1. Definitions. For purposes of this Agreement, the definitions below will apply and have the following meanings. Any terms capitalized in this Agreement but not defined in this Agreement will have the meaning given to them in the SaaS Agreement or Order Form between the Parties:

• “Aggregated Statistics” means data and information related to Licensee’s and Enrolled Users’ access and use of the Q5id System & Q5id KYE that is used by Q5id in an aggregate and anonymized manner, including statistical and performance information related to the provision and operation of the Q5id System & Q5id KYE.
• “Authentication” means any occurrence of an Enrolled User using the Q5id System & Q5id KYE to verify their identity, whether successful or not. A successfully completed Authentication results in an approval code being generated which is shared with Licensee to confirm the Enrolled Users’ identity for that specific event or transaction.
• “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Q5id System & Q5id KYE under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Q5id System & Q5id KYE has been purchased hereunder.
• “Documentation” means any written and/or electronic end user or technical documentation pertaining to the Q5id System & Q5id KYE that may be provided by Q5id to Licensee together with the delivery of the Q5id System & Q5id KYE.
• “End User” means Applicants and Enrolled Users.
• “End User Data” means data provided to Q5id by End Users during
  the enrollment and authentication process.
• “Enrolled User” means an individual that has completed an Initial Enrollment. For clarity, an Inactive Enrolled User is not an Enrolled User until it is reactivated by Q5id.
• “Enrollment” means the use of the Q5id System & Q5id KYE to perform identity verification and enrollment into the Q5id System & Q5id KYE.
• “Enrollment Data” means a compilation of all data relating to an End User’s Enrollment into the Q5id System & Q5id KYE that Q5id makes available to Licensee for the purposes of Authentication.
• “Failed Enrollment” means an attempt by an Applicant to enroll in the Q5id System & Q5id KYE using a Licensee Program Code that does not result in a completed successful Enrollment.
• “Inactive Enrolled User” means an Enrolled User who has been deactivated by Licensee by providing notice of such deactivation request to Q5id. An Enrolled User will be deemed to be an Inactive Enrolled User within five business days of Licensee’s notice of deactivation to Q5id. Inactive Enrolled Users may be reactivated to Enrolled Users at Licensee’s written request.
• “Initial Enrollment” occurs when (a) a new Applicant not previously enrolled in the Q5id System & Q5id KYE completes at least the first two steps of the Enrollment process using a ProgramCode; (b) a user that is already enrolled into the Q5id System & Q5id KYE uses a Program Code for the first time; or (c) an Inactive Enrolled User is reactivated by Q5id at Licensee’s request.
• “Integrated Product” means the Q5id System & Q5id KYE integrated with Licensee’s product, application or website and presented to End Users as an integrated product or service.
• “Intellectual Property Rights” includes all intellectual property rights, whether or not registered, including, without limitation, all patents, trademarks, design rights, copyright rights, database rights, moral rights, know-how, confidential information, trade secrets and all rights of protection of a similar nature or effect which may exist or come into existence.
• “Launch Date” means the date of Licensee’s commercial launch of any Q5id Service or individual component of the Q5id System & Q5id KYE to its End Users.
• “Licensee Data” means data related to Licensee provided by Licensee to Q5id pursuant to this Agreement.
• “Program Code” means a unique code assigned by Q5id for each use case and/or program for which Licensee wishes to separately track Initial Enrollments and/or Authentications. There is no limit to the number of Program Codes that can be active for a Licensee at any given time, but Licensee must have at least one active Program Code.
• ”Q5id Marks” include the name Q5id, all logos used by Q5id and all other word marks and product names, and other indicators of origin used by Q5id.
• “Q5id System & Q5id KYE” includes the Q5id Services identified on Customer’s Order Form; any Updates and written and/or electronic end user or technical documentation pertaining to such Q5id Services that may be provided by Q5id to Licensee.
• “Q5id IP” means the Q5id System & Q5id KYE, the Documentation, and any and all Intellectual Property Rights embodied therein. For the avoidance of doubt, Q5id IP includes Aggregated Statistics and any information, data, or other content derived from Q5id’s monitoring of Licensee’s access to or use of the Q5id System & Q5id KYE, but does not include Licensee Data or End User Data.
• “Total Identities Under Management” or “Total IUM” means the total of all Enrolled Users.
• “Updates” means changes to the Q5id System & Q5id KYE that are released during the Term and made available by Q5id to Q5id enterprise customers purchasing a license to the relevant component of the Q5id System & Q5id KYE. Any Updates are subject to the terms and conditions of the Agreement.

2. Access and Use.

• 2.1. Provision of Access. Subject to and conditioned on Licensee’s payment of Fees and compliance with the terms and conditions of this Agreement, Q5id hereby grants
  Licensee a non-exclusive, non-sublicensable, non- transferable (except in compliance with Section 13.8) right to access and use the Q5id System & Q5id KYE in the Territory (as defined in Schedule A) during the Term, solely for Licensee’s internal use in accordance with the terms and conditions herein. Q5id shall provide to Licensee the necessary passwords and network links or connections to allow Licensee to access and use the Q5id System & Q5id KYE.
  2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, Q5id hereby grants to Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.8) license to use the Documentation during the Term solely for Licensee’s internal business purposes in connection with its use of the Q5id System & Q5id KYE.
• 2.3. Use Restrictions. Licensee will only use (or permit the use of) the Q5id System & Q5id KYE as part of its effort to promote and/or require the use of Q5id Services, or as an Integrated Product for use as described in the Agreement. Licensee will not use (or permit any of its customers, affiliates, employees or third parties to use) the Q5id System & Q5id KYE in other products or for other authentication or identification applications, without the prior written permission of Q5id. Licensee shall not use the Q5id System & Q5id KYE for any purposes beyond the scope of the access granted in this Agreement. Licensee shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Q5id System & Q5id KYE or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Q5id System & Q5id KYE or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Q5id System & Q5id KYE, in whole or in part; (iv) remove any proprietary notices from the Q5id System & Q5id KYE or Documentation; or (v) use the Q5id System & Q5id KYE or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
• 2.4. Reservation of Rights. Licensee acknowledges that, as between Licensee and Q5id, Q5id owns all right, title, and interest, including all Intellectual Property Rights, in and to the Q5id IP. The Q5id System & Q5id KYE is licensed and not sold under this Agreement. Licensee has no ownership interest in the Q5id System & Q5id KYE or the Q5id IP, including, without limitation, the Documentation, or any copies thereof. Q5id will have and retain sole and exclusive ownership of all right, title, and interest in and to the Q5id System & Q5id KYE, and any Updates, additions, modifications, or improvements thereto and all associated Intellectual Property Rights. All rights not expressly granted in this Agreement are hereby reserved by Q5id. No licenses, rights or interests not expressly granted in this Agreement are granted by implication, estoppel, or otherwise.
• 2.5. Aggregated Statistics. Q5id may monitor Licensee’s and End Users’ use of the Q5id System & Q5id KYE and collect and compile Aggregated Statistics. As between Q5id and Licensee, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Q5id. Licensee acknowledges that Q5id may compile Aggregated Statistics based on Licensee Data and End User Data input into the Q5id System & Q5id KYE. Licensee agrees that Q5id may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
• 2.6. Data Sources. All databases of third-party suppliers of identity related data for Enrollment and Authentication (“Data Sources”) that are generally made available to all Q5id licensees at no charge shall be available to Licensee for no charge. If Q5id is required to pay any additional fees to any Data Source provider for Enrollment Data for Licensee’s access and use of the Q5id System & Q5id KYE, or Licensee elects to include a Data Source not generally available to Q5id licensees, then Licensee will be charged an additional fee for such Data Sources. Q5id may remove any Data Source from the Q5id System & Q5id KYE at any time for any reason, including, without limitation, if: (a) Q5id determines that retrieval of Enrollment and Authentication data from such Data Source violates any law, rule, regulation or court order, or (b) the Data Source becomes technically unavailable or inaccessible.

3. Branding and Marketing. Q5id may identify Licensee as a customer of Q5id by including Licensee’s name and other indicia in Q5id’s lists of current customers and promotional and marketing materials, including, without limitation, in case studies, press releases, and quarterly earnings calls. Licensee will provide attribution to Q5id as the provider of the Q5id System & Q5id KYE by identifying Q5id as a strategic partner on its website and product collaterals/incorporating the Q5id logo, or the notice “Powered by Q5id” into the Licensee’s product interface, website enrollment pages, apps or other user interfaces which utilize the Q5id System & Q5id KYE. Licensee agrees to promote and market the Q5id System & Q5id KYE as Licensee’s preferred method to authenticate identities. Each Party hereby grants to the other a limited, revocable, non- exclusive, non-sublicensable, non-transferrable, royalty-free license to use the granting Party’s name and logo strictly as necessary in connection with the non-granting Party’s rights and obligations under this Agreement.

4. Licensee Responsibilities.

• 4.1. General. Licensee is responsible and liable for all uses of the Q5id System & Q5id KYE and Documentation resulting from access provided by Licensee, directly or indirectly. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, including acts and omissions that constitute breach of any agreement between the Authorized User and Q5id, and including any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Q5id System & Q5id KYE and shall cause Authorized Users to comply with such provisions, including, without limitation, Sections 2.3 and 7.
  4.2. Licensee Obligations. Licensee covenants and agrees: (a) to notify Q5id immediately if Licensee becomes aware of any unauthorized use of the whole or any part of the Q5id System & Q5id KYE; and (b) to maintain accurate and up-to-date records of the number and location of all installed instances of the Q5id System & Q5id KYE. If Licensee has obtained Q5id’s express written permission to export the Q5id System & Q5id KYE outside of the United States and its territories, then Licensee will comply with all relevant import and export laws, rules and regulations affecting the Q5id System & Q5id KYE or any portion of it, including, without limitation, those applied by the United States.
  4.3. Third-Party Products. Q5id may from time to time make third-party products available to Licensee as part of the Q5id System & Q5id KYE. For purposes of this Agreement, such third-party products are subject to their own terms and conditions and the applicable flow-through provisions.

5. Service Levels, Support Services and Professional Services.
Subject to the terms and conditions of this Agreement, Q5id shall use commercially reasonable efforts to make the Q5id System & Q5id KYE available in accordance with the service levels set out in the Service Levels and Support Agreement (“SLA”) attached hereto as Schedule B. The Fees entitle Licensee to the support services described in the SLA during the Term (“Support Services”). From time to time during the Term, Q5id and Licensee may enter into one or more statements of work (each a “SOW”) providing for additional services to be provided by Q5id to Licensee under this Agreement, such as training, installation, configuration or other such professional services (“Professional Services”). All SOWs between the Parties referencing this Agreement will be subject to the terms and conditions of this Agreement and the relevant SOW. Unless expressly specified otherwise in the SOW, Q5id hereby retains all right, title and interest in and to any deliverables under the SOW, including all Intellectual Property Rights therein and thereto. Q5id hereby grants to Licensee a limited, non-exclusive license to use any deliverables created under a SOW in conjunction with this Agreement during the Term and solely for the purpose for which the deliverable was created. In the event of a conflict between the terms of a SOW and this Agreement, the terms of this Agreement will control, unless the SOW expressly states that it is amending the conflicting provision of this Agreement.
6. Records and Audit.

• 6.1. Records. During the Term and for a period of three (3) years after the end of the Term, Licensee will maintain complete records concerning the calculation and payment of amounts owed by Licensee hereunder, whether or not any amounts are owed for the period covered by such records.
• 6.2. Audit. During the Term and for a period of three (3) years after the end of the Term, Q5id shall have the right, upon advance notice to Licensee of at least 10 business days, to inspect and review the relevant records, software and systems of Licensee, and any relevant subcontractors or affiliates, on which the Fees are based. If any such audit reveals a shortfall in the amounts paid by Licensee during the audited period which shortfall exceeds five percent (5%) of the amounts payable by Licensee hereunder for such period, then, in addition the other remedies available to Q5id, Licensee shall reimburse Q5id for the reasonable costs and expenses of such audit in addition to the amount of the underpayment (plus late payment charges under the SaaS Agreement). All information reviewed and obtained during any audit hereunder shall be treated as Confidential Information pursuant to Section 7. Such inspection and audit requests shall not be made more than once per year, provided that such limit shall cease to apply if Q5id discovers a shortfall in excess of five percent (5%) as described above.

7. Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, pricing, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The terms and conditions of this Agreement will be deemed Q5id’s Confidential Information. Confidential Information does not include information that is: (a) in the public domain at the time of disclosure; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party at the time of disclosure; or (d) independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may only access and use the Disclosing Party’s Confidential Information as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder and are bound by confidentiality obligations no less stringent than those in this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish its rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the Receiving Party will promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.

8. Intellectual Property Ownership.

• 8.1. Q5id IP. Licensee acknowledges that, as between Licensee and Q5id, Q5id owns all right, title, and interest, including all Intellectual Property Rights, in and to the Q5id Marks and the Q5id System & Q5id KYE, together with any Updates and Documentation, and any information, data, or other content derived from Q5id’s monitoring of Customers’ and/or End Users’ access to or use of the Q5id System & Q5id KYE (collectively, “Q5id IP”). With respect to third-party products, if any, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party products. Q5id will have and retain sole and exclusive ownership of all right, title, and interest in and to the Q5id IP, and any updates, additions, modifications, or improvements thereto and all associated Intellectual Property Rights. Licensee will not acquire any ownership interest in or to the Q5id IP under this Agreement. Any goodwill derived from Licensee’s use of the Q5id IP inures to the benefit of Q5id. If Licensee acquires any Intellectual Property Rights in or relating to any product (including the Q5id System & Q5id KYE) under this Agreement (including any rights in any trademarks, derivative works or improvements relating thereto), by operation of law or otherwise, those rights are deemed and are hereby irrevocably assigned by Licensee to Q5id without further action by either Party.
• 8.2. Q5id’s Use of End User Data. See Q5id’s privacy policy (www.q5id.privacy) and the Data Security Addendum for Q5id’s Use of End User Data.
• 8.3. Feedback. Licensee will timely update Q5id about Enrolled User feedback it receives relating to the Q5id System & Q5id KYE on a regular basis, but in no event less frequently than quarterly during the Term. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Q5id suggesting or recommending changes to the Q5id System & Q5id KYE, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), then Q5id is free to use such Feedback. Licensee hereby assigns to Q5id on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to, and Q5id is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Q5id is not required to use any Feedback.

9. Limited Warranties and Warranty Disclaimer.

• 9.1. Mutual Warranties. Each Party represents and warrants to the other that (a) it has the full power to enter into this Agreement and this Agreement constitutes a legal, valid and binding obligation of such Party, (b) this Agreement does not contravene, violate or conflict with any other agreement of such Party with any third party; and (c) it will perform its obligations and duties hereunder; and (d) it will comply with all laws and regulations applicable to it in connection with the performance of its obligations and use of the Q5id System & Q5id KYE under this Agreement.
• 9.2. Q5id Warranties. Q5id represents and warrants that during the Term the Q5id System & Q5id KYE will (a) substantially comply with the Documentation; (b) to Q5id’s knowledge, not violate any third-party Intellectual Property Rights when used in accordance with this Agreement; and (c) to Q5id’s knowledge, not contain any virus or other malicious code. Q5id does not make any representations, warranties or guarantees regarding uptime or availability of the Q5id System & Q5id KYE unless specifically identified in the SLA. Licensee’s sole and exclusive remedy and the entire liability of Q5id and its suppliers and licensors under this Section 9.2 will be, at Q5id’s option, to use all commercially reasonable efforts to repair or replace the Q5id System & Q5id KYE, or if repair or replacement is not possible, to terminate this Agreement and refund to Licensee all prepaid and unused Fees, provided Licensee ceases any further use of the Q5id System & Q5id KYE. THE FOREGOING WARRANTY DOES NOT APPLY, AND Q5ID STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
• 9.3. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 9.1 AND 9.2, THE Q5ID SYSTEM & Q5ID KYE IS PROVIDED “AS IS” AND Q5ID HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Q5ID SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 9.1 AND 9.2, Q5ID MAKES NO WARRANTY OF ANY KIND THAT THE Q5ID SYSTEM & Q5ID KYE OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. LICENSEE ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY Q5ID, OR ANY OTHER PERSON ON Q5ID’S BEHALF, EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY DESCRIBED IN SECTIONS 9.1 AND 9.2 ABOVE.

10. Indemnification.

• 10.1.Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Q5id’s option, defend Q5id and its directors, officers, agents, employees, and contractors, for, from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Q5id resulting from any third-party claim, suit, action, or proceeding (a) claiming that the Licensee Data and/or End User Data, or any use of the Licensee Data and/or End User Data in accordance with this Agreement, infringes or misappropriates such third party’s US Intellectual Property Rights or privacy rights, or violates any data privacy law, or (b) arising from Licensee’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Q5id System & Q5id KYE in a manner not authorized by this Agreement or by any other agreement between an Authorized User and Q5id; (iii) use of the Q5id System & Q5id KYE in combination with data, software, hardware, equipment, or technology not provided by or authorized by Q5id in writing; (iv) modifications to the Q5id System & Q5id KYE not approved in writing by Q5id; or (v) failure to obtain adequate End User permissions or provide legally sufficient disclosures regarding Licensee’s and Q5id’s use of End User Data and Enrollment Data as contemplated under this Agreement. Licensee may not settle any such third-party claim against Q5id unless Q5id consents to such settlement, and further provided that Q5id will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof with counsel of its own choice at Q5id’s expense.
• 10.2.Q5id Indemnification. Q5id shall indemnify, defend, and hold harmless Licensee for, from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Licensee resulting from any third- party claim, suit, action, or proceeding claiming that the Q5id System & Q5id KYE, or Licensee’s use of the Q5id System & Q5id KYE in accordance with this Agreement, infringes, misappropriates or otherwise violates such third party’s US Intellectual Property Rights, provided that Licensee promptly notifies Q5id in writing of the claim, cooperates with Q5id in the defense of the claim, and allows Q5id sole authority to control the defense and settlement of such claim. If a claim that the Q5id System & Q5id KYE infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or proprietary rights is made or appears possible, then Licensee agrees that Q5id may, at Q5id’s sole discretion, (a) modify or replace the Q5id System & Q5id KYE, or component or part thereof, to make it non-infringing, or (b) obtain the right for Licensee to continue to use the Q5id System & Q5id KYE. If Q5id determines that neither alternative is reasonably available, then Q5id may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee, in which case Q5id will refund any prepaid but unearned Fees to Licensee. Q5id’s obligations under this Section 10.2 will not apply to the extent that the alleged infringement arises from: (a) use of the Q5id System & Q5id KYE in combination with data, software, hardware, equipment, or technology not provided by or authorized by Q5id in writing; (b) modifications to the Q5id System & Q5id KYE not made by Q5id; (c) End User Data and Licensee Data; or (d) third-party products. THIS SECTION 10.2 SETS FORTH LICENSEE’S SOLE REMEDIES AND Q5ID’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE Q5ID SYSTEM & Q5ID KYE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.

11. Limitations of Liability. IN NO EVENT WILL Q5ID BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER Q5ID WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL Q5ID’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE TO Q5ID UNDER THIS AGREEMENT IN THE ONE (1)-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Term and Termination. In addition to any termination provisions in the SaaS Agreement, the following will apply:

• 12.1.Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Q5id may terminate this Agreement, effective immediately upon written notice to Licensee, if Licensee: (a) fails to pay any amount when due under the SaaS Agreement, and such failure continues more than thirty (30) days after Q5id’s delivery of written notice thereof; or (b) breaches any of its obligations under Sections 2.3 or 2.6.
• 12.2. Termination for Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
• 12.3.Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement for any reason, Licensee shall ensure all Authorized Users, immediately discontinue use of and access to the Q5id IP, including, without limitation, the Q5id System & Q5id KYE, and, without limiting Licensee’s obligations under Section 6, Licensee shall delete, destroy, or return all copies of the Q5id IP in Licensee’s control or possession and certify in writing to Q5id that the Q5id IP has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Licensee to any refund for services rendered.
• 12.4. Survival. This Section 12.4 and Sections 1, 2.4, 2.5, 4.2, the payment terms in the SaaS Agreement, 6, 7, 8, 9, 10, 11.e, and 12 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13. Miscellaneous.

• 13.1. Entire Agreement. This Agreement, together with Schedules A, B, and C, any SOWs referencing this Agreement, and any other documents incorporated herein by reference and all related exhibits, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Schedules, SOWs, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, the Schedules to this Agreement as of the Effective Date; (iii) third, any SOWs; and (iv) fourth, any other documents incorporated herein by reference.
• 13.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed, in the case of Q5id, to their Registered Agent, SW&W Registered Agents, Inc., as well as their Q5id contracts email (contracts@q5id.com). Both addresses are listed below. In the case of Licensee, to the addresses set forth in the Licensee’s account, or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section 13.2. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 12.2.
  SW&W REGISTERED AGENTS, INC. 1211 SW Fifth Avenue
  Portland, OR 97204
  Email: contracts@q5id.com
• 13.3. Independent Contractors. This Agreement does not create any agency, partnership, or joint venture relationship between Q5id and Licensee. The relationship between the Parties will be that of independent contractors and neither Party will have the authority to bind the other or to hold themselves out as an agent of the other. Except as specified in Section 10, this Agreement is for the sole benefit of the Parties and no other persons will have any right or remedy under this Agreement.
• 13.4. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, except for any obligations to make payments, if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, storm or other natural disaster, pandemic, epidemic, quarantine, explosion, internet or power outages, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or change in or adoption of law, ordinance, rule, regulation, order, judgment or decree and/or any action taken by a governmental or public authority, including imposing an embargo.
• 13.5. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
• 13.6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
• 13.7. Governing Law; Venue. This Agreement is governed by and shall be construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the state or federal courts located in Multnomah County, Oregon, and each Party irrevocably submits to the exclusive jurisdiction of and venue in such courts in any such suit, action, or proceeding.
• 13.8. Assignment. Licensee may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Q5id. Any purported assignment or delegation in violation of this Section 13.8 will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
• 13.9. Anti-Bribery. Neither Party will make or receive any payments or transfers of value in the course of performing activities or obligations under or arising from this Agreement which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or would otherwise be in contravention of U.S. anti-bribery or corruption laws, including but not limited to the Foreign Corrupt Practices Act.
• 13.10. Export Regulation. The Q5id System & Q5id KYE may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Q5id System & Q5id KYE or any Enrollment Data outside the US. Licensee shall also fully comply with all current applicable laws, rules and regulations relating to the export of technical data, including, but not limited to any regulations of the United States Bureau of Industry and Security and other applicable governmental agencies. Licensee hereby assures Q5id that Licensee will not export directly or indirectly technical data (including via remote access, FTP or other means) to any country for which a validated license is required under United States law without first obtaining a validated license. Further, Licensee represents and warrants that it is not considered a national entity of, or under the control of, any country that the United States has then currently imposed an embargo of goods.
• 13.11. US Government Rights. Each of the Documentation and the software components that constitute the Q5id System & Q5id KYE is a “commercial item” as that term is defined as 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Q5id System & Q5id KYE and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
• 13.12. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Licensee, Section 2.3 or Section 8, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
• 13.13. Titles and Headings. The titles, captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. Unless otherwise specifically stated, all references herein to “sections,” “exhibits,” “schedules,” and “appendices” will mean the “sections,” “exhibits,” “schedules,” and “appendices” to this Agreement.
• 13.14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. This Agreement, including any amendment, waiver or modification to it, may be executed by facsimile, e-signature or scanned signatures and such signatures will be deemed to bind each Party as if they were original signatures.

1. Definitions. Unless defined otherwise herein, capitalized terms used in this SLA will have the same meaning as set forth in the Agreement.

• 1.1. “Error” means any failure of the Q5id System & Q5id KYE to conform in any material respect with the Documentation.
• 1.2. “Error Correction” means either a bug fix, patch, or other modification or addition that brings the Q5id System & Q5id KYE into material conformity with the Documentation.
• 1.3. “Priority A Error” means an Error that renders the Q5id System & Q5id KYE inoperative or causes a complete failure of the Q5id System & Q5id KYE, as applicable.
• 1.4. “Priority B Error” means an Error that substantially degrades the performance of the Q5id System & Q5id KYE, as applicable, or materially restricts Licensee’s use of the Q5id System & Q5id KYE, as applicable.
• 1.5. “Priority C Error” means an Error that causes only a minor impact on Licensee’s use of the Q5id System & Q5id KYE, as applicable.

2. Service Levels.

• 2.1. Scheduled Downtime. Q5id will use commercially reasonable efforts to schedule downtime for routine maintenance of the Q5id System & Q5id KYE between the hours of 8:00 p.m. and 4:00 a.m., PST (“Scheduled Downtime”). Q5id Scheduled Downtime shall not exceed (8) hours in any particular instance and twenty (20) hours in aggregate in any given month, unless Licensee is given at least ten (10) days advance written notice and an opportunity to object to the timing of such Scheduled Downtime.
• 2.2. Service Levels. Q5id will use commercially reasonable efforts to make the Q5id System & Q5id KYE available for access and use by Licensee and its End Users over the Internet and operating in material accordance with the Documentation at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any Exception (as defined below) (the “Availability Requirement”). An “Exception” is any unavailability or impaired ability of Licensee or its End Users to access or use the Q5id System & Q5id KYE that is due, in whole or in part, to: (i) any access to or use of the Q5id System & Q5id KYE by Licensee or any User, or use of Licensee’s or an Authorized User’s access credentials, that does not strictly comply with the Agreement and the Documentation; (ii) Licensee’s, Authorized Users’ or End User’s Internet connectivity; (iii) a Force Majeure Event; (iv) a failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Q5id pursuant to the Agreement; (v) Scheduled Downtime; or (vi) any disabling, suspension, or termination of the Q5id System & Q5id KYE pursuant to Section 2.3 below, the SaaS Agreement, or the Terms and Conditions.
• 2.3. Suspension. Q5id may temporarily suspend Licensee’s and any Authorized User’s or End User’s access to any portion or all of the Q5id System & Q5id KYE if: (i) Q5id reasonably determines that (A) there is a threat or attack on any of Q5id’s intellectual property; (B) Licensee’s or any Authorized User’s or End User’s use of the Q5id System & Q5id KYE disrupts or poses a security risk to Q5id or to any other customer or vendor of Q5id; (C) Licensee, or any Authorized User’s or End User, is using the Q5id System & Q5id KYE for fraudulent or illegal activities; or (D) Q5id’s provision of the Q5id System & Q5id KYE to Licensee or any Authorized User’s or End User is prohibited by applicable law; (ii) any vendor of Q5id has suspended or terminated Q5id’s access to or use of any third-party services or products required to enable Licensee and End Users to access the Q5id System & Q5id KYE; or (iii) in accordance with Section 2.2 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Q5id shall use commercially reasonable efforts to provide advance written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the Q5id System & Q5id KYE following any Service Suspension. Q5id shall use commercially reasonable efforts to resume providing access to the Q5id System & Q5id KYE as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Q5id will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User’s or End User may incur as a result of a Service Suspension.

3. Error Reporting and Resolution.

• 3.1. Error Reporting. Q5id will provide Licensee with telephone customer support twenty-four (24) hours per day, seven (7) days per week, including Q5id holidays, for the reporting of Priority A Errors, and telephone support between 5:00 a.m. PST and 5:00 pm PST Monday through Friday, excluding Q5id holidays, for the reporting of Priority B and Priority C Errors. Licensee will report all Errors in the Q5id System & Q5id KYE to Q5id in sufficient detail, with sufficient explanation of the circumstances under which the Error occurred or is occurring for Q5id to recreate the Error and will reasonably classify the Error as a Priority A, B, or C Error. Licensee acknowledges that if Q5id is not able to recreate the Error, then Q5id will not be able to correct the Error.
• 3.2. Q5id System & Q5id KYE Error Resolution. Q5id will use commercially reasonable efforts to correct any Error in the Q5id System & Q5id KYE reported by Licensee, in accordance with the priority level assigned by Q5id to such Error, as follows:
• 3.3. Priority A Errors. In the event of a Priority A Error, Q5id will, within four (4) hours of receiving Licensee’s report, commence verification of the Error. Upon verification, Q5id will use commercially reasonable efforts to resolve the Error with an Error Correction; to provide a workaround for the Error within twenty- four (24) hours of receiving Licensee’s report of such Error, and an Error Correction within forty-eight (48) hours of receiving Licensee’s report. Q5id will provide Licensee with periodic reports (no less frequently than once every eight (8) hours) on the status of the Error Correction.
• 3.4. Priority B Errors. In the event of a Priority B Error, Q5id will, within six (6) hours of receiving Licensee’s report, commence verification of the Error. Upon verification, Q5id will use commercially reasonable efforts to resolve the Error with an Error Correction; to provide a workaround for the Error within forty- eight (48) hours of receiving Licensee’s report of such Error, and an Error Correction within six (6) business days of receiving Licensee’s report. Q5id will provide Licensee with periodic reports (no less frequently than once every twelve (12) hours) on the status of the Error Correction.
• 3.5. Priority C Errors. In the event of a Priority C Error, Q5id will, within two (2) business days of receiving Licensee’s report, commence verification of the Error. Upon verification, Q5id will use commercially reasonable efforts to resolve the Error with an Error Correction; to provide a workaround for the Error within six (6) business days of receiving Licensee’s report of such Error, and an Error Correction within three (3) weeks of receiving Licensee’s report. Q5id will provide Licensee with periodic reports on the status of the Error Correction

This Q5id, Inc. (“Q5id”, “we”, “our”, or “us”), Data Processing & Security Addendum and its Annexes (collectively, this “DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by Q5id in connection with the Q5id Statement of Work or SaaS Agreement between Licensee and Q5id (referred to herein as the “Agreement”).Specifically, this DPA applies to the processing of Customer Data. “Customer Data” means any data processed by Q5id on behalf of Customer and at Customer’s direction but does not include End User Data. When Q5id collects End User Data, it does so as the controller of that data, in connection with the direct contractual relationship between Q5id and the services it provides to the End User.
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, or as an executed exhibit, attachment, or addendum to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
We may update our data processing practices from time to time. If you are an active Q5id customer (“Customer”), we will let you know when we do via email or through our App (or as otherwise described in the Agreement).
The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.
1. Definitions
2. Customer Responsibilities
3. Q5id Obligations
4. Data Subject Requests
5. Sub-Processors
6. Data Transfers
7. Additional Provisions for European Data
8. Additional Provisions for California Personal
Information
9. General Provisions
10. Parties to this DPA
Annex 1 – Details of Processing
Annex 2 – Security Measures
Annex 3 – Standard Contractual Clauses

1. Definitions

“California Personal Information” means Personal Data that is subject to the protection of the CCPA.
“CCPA” means California Civil Code Sec. 1798.100 et seq.
(also known as the California Consumer Privacy Act of 2018).
“Consumer”, “Business”, “Self” and “Service Provider” will have the meanings given to them in the CCPA.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer Data” means any data processed by Q5id on behalf of Customer and at Customer’s direction, but not including End User Data.
“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated, or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“Europe” means the European Union, the European Economic Area and/or their member states, Switzerland, and the United Kingdom.
“European Data” means Personal Data that is subject to the
protection of European Data Protection Laws.
“European Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) in respect of the United Kingdom, any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union; and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.
“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action regarding Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Permitted Affiliates” means any of your Affiliates that (i) are permitted to use the Services pursuant to the Agreement but have not signed their own separate agreement with us and are not a “Customer” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services. “Personal Data Breach” will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“Privacy Shield” means the EU-U.S. and Swiss-US Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission, as may be amended, superseded, or replaced.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the standard contractual clauses for Processors approved by the European Commission in the form set out at Annex 3, as may be amended, superseded, or replaced.
“Sub-Processor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Services under the Agreement. Sub- Processors may include third parties or our Affiliates but will exclude any Q5id employee or consultant.

2. Customer Responsibilities

• a. Compliance with Laws. Within the scope of the Agreement and in its use of the services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.
  In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. You will inform us without undue delay if it is not able to comply with its responsibilities under this sub-section (a) or applicable Data Protection Laws.
• b.Controller Instructions. The parties agree that the Agreement (including this DPA), together with your use of the Service in accordance with the Agreement, constitute your complete and final Instructions to us in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between us and you.

3. Q5id Obligations

• a.Compliance with Instructions. We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.
• b. Conflict of Laws. If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Services until such time as you issue new lawful Instructions regarding the Processing.
• c. Security. We will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Annex 2 to this DPA (“Security Measures”). Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.
• d. Confidentiality. We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
• e. Personal Data Breaches. We will notify you without undue delay after it becomes aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.
• f. Deletion or Return of Personal Data. We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Service in accordance with the procedures and timeframes set out in the Agreement, save that this requirement shall not apply to the extent we are required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back- up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with its deletion practices. You may request the deletion of your Q5id account after expiration or termination of your Agreement. You may retrieve your Customer Data from your account in accordance with our ‘Retrieval of Customer Data’ sections throughout our Product Specific Terms.

4. Data Subject Requests

The Service provides you with a number of controls that you can use to retrieve, correct, delete or restrict Personal Data, which you can use to assist it in connection with its obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”).
To the extent that you are unable to independently address a Data Subject Request through the Service, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. You shall reimburse us for the commercially reasonable costs arising from this assistance.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you via email and will advise the Data Subject to submit their request to you directly. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

5. Sub-Processors

You agree that we may engage Sub-Processors to Process Personal Data on your behalf.
Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

6. Data Transfers

You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Service in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by Q5id in the United States and to other jurisdictions where Q5id Affiliates and Sub-Processors have operations. We will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

7. Additional Provisions for European Data

• a.Scope of Section 7. This ‘Additional Provisions for European Data’ section shall apply only with respect to European Data.
  b. Roles of the Parties. When Processing European Data in accordance with your Instructions, the parties acknowledge and agree that you are the Controller of European Data and we are the Processor.
• c. Instructions. If we believe that your Instruction infringes European Data Protection Laws (where applicable), we will inform you without delay.
• d. Notification and Objection to New Sub-Processors. We will notify you of any changes to Sub-processors and will give you the opportunity to object to the engagement of the new Sub- Processor on reasonable grounds relating to the protection of Personal Data within 30 days after notification. If you do notify us of such an objection, the parties will discuss your concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, we will, at our sole discretion, either not appoint the new Sub-Processor, or permit you to suspend or terminate the affected Service in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by you prior to suspension or termination).
• e. Data Protection Impact Assessments and Consultation with Supervisory Authorities. To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws.
• f. Transfer Mechanisms for Data Transfers.
  • (A) Q5id shall not transfer European Data to any country or
  recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.
  • (B)Youacknowledgethatinconnectionwiththeperformance of the Services, Q5id is a recipient of European Data in the United States. The parties acknowledge and agree the following:
  • (i) Standard Contractual Clauses: Q5id agrees to abide by and process European Data in compliance with the Standard Contractual Clauses.
  • (ii) Privacy Shield: Q5id does not currently rely on the EU- US Privacy Shield as a legal basis for transfers of Personal Data. Q5id will let you know if in the future it will process European Data in compliance with Privacy Shield requirements.
  (C) The parties agree that (i) purely for the purposes of the descriptions in the Standard Contractual Clauses, Q5id will be deemed the “data importer” and Customer will be deemed the “data exporter” (notwithstanding that you may yourself be located outside Europe and/or be acting as a processor on behalf of third party controllers), (ii) notwithstanding the foregoing, where the Q5id contracting entity under the Agreement is not Q5id, You provide such contracting entity with a mandate to enter into the Standard Contractual Clauses with Q5id in its name and on its behalf, such contracting entity (not Q5id) will remain fully and solely responsible and liable to you for the performance of the Standard Contractual Clauses by Q5id, and you will direct any instructions, claims or enquiries in relation to the Standard Contractual Clauses to such contracting entity; and (iii) if and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the Standard Contractual Clauses will prevail to the extent of such conflict.
• g.Demonstration of Compliance. We will make all information reasonably necessary to demonstrate compliance with this DPA available to you and allow for and contribute to audits, including inspections by you in order to assess compliance with this DPA. You acknowledge and agree that you will exercise your audit rights under this DPA by instructing us to comply with the audit measures described in this sub-section (g). You acknowledge that the Service is hosted by our data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001) and that our systems are regularly tested by independent third-party penetration testing firms. Upon request, we will supply (on a confidential basis) a summary copy of its penetration testing report(s) to you so that you can verify our compliance with this DPA. Further, at your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year.

8. Additional Provisions for California Personal Information

• a.Scope of Section 8. The ‘Additional Provisions for California Personal Information’ section of the DPA will apply only with respect to California Personal Information.
• b. Roles of the Parties. When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business and we are a Service Provider for the purposes of the CCPA.
• c. Responsibilities. The parties agree that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Services and Consulting Services under the Agreement (the “Business Purpose”) or as otherwise permitted by the CCPA, including as described in the ‘Data Practices and Machine Learning’ section of our Product Specific Terms.

9. General Provisions

• a. Amendments. Notwithstanding
  contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms in the Agreement that apply regarding modifications or revisions will apply.
• b. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.
• c.Limitation of Liability. Each party and each of their Affiliates’ liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the ‘Limitation of Liability’ section of the Agreement and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if Q5id is not a party to the Agreement, the ‘Limitation of Liability’ section of the Agreement will apply as between you and Q5id, and in such respect any references to ‘Q5id’, ‘we’, ‘us’ or ‘our’ will include both Q5id and the Q5id entity that is a party to the Agreement.
• d.Governing Law. This DPA will be governed by and construed in accordance with the governing law terms and provisions set forth in the Agreement, unless required otherwise by Data Protection Laws.

10. Parties to this DPA

• a. Permitted Affiliates. By signing the Agreement, you enter into this DPA on behalf of yourself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of your Permitted Affiliates, thereby establishing a separate DPA between us and each such Permitted Affiliate subject to the Agreement and the ‘General Provisions’ and ‘Parties to this DPA’ sections of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the terms “Customer”, “you” and “your” will include you and such Permitted Affiliates.
• b. Authorization. The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.
• c. Remedies. Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against us directly by itself, the parties agree that (i) solely the Customer entity that is the contracting party to the Agreement will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all communication with us under the DPA and will be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates.
• d. Other rights. The parties agree that you will, when reviewing our compliance with this DPA pursuant to the ‘Demonstration of Compliance’ section, take all reasonable measures to limit any impact on us and our Affiliates by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.

Annex 1 – Details of Processing

This Annex forms part of the DPA.

A. Nature and Purpose of Processing

We will Process Personal Data as necessary to provide the Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by you in your use of the Services.

B. Duration of Processing

Subject to the ‘Deletion or Return of Personal Data’ section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

C. Categories of Data subjects

You may submit Personal Data in the course of using the Service, to the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Your Contacts and other end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.

D. Categories of Personal Data

You may submit Personal Data to the Service, to the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data:

•  Contact Information (as defined in the Agreement).
• Any other Personal Data submitted by, sent to, or received by
  you, or your end users, via the Service.

E. Special categories of data (if appropriate)

The parties do not anticipate the transfer of special categories of data.

F. Processing operations

Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:

• a. Storage and other Processing necessary to provide, maintain and improve the Services provided to you; and/or
• b. Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.

Annex 2 – Security Measures

This Annex forms part of the DPA.
We currently observe the Security Measures described in this
Annex 2. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.

• a) Access Control
  i) Preventing Unauthorized Product Access
  Outsourced processing: We host our Service with outsourced cloud infrastructure providers. Additionally, we maintain contractual relationships with vendors in order to provide the Service in accordance with our DPA. We rely on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
  Physical and environmental security: We host our product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.
  Authentication: We implement a uniform password policy for our customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data.
  Authorization: Customer Data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of our products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
  Application Programming Interface (API) access: Public product APIs may be accessed using an API key or through OAuth authorization.
  ii) Preventing Unauthorized Product Use
  We implement industry standard access controls and detection capabilities for the internal networks that support its products.
  Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
  Intrusion detection and prevention: We implement a Web Application Firewall (WAF) solution to protect hosted customer websites and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
  Static code analysis: Security reviews of code stored in our source code repositories is performed, checking for coding best practices and identifiable software flaws.
  Penetration testing: We maintain relationships with industry recognized penetration testing service providers for four annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
  Bug bounty: A bug bounty program invites and incentivizes independent security researchers to ethically discover and disclose security flaws. We implement a bug bounty program in an effort to widen the available opportunities to engage with the security community and improve the product defenses against sophisticated attacks.
  iii) Limitations of Privilege & Authorization Requirements
  Product access: A subset of our employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access is enabled through “just in time” requests for access; all such requests are logged. Employees are granted access by role, and reviews of high- risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months.
  Background checks: All Q5id employees undergo a third- party background check prior to being extended an employment offer, in accordance with and as permitted by the applicable laws. All Q5id employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
• b) Transmission Control
  In-transit: We make HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer site hosted on the Q5id products. Our HTTPS implementation uses industry standard algorithms and certificates.
  At-rest: We store user passwords following policies that follow industry standard practices for security. We have implemented technologies to ensure that stored data is encrypted at rest.
• c) Input Control
  Detection: We designed our infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Our personnel, including security, operations, and support personnel, are responsive to known incidents.
  Response and tracking: We maintain a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, we will take appropriate steps to minimize product and Customer damage or unauthorized disclosure. Notification to you will be in accordance with the terms of the Agreement.
• d) Availability Control
  Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
  Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
  Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods. Our products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists our operations in maintaining and updating the product applications and backend while limiting downtime.

Annex 3 – Standard Contractual Clauses

This Annex forms part of the DPA.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection;
The Customer, as defined in the Q5id Customer Terms of Service (the “data exporter”)
And
Q5id Inc., 6799 NE Bennett Street, Hillsboro, OR 97124 (the “data importer”), each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1
Definitions

• For the purposes of the Clauses:
  ‘personal data’, ‘special
  ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; ‘the data exporter’ means the controller who transfers the personal data; ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC ‘the sub processor’ means any processor engaged by the data importer or by any other sub processor of the data importer who agrees to receive from the data importer or from any other sub processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2
Details of the transfer

• The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3
Third-party beneficiary clause

• 1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
• 2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
• 3. The data subject can enforce against the sub processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub processor shall be limited to its own processing operations under the Clauses.
• 4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:

• (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
• (b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
• (c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
• (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
• (e) that it will ensure compliance with the security measures; (f) that, if the transfer involves special categories of data, the
  data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
• (g) to forward any notification received from the data importer or any sub processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
• (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
• (i) that, in the event of sub processing, the processing activity is carried out in accordance with Clause 11 by a sub processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
• (j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5
Obligations of the data importer
The data importer agrees and warrants:

• (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
• (c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
• (d) that it will promptly notify the data exporter about:
  • (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
  • (ii) any accidental or unauthorized access; and
  • (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
• (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
• (f) at the request of the data exporter to submit its data- processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
• (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
• (h) that, in the event of sub processing, it has previously informed the data exporter and obtained its prior written consent;
• (i) that the processing services by the sub processor will be carried out in accordance with Clause 11;
• (j) to send promptly a copy of any sub processor agreement it concludes under the Clauses to the data exporter.

Clause 6
Liability

• 1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub processor is entitled to receive compensation from the data exporter for the damage suffered.
• 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub processor of its obligations in order to avoid its own liabilities.
• 3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub processor agrees that the data subject may issue a claim against the data sub processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub processor shall be limited to its own processing operations under the Clauses.

Clause 7
Mediation and jurisdiction

• 1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
  (a) toreferthedisputetomediation,byanindependentperson or, where applicable, by the supervisory authority;
  (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
• 2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8
Cooperation with supervisory authorities

• 1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
• 2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
• 3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub processor preventing the conduct of an audit of the data importer, or any sub processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9
Governing law

• The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10
Variation of the contract

• The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11
Sub processing

• 1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub processor which imposes the same obligations on the sub processor as are imposed on the data importer under the Clauses. Where the sub processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub processor’s obligations under such agreement.
• 2. The prior written contract between the data importer and the sub processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub processor shall be limited to its own processing operations under the Clauses.
• 3. The provisions relating to data protection aspects for sub processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
• 4. The data exporter shall keep a list of sub processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12
Obligation after the termination of personal data-
processing services

• 1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
• 2. The data importer and the sub processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Standard Contractual Clauses (the ‘Clauses’).
Defined terms used in this Appendix 1 shall have the meaning given to them in the Agreement (including the DPA).

• Data exporter. The data exporter is the legal entity specified as “Customer” in the DPA.
• Data importer. The data importer is Q5id
• Data subjects. Please see Annex 1 of the DPA, which
  describes the data subjects.
• Categories of data. Please see Annex 1 of the DPA, which describes the categories of data.
• Special categories of data (if appropriate). The parties do not anticipate the transfer of special categories of data.
• Purposes of Processing. Q5id shall process personal data as necessary to provide the Services to data exporter in accordance with the Agreement.
• Processing operations. Please see Annex 1 of the DPA, which describes the processing operations.

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Standard Contractual Clauses (the ‘Clauses’). Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Please see Annex 2 of the DPA, which describes the technical and organizational security measures implemented by Q5id.

Appendix 3 to the Standard Contractual Clauses

This Appendix forms part of the Standard Contractual Clauses (the ‘Clauses’).
This Appendix sets out the parties’ interpretation of their respective obligations under specific terms of the Clauses. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.
For the purposes of this Appendix, “DPA” means the Data Processing Agreement in place between Customer and Q5id and to which these Clauses are incorporated and “Agreement” shall have the meaning given to it in the DPA.

Clause 4(h) and 8: Disclosure of these Clauses

• a. Data exporter agrees that these Clauses constitute data importer’s Confidential Information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer’s prior written consent unless permitted pursuant to Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.

Clauses 5(a) and 5(b): Suspension of data transfers and termination:

• a. The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.
• b. The parties acknowledge that if data importer cannot provide such compliance in accordance with Clauses 5(a) and 5(b) for whatever reason, the data importer agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract the affected parts of the Services in accordance with terms of the Agreement.
• c. If the data exporter intends to suspend the transfer of personal data and/or terminatethe affected parts of the Service, it shall endeavor to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).
• d. If required, the parties shall reasonably cooperate with each other during the Cure Period to agree what additional safeguards or other measures, if any, may be reasonably required to ensure the data importer’s compliance with the Clauses and applicable data protection law.
• e. If after the Cure Period, the data importer has not or cannot cure the non-compliance then the data exporter may suspend and/or terminate the affected part of the Services in accordance with the provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by the data exporter prior to suspension or termination). The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.

Clause 5(f): Audit

• a. Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in the ‘Demonstration of Compliance’ section of the DPA.

Clause 5(j): Disclosure of sub processor agreements

• a. The parties acknowledge the obligation of the data importer to send promptly a copy of any onward sub processor agreement it concludes under the Clauses to the data exporter.
• b. The parties further acknowledge that, pursuant to sub processor confidentiality restrictions, data importer may be restricted from disclosing onward sub processor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any sub processor it appoints to permit it to disclose the sub processor agreement to data exporter.
• c. Even where data importer cannot disclose a sub processor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably requires in connection with such sub processing agreement to data exporter.

Clause 6: Liability

• a. Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event shall any party limit its liability with respect to any data subject rights under these Clauses.

Clause 11: Onward sub processing

• a. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled “FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC” the data exporter may provide a general consent to onward sub processing by the data importer.
• b. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward sub processors. Such consent is conditional on data importer’s compliance with the requirements set out in the ‘Notification and Objection to New Sub-Processors’ section of the DPA.

Clause 12: Obligation after the termination of personal data-processing services

• a. Data importer agrees that the data exporter will fulfil its obligation to return or destroy all the personal data on the termination of the provision of data-processing services by complying with the ‘Deletion or Return of Personal Data’ section of the DPA