorized Users.

“Subscription Term(s)” means the subscription period(s) during which Customer is authorized to use the Service, as specified in an applicable Service Order. 

“Training Services” means those training or advisory services described in an applicable Service Order to be provided by Consensus pursuant to this Agreement.

Appendix 3

CONSENSUS DATA PROCESSING ADDENDUM (DPA)

This Data Processing Addendum, including its Schedules, (“DPA”) forms part of the Cloud Enterprise Subscription Agreement between Consensus and Customer for the purchase of the Service (the “Agreement”) to reflect the Parties’ agreement with regard to the Processing of Personal Data.

Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

In the course of providing the Service to Customer pursuant to the Agreement, Consensus may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

For the avoidance of doubt, signature of the DPA on page 8 shall be deemed to constitute signature and acceptance of the Standard Contractual Clauses, including Schedule 2. Where Customer wishes to separately execute the Standard Contractual Clauses and its Appendix, Customer should also complete the information as the data exporter and sign on page 14 (Schedule 2).

HOW THIS DPA APPLIES

If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the Consensus entity that is party to the Agreement is party to this DPA.

If the Customer entity signing this DPA has executed a Service Order with Consensus or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Service Order and applicable renewal Service Order(s), and the Consensus entity that is party to such Service Order is party to this DPA. 

• DATA PROCESSING TERMS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Service pursuant to the Agreement between Customer and Consensus, but has not signed its own Service Order with Consensus and is not a “Customer” as defined under this DPA.

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act, and its implementing regulations.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Customer” means the entity that executed the Agreement together with its Affiliates (for so long as they remain Affiliates) which have signed Service Orders.

“Customer Data” means what is defined in the Agreement as “Customer Data”, provided that such data is electronic data and information submitted by or for Customer to the Service. This DPA does not apply to Non-Consensus Applications as defined in the Agreement.

“Customer Data Incident” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Consensus or its Sub-processors. 

“Data Protection Laws and Regulations” means all laws and regulations applicable to the Processing of Personal Data under the Agreement, including those of the the European Economic Area, Switzerland, the United Kingdom and the United States and its states.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“Data Subject Request” means, a Data Subject’s legal right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making as set out in applicable Data Protection Laws and Regulations.

“Europe” means the  European Economic Area, Switzerland and the United Kingdom.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), including as implemented or adopted under the laws of the United Kingdom.

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as Personal Data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” or “Process” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

“Public Authority” means a government agency or law enforcement authority, including judicial authorities.

“Consensus” means Consensus Sales, LLC, a company incorporated in Delaware, US. 

“Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eur- lex.europa.eu/eli/dec_impl/2021/914/oj.

“Sub-processor” means any Processor engaged by Consensus.

2.        PROCESSING OF PERSONAL DATA

2.1  Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is a Controller or a Processor, Consensus is a Processor and that Consensus will engage Sub-processors pursuant to the requirements set forth in section 5 “Sub-processors” below.

2.2    Customer’s Personal Data Obligations. Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations and where Customer is a processor, the instructions of its Controller. Customer confirms that its instructions do not conflict with the instructions of its Controller. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data, the means by which Customer acquired Personal Data. Customer acknowledges that any Processing governed by this DPA is lawful on the basis that Data Subjects have given consent. Where Customer is required by applicable Data Protection Laws and Regulations to evidence Data Subjects’ consent, it may request a copy of the consent log captured by Consensus. Customer specifically acknowledges and agrees that its use of the Service will not violate the rights of any Data Subject, including those that have opted-out from sales or other disclosures of Personal Data, to the extent applicable under Data Protection Laws and Regulations.

2.3  Consensus’ Processing of Personal Data. Consensus shall Process Personal Data on behalf of and only in accordance with applicable Data Protection Laws and Regulations and Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Service Order(s); (ii) Processing initiated by Users in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. Where Customer is a processor, Customer confirms that its instructions to Consensus are consistent with the terms of the agreement between the Customer and the Controller.

