ACTIAN DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) forms part of, is incorporated by reference to, and is governed by, the terms and conditions of the Actian DataCloud Services Agreement or such other agreement expressly referencing this DPA, as may be updated from time to time, between Actian Corporation (“Actian, “We”, “Our” or “Us”) and You (the “Agreement”). The parties enter into this DPA on behalf of themselves and, to the extent required under applicable Data Protection Laws, in the name and on behalf of their Affiliates (as defined herein), if and to the extent Actian or its Subprocessor processes Personal Data for which such Authorized Affiliates qualify as the Controller. For purposes of this DPA only and where applicable, “You” and “Your” shall include You and Your Authorized Affiliates, and “We,” “Our” and “Us” shall include Actian and its Affiliates, except where indicated otherwise. Except as modified below, the terms of the Agreement shall remain in full force and effect. You are consenting to be bound by this DPA by entering into the Agreement with Actian. If you are entering into this DPA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity.

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

a. “Actian Security Policy” means the Actian Security Policy, which is incorporated into and forms part of this DPA by reference and is applicable to the Services purchased by You, as updated from time to time, and accessible at http://esdcdn.actian.com/DataCloud_Docs/Cloud-Security-Policy.htm.

b. "Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the subject party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

c. “Authorized Affiliates” means any of Your Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between You and Actian, but has not signed its own Order Form or Agreement with Actian.

d. "Applicable Laws" means (a) European Union or Member State laws with respect to any Personal Data in respect of which You or Your Affiliates are subject to Data Protection Laws; and (b) any other applicable law with respect to any Personal Data in respect of which You or Your Affiliates are subject to any other Data Protection Laws.

e. "Data Protection Laws" means all laws and regulations applicable to the Processing of Personal Data under the Agreement.

f. "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

g. "Restricted Transfer" means:

i. a transfer of Personal Data from You or Your Affiliate to Actian or its Subprocessor; or

ii. an onward transfer of Your Data from Actian to its Subprocessor, from a Subprocessor to Actian or another Subprocessor, or between two establishments of Subprocessor,

in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 11 below;

h. “Security Incident” means the accidental or unlawful destruction, loss, alteration unauthorized disclosure of, or access to Your Content, including Personal Data, transmitted stored or otherwise Processed by Actian or its Subprocessors of which Actian becomes aware.

i. "Services" means the services and other activities to be supplied to or carried out by Us or on Our behalf for You as further defined in the Agreement;

j. "Standard Contractual Clauses" means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 12.e;

k. "Subprocessor" means any person (including any third party and any Actian Affiliate, but excluding an employee of Actian) appointed by or on behalf of Actian or any Actian Affiliate to Process Personal Data on Your behalf in connection with the Agreement; and

l. The terms, "Commission," "Controller", "Data Subject," "Member State" "Personal Data,” “Personal Data Breach," "Processing," “Processor,” and "Supervisory Authority" shall have the same meaning as in the GDPR.

2. Processing of Personal Data

a. With regard to the Processing of Personal Data provided by You to Us as part of Us providing You with the Services, You are the Controller, and We are or Our Subprocessor is the Processor.

b. If You are also a Processor of the Personal Data, acting on behalf of a third-party data Controller, in Your use of the Services, You shall Process Personal Data in accordance with Applicable Laws. You shall be solely responsible for the accuracy, quality and legality of Personal Data and the means by which You acquired Personal Data. In addition, You agree that: (i) You will comply with Your obligations under Data Protection Laws in respect of Your processing of Personal Data, including any obligations specific to Your role as a Data Controller (under applicable Data Protection Laws); and (ii) You have provided all notice and obtained all consents, permissions and rights necessary under Data Protection Laws for Us to lawfully process Personal Data as part of the Services.

c. We and our Subprocessor shall only Process Personal Data on behalf of and in accordance with Your documented instructions, and You agree that the Agreement including this DPA sets forth Your complete and final instructions to Us in relation to the Processing of Personal Data. To the extent that We cannot comply with a change to Your instructions without incurring material additional costs, We shall: (i) inform You, giving details of the problem; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received.

d. You instruct Actian and each Actian Affiliate (and authorize Actian and each Actian Affiliate to instruct each Subprocessor) to (1) Process Personal Data; and (2) in particular, transfer Personal Data to any country or territory, both as reasonably necessary for the provision of the Services and consistent with the Agreement.

e. You warrant and represent that (1) You are and will at all relevant times remain duly authorized to give the instruction set out in Section 2.c on behalf of each of Your Affiliates and each relevant Data Subject, and (2) Your directions and instructions comply with Applicable Laws.

f. Annex 1 to this DPA sets out certain information regarding Our and Our Subprocessor’s Processing of the Personal Data as required by article 28(3) of the GDPR. Nothing in Annex 1 confers any right or imposes any obligation on any party to this DPA.

g. Notwithstanding anything in this Agreement to the contrary, nothing herein shall require or obligate Us to Process any data or information in violation of Applicable Laws.

3. Confidentiality. Actian and each of Our Affiliates shall treat Personal Data as Confidential Information and take reasonable steps to restrict access to Personal Data to only those individuals who need to know and/or access Personal Data as necessary for the purposes of the Agreement and ensure those individuals are bound by confidentiality obligations.

4. Security. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Actian and each Actian Affiliate shall in relation to Personal Data implement reasonable technical and organizational measures to establish a level of security appropriate to that risk as set forth in the Actian Security Policy.

5. Subprocessing

a. You and Your Affiliates consent to and authorize Actian and each Actian Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 5 to appoint) Subprocessors in accordance with this section 5 and any restrictions in the Agreement.

b. Actian and each Actian Affiliate may continue to use those Subprocessors already engaged by Actian or any Actian Affiliate as at the date of this DPA. Actian or an Actian Affiliate has entered into a written agreement with each Subprocessor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Your Content to the extent application to the nature of the Services provide by such Subprocessor.

c. Annex 3 to this DPA contains the current list of Subprocessors for the Services. We shall give You prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within ten (10) days of receipt of that notice, You notify Us in writing of any objections (on reasonable grounds) to the proposed appointment:

i. We will use reasonable efforts to make available a change in the provision of the Services which avoids the use of that proposed Subprocessor; and

ii. where such a change cannot be made within sixty (60) from Our receipt of Your notice, notwithstanding anything in the Agreement, You may by written notice to Us with immediate effect terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor.

d. With respect to each Subprocessor, Actian or the relevant Actian Affiliate shall be liable for the acts and omissions of its Subprocessors to the same extent Actian would be alible if performing the services of each Subprocessor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

e. Notwithstanding Your and Your Affiliates’ objection rights set forth above, We may change a Subprocessor where the reason for the change is outside Our reasonable control. In this case, We will inform You of the replacement as soon as reasonably practical and You shall retain the right to object to any such Subprocessor.

6. Data Subject Rights

a. To the extent legally permitted, We shall notify you promptly if We receive a request from a Data Subject to exercise the Data Subject’s rights under Data Protection Laws. We shall provide You with reasonable assistance including by the technical and organizational measures as reasonably practicable to enable You to respond to any inquiry, communication or request from a Data Subject seeking to exercise its right under applicable Data Protection Laws.

b. To the extent legally permitted, You shall be responsible for any costs arising from Our provision of such assistance. For the avoidance of doubt, You are responsible for responding to Data Subject request for access, correction, restriction, objection, erasure or data portability of that Data Subject’s Personal Data.

7. Personal Data Security Incident Management and Notification. Upon becoming aware of a Security Incident, We shall notify You without undue delay and pursuant to the terms of the Agreement, but within no more than seventy-two (72) hours and shall provide, at Your cost and expense, such timely information as You may reasonably require, that is in Our reasonable possession or control, to enable You to fulfill any data breach reporting obligations under applicable Data Protection laws. To the extent the Security Incident was a result of circumstances in Our reasonable control, We will make reasonable efforts to identify and take those steps as We deem necessary and reasonable in order to remediate the cause of such Security Incident. The obligations herein shall not apply to incidents that are caused by You or Your users.

8. Data Protection Impact Assessment and Prior Consultation. We shall, to the extent required by applicable Data Protection Laws, provide You with reasonable assistance, at Your expense, with data impact assessments or prior consultations with data protection authorities that You are required to carry out under applicable Data Protection Laws.

9. Deletion or return of Your Personal Data

a. Subject to sections 9.b and 9.c, We and each of Actian Affiliate shall promptly and in any event within thirty (30) days of the date of cessation of any Services involving the Processing of Your Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Your Personal Data in Our or in an Actian Affiliate’s possession or control to the extent allowed under Applicable Laws.

b. Subject to section 9.c, You may by written notice to Us with at least thirty (30) days prior to the Cessation Date require Us and each Actian Affiliate to (a) return a complete copy of all Your Personal Data in Our or in an Actian Affiliates’ possession or control to You by secure file transfer in such format as is reasonably notified by You to Actian; and (b) delete and procure the deletion of all other copies of Your Personal Data Processed by Actian or its Subprocessors. We and each Actian Affiliate shall comply with any such written request within thirty (30) days of the Cessation Date. If Actian does not receive notice within the notice period, then the data will be deleted after the Cessation Date, unless Actian is required to retain any such data by Applicable Laws.

c. We and Our Subprocessors may retain Your Personal Data to the extent permitted by Applicable Laws and only to the extent and for such period as required by Applicable Laws, in which case, Actian and each Actian Affiliate shall maintain the confidentiality of Your Personal Data and only Process Your Personal Data as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.

10. Audit Rights

a. Subject to sections 10.b to 10.d, We and each of Our Actian Affiliates shall make available to You on written request all information reasonably necessary and in Our possession or control to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by You or an auditor mandated by You in relation to the Processing of Your Personal Data by Us or a Subprocessor.

b. You shall give Actian