2.4  Details of the Processing. The subject-matter of Processing of Personal Data by Consensus is the performance of the Service pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Description of Processing/Transfer) to this DPA.

2.5 Customer Instructions. Consensus shall inform Customer if, in its opinion, Customer’s instructions for the Processing of Personal Data infringes GDPR. Where this relates to instructions from the Customer’s Controller, Customer agrees to immediately inform its Controller.

3.      RIGHTS OF DATA SUBJECTS

3.1 Notification. Consensus shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or Data Subject Request it has received from a Data Subject. Where Customer is a processor, Customer agrees to forward any notification it receives from Consensus without undue delay, to its Controller. Consensus shall not respond to a complaint, dispute or Data Subject Request itself, and shall redirect the complaint, dispute or Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Consensus shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations.

3.2  Assistance. In addition, to the extent Customer, in its use of the Service, does not have the ability to address a Data Subject Request, Consensus shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Consensus is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. Customer shall be responsible for any reasonable costs arising from Consensus’ provision of such assistance.

4.    CONSENSUS PERSONNEL

4.1 Confidentiality. Consensus shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Consensus shall ensure that such confidentiality commitments survive the termination of the personnel engagement.

4.2 Reliability. Consensus shall take commercially reasonable steps to ensure the reliability of any Consensus personnel engaged in the Processing of Personal Data.

4.3 Limitation of Access. Consensus shall ensure that Consensus’ access to Personal Data is limited to those personnel performing Service in accordance with the Agreement.

4.4 Data Protection Officer. Consensus has appointed a data protection officer. The appointed person may be reached at privacy@goconsensus.com

5.  SUB-PROCESSORS

5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Consensus’ Affiliates may be retained as Sub-processors; and (b) Consensus and Consensus’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Service. Consensus or a Consensus Affiliate has entered into a written agreement with each Sub-processor containing, in substance, the same data protection obligations than those in the Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Service provided by such Sub-processor.

5.2 List of Current Sub-processors and Notification of New Sub-processors. The current list of Sub-processors engaged in Processing Personal Data for the performance of each applicable Purchased Service, including a description of their processing activities and countries of location, is listed here: https://goconsensus.com/terms-of-service/sub-processors. Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. Customer is responsible for re-checking the sub-processor URL to obtain notice of future changes.

5.3 Objection Right for New Sub-processors. Customer may reasonably object to Consensus’ use of a new Sub-processor by notifying Consensus promptly in writing within thirty (30) days Consensus’ notice on the sub-processor page, but Consensus is not obligated to make reasonable efforts to make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-processor. If Consensus is unable to resolve Customer’s objections, Customer may terminate the applicable Service Order(s) with respect only to the Service which cannot be provided by Consensus without the use of the objected-to new Sub-processor by providing written notice to Consensus. Consensus will refund Customer any prepaid but unused Fees covering the remainder of the term of such Service Order(s) following the effective date of termination with respect to such terminated Service, without imposing a penalty for such termination on Customer.

5.4 Liability. Consensus shall be liable for the acts and omissions of its Sub-processors to the same extent Consensus would be liable if performing the services of each Sub-processor directly under the terms of this DPA. Where the performance of the Service requires Consensus to contract with Sub-processors who only offer click-wrap data protection agreements, namely third party cloud hosting providers, Consensus shall not be liable for any Sub-processors’ acts of omissions that are not recoverable under the terms of such data protection agreements because of the Sub-processors’ decision to impose their terms on a non-negotiable basis.

6. SECURITY

6.1 Controls for the Protection of Customer Data. Consensus shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in Schedule 3 attached hereto. Consensus regularly monitors compliance with these measures. Consensus will not materially decrease the overall security of the Service during a subscription term.

6.2 Audit. Consensus shall maintain an audit program to help ensure compliance with the obligations set out in this DPA and shall make available to Customer information to demonstrate compliance with the obligations set out in this DPA, including those obligations required by applicable Data Protection Laws and Regulations, as set forth in this section 6.2. Where Customer is a processor, Customer agrees to provide the information demonstrating compliance provided by Consensus in this section 6.2, to its Controller.

1. Third-Party Certifications and Audits. Consensus has obtained the third-party certifications and audits set forth in Schedule 3 for each applicable Purchased Service. Upon Customer’s written request, and with a least thirty days’ notice, and subject to the confidentiality obligations set forth in the Agreement, Consensus shall make available to Customer (or Customer’s Third-Party Auditor) information regarding Consensus’ compliance with the obligations set forth in this DPA in the form of a copy of Consensus’ then most recent SOC II report and an executive summary of its most recent penetration test. Such third-party audits or certifications may also be shared with Customer’s competent supervisory authority on its request. Where Consensus has obtained a SOC 2, Type II report, Consensus agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Agreement. Customer acknowledges that any information provided under this Section 6.2 shall be considered Confidential Information.
2. Legally Mandated On-Site Audits. Where applicable Data Protection Laws and Regulations mandate that Consensus must submit to an on-site audit by the Customer, Consensus will permit Customer (or its Third-Party Auditor) to conduct an audit of the Processing undertaken by Consensus in respect of the provision of the Service. Such on-site audits shall take place on reasonable notice and no more than annually, or if there are indications of non-compliance with this DPA from the third party certifications provided in accordance with section 6.2.1 above, more frequently.

6.3 Data Protection Impact Assessment. Upon Customer’s request, Consensus shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Consensus.

7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION

7.1 Notification.  Consensus maintains security incident management policies and procedures.  Consensus shall notify Customer without undue delay after becoming aware of a “Customer Data Incident”.

7.2 Consensus Responsibilities.  In respect of such Customer Data Incident, Consensus shall: (i) make reasonable efforts to identify the cause; (ii) take such steps as Consensus deems necessary and reasonable to remediate the cause to the extent the remediation is within Consensus’ reasonable control; (iii) cooperate reasonably with the Customer and provide Customer with the information needed to fulfil its data breach obligations under Data Protection Laws and Regulations; (iv) take other further measures and actions that Consensus determines are necessary to remedy or mitigate the effects of the security incident, and (v) except as required by law, Consensus will not take action to notify Data Subjects of any security incident.

7.3 Exclusions.  The obligations imposed on Consensus and set out in section 7.2, shall not apply to incidents that are caused by Customer or Customer’s Users.

8. RETURN AND DELETION OF CUSTOMER DATA

8.1 Customer Data. Customer may download Customer Data at any time during the term of the Agreement and for thirty (30) days after termination of the Agreement or this Addendum. Thirty (30) days after the termination of the Agreement or of this Addendum, and to the extent allowed by applicable law and/or Consensus’ ongoing contractual obligations, Consensus shall destroy the Customer Data. Customer acknowledges that Customer Data may be stored by Consensus after the Termination Date pursuant to Consensus’ data retention rules and back-up procedures until it is eventually deleted. To the extent that any portion of Customer Data remains in the possession of Consensus following the Termination Date, Consensus’ obligations set forth in this DPA shall survive termination of the Agreement or this DPA with respect to that portion of the Customer Data until it is deleted.

9. AUTHORIZED AFFILIATES

9.1 Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Consensus and each such Authorized Affiliate subject to the provisions of the Agreement and this section 9 and section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is a party only to this DPA. All access to and use of the Service by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

9.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Consensus under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates

9.3 Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA with Consensus, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following: Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Consensus directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA, not separately for each Authorized Affiliate individually, but in a combined manner for itself and all of its Authorized Affiliates together.

• CCPA.  To provide the Service Customer may disclose Personal Information to Consensus. The parties agree that to provide the Service, Consensus is acting as a “Service Provider” pursuant to §1798.140 of the California Consumer Protection Act (“CCPA”).  Consensus shall not retain, use, or disclose Personal Information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of providing the Service and the Professional Services, as applicable, pursuant to this Agreement or as otherwise set forth in this Agreement or as permitted by the CCPA. Consensus will not sell Personal Information. Customer is responsible for responding to Consumer requests using Customer’s own access to the relevant Personal Information. Upon Customer’s written request, and subject to and in accordance with all applicable laws, Consensus will provide assistance, as required under CCPA, to Customer for the fulfillment of Customer’s obligations to respond to requests to exercise Consumer’s rights under CCPA with respect to Personal Information provided by Customer pursuant to this Agreement, to the extent Customer is unable to access the relevant Personal Information itself. To the extent legally permitted, Customer shall be responsible for any costs arising from Consensus’ provision of such assistance.

List of Schedules

Schedule 1: Transfer Mechanisms for European Data Transfers 

Schedule 2: Description of Processing/Transfer

Schedule 3: Technical and Organizational Security Measures.

The parties’ authorized signatories have duly executed this DPA:

CUSTOMER

Signature:  

Customer Legal Name:  

Print Name:  

Title:  

Date:

 CONSENSUS SALES, LLC

Signature: Print Name:

Title: ____________________________________

Date: ___________________________________

SCHEDULE 1 – TRANSFER MECHANISMS 

FOR EUROPEAN DATA TRANSFERS

1. STANDARD CONTRACTUAL CLAUSES OPERATIVE PROVISIONS AND ADDITIONAL TERMS

For the purposes of the EU C-to-P and EU P-to-P Transfer Clauses, Customer is the data exporter and Consensus is the data importer and the Parties agree to the following. If and to the extent an Authorized Affiliate relies on the EU C-to-P or the EU P-to-P Transfer Clauses for the transfer of Personal Data, any references to ‘Customer’ in this Schedule, include such Authorized Affiliate. Where this section 2 does not explicitly mention EU P-to-P Transfer Clauses it applies to both EU C-to-P and EU P-to-P.

1.1 Reference to the Standard Contractual Clauses. The relevant provisions contained in the Standard Contractual Clauses are incorporated by reference and are an integral part of this DPA. The information required for the purposes of the Appendix to the Standard Contractual Clauses are set out in Schedule 

1.2 Docking clause. The option under clause 7 shall not apply.

1.3 Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Consensus for the Processing of Personal Data. Any additional or alternate instructions must be consistent with the terms of this DPA and the Agreement. For the purposes of this DPA, the instructions by Customer and where Customer is a processor, it’s Controller, to Process Personal Data are set out in section 2.3 of this DPA and include onward transfers to a third party located outside Europe for the purpose of the performance of the Service.

1.4 Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in clause 8.5 and 16(d) of the Standard Contractual Clauses shall be provided by Consensus to Customer only upon Customer’s written request or where Customer is a processor, its Controller’s written request.

1.5 Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the technical and organizational measures set forth in Schedule 3 meet Customer’s, or where Customer is a processor, its Controller’s requirements and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of its Personal Data as well as the risks to individuals) the security measures and policies implemented and maintained by Consensus provide a level of security appropriate to the risk with respect to its or its Controller’s Personal Data. For the purposes of clause 8.6(c), personal data breaches will be handled in accordance with section 7 (Customer Data Incident Management and Notification) of this DPA.

1.6 Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with section 6.2 of this DPA.

1.7 General authorization for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Consensus has Customer’s general authorization to engage Sub-processors in accordance with section 5 of this DPA. Consensus shall make available to Customer the current list of Sub-processors in accordance with section 5.2 of this DPA.

1.8 Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Consensus may engage new Sub-processors as described in sections 5.2 and 5.3 of this DPA. Consensus shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5.2 of this DPA and where Customer is a processor, Customer shall bear the responsibility of informing its Controller of any changes to Sub-processors by Consensus.

1.9 Complaints -– Redress. For the purposes of clause 11, and subject to section 3 of this DPA, Consensus shall inform data subjects on its website of a contact point authorized to handle complaints. Consensus shall inform Customer if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data and shall without undue delay communicate the complaint or dispute to Customer. Consensus shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer). The option under clause 11 shall not apply.

1.10 Liability. Consensus’ liability under clause 12(b) shall be limited in aggregate by the “Limitations of Liability” section of the Agreement and shall be restricted with respect to any damage caused by its Processing where Consensus has not complied with its obligations under the GDPR specifically directed to Processors, or where it has acted outside of or contrary to lawful instructions of Customer, as specified in Article 82 GDPR.

1.10 Supervision. Clause 13 shall apply as follows:

1. Where Customer is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by Customer with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.
2. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority.
3. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the Data Protection Commission – 21 Fitzwilliam Square South, Dublin 2, DO2 RD28, Ireland shall act as competent supervisory authority.
4. Where Customer is established in the United Kingdom or falls within the territorial scope of application of the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws and Regulations”), the Information Commissioner’s Office (“ICO”) shall act as competent supervisory authority.
5. Where Customer is established in Switzerland or falls within the territorial scope of application of the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws and Regulations”), the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

“Sub-processor” means any Processor engaged by Consensus.

2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is a Controller or a Processor, Consensus is a Processor and that Consensus will engage Sub-processors pursuant to the requirements set forth in section 5 “Sub-processors” below.

2.2 Customer’s Personal Data Obligations. Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations and where Customer is a processor, the instructions of its Controller. Customer confirms that its instructions do not conflict with the instructions of its Controller. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data, the means by which Customer acquired Personal Data. Customer acknowledges that any Processing governed by this DPA is lawful on the basis that Data Subjects have given consent. Where Customer is required by applicable Data Protection Laws and Regulations to evidence Data Subjects’ consent, it may request a copy of the consent log captured by Consensus. Customer specifically acknowledges and agrees that its use of the Service will not violate the rights of any Data Subject, including those that have opted-out from sales or other disclosures of Personal Data, to the extent applicable under Data Protection Laws and Regulations.

2.3 Consensus’ Processing of Personal Data. Consensus shall Process Personal Data on behalf of and only in accordance with applicable Data Protection Laws and Regulations  and Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Service Order(s); (ii) Processing initiated by Users in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. Where Customer is a processor, Customer confirms that its instructions to Consensus are consistent with the terms of the agreement between the Customer and the Controller.

2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Consensus is the performance of the Service pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Description of Processing/Transfer) to this DPA.

2.5 Customer Instructions. Consensus shall inform Customer if, in its opinion, Customer’s instructions for the Processing of Personal Data infringes GDPR. Where this relates to instructions from the Customer’s Controller, Customer agrees to immediately inform its Controller.

3. RIGHTS OF DATA SUBJECTS

3.1 Notification.  Consensus shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or Data Subject Request it has received from a Data Subject. Where Customer is a processor, Customer agrees to forward any notification it receives from Consensus without undue delay, to its Controller. Consensus shall not respond to a complaint, dispute or Data Subject Request itself, and shall redirect the complaint, dispute or Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Consensus shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations.

3.2 Assistance.  In addition, to the extent Customer, in its use of the Service, does not have the ability to address a Data Subject Request, Consensus shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Consensus is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. Customer shall be responsible for any reasonable costs arising from Consensus’ provision of such assistance.

4. CONSENSUS PERSONNEL

4.1 Confidentiality. Consensus shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Consensus shall ensure that such confidentiality commitments survive the termination of the personnel engagement.

4.2 Reliability. Consensus shall take commercially reasonable steps to ensure the reliability of any Consensus personnel engaged in the Processing of Personal Data.

4.3 Limitation of Access. Consensus shall ensure that Consensus’ access to Personal Data is limited to those personnel performing Service in accordance with the Agreement.

4.4 Data Protection Officer. Consensus has appointed a data protection officer. The appointed person may be reached at privacy@goconsensus.com.

5. SUB-PROCESSORS

5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Consensus’ Affiliates may be retained as Sub-processors; and (b) Consensus and Consensus’ Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Service. Consensus or a Consensus Affiliate has entered into a written agreement with each Sub-processor containing, in substance, the same data protection obligations than those in the Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Service provided by such Sub-processor.

5.2 List of Current Sub-processors and Notification of New Sub-processors. The current list of Sub-processors engaged in Processing Personal Data for the performance of each applicable Purchased Service, including a description of their processing activities and countries of location, is listed here: https://goconsensus.com/terms-of-service/sub-processors. Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. Customer is responsible for re-checking the sub-processor URL to obtain notice of future changes.

5.3 Objection Right for New Sub-processors. Customer may reasonably object to Consensus’ use of a new Sub-processor by notifying Consensus promptly in writing within thirty (30) days Consensus’ notice on the sub-processor page, but Consensus is not obligated to make reasonable efforts to make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-processor. If Consensus is unable to resolve Customer’s objections, Customer may terminate the applicable Service Order(s) with respect only to the Service which cannot be provided by Consensus without the use of the objected-to new Sub-processor by providing written notice to Consensus. Consensus will refund Customer any prepaid but unused Fees covering the remainder of the term of such Service Order(s) following the effective date of termination with respect to such terminated Service, without imposing a penalty for such termination on Customer.

5.4 Liability. Consensus shall be liable for the acts and omissions of its Sub-processors to the same extent Consensus would be liable if performing the services of each Sub-processor directly under the terms of this DPA. Where the performance of the Service requires Consensus to contract with Sub-processors who only offer click-wrap data protection agreements, namely third party cloud hosting providers, Consensus shall not be liable for any Sub-processors’ acts of omissions that are not recoverable under the terms of such data protection agreements because of the Sub-processors’ decision to impose their terms on a non-negotiable basis.

6. SECURITY

6.1 Controls for the Protection of Customer Data. Consensus shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in Schedule 3 attached hereto. Consensus regularly monitors compliance with these measures. Consensus will not materially decrease the overall security of the Service during a subscription term.

6.2 Audit. Consensus shall maintain an audit program to help ensure compliance with the obligations set out in this DPA and shall make available to Customer information to demonstrate compliance with the obligations set out in this DPA, including those obligations required by applicable Data Protection Laws and Regulations, as set forth in this section 6.2. Where Customer is a processor, Customer agrees to provide the information demonstrating compliance provided by Consensus in this section 6.2, to its Controller.

1. Third-Party Certifications and Audits. Consensus has obtained the third-party certifications and audits set forth in Schedule 3 for each applicable Purchased Service. Upon Customer’s written request, and with a least thirty days’ notice, and subject to the confidentiality obligations set forth in the Agreement, Consensus shall make available to Customer (or Customer’s Third-Party Auditor) information regarding Consensus’ compliance with the obligations set forth in this DPA in the form of a copy of Consensus’ then most recent SOC II report and an executive summary of its most recent penetration test. Such third-party audits or certifications may also be shared with Customer’s competent supervisory authority on its request. Where Consensus has obtained a SOC 2, Type II report, Consensus agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Agreement. Customer acknowledges that any information provided under this Section 6.2 shall be considered Confidential Information.
2. Legally Mandated On-Site Audits. Where applicable Data Protection Laws and Regulations mandate that Consensus must submit to an on-site audit by the Customer, Consensus will permit Customer (or its Third-Party Auditor) to conduct an audit of the Processing undertaken by Consensus in respect of the provision of the Service. Such on-site audits shall take place on reasonable notice and no more than annually, or if there are indications of non-compliance with this DPA from the third party certifications provided in accordance with section 6.2.1 above, more frequently.

6.3 Data Protection Impact Assessment. Upon Customer’s request, Consensus shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Consensus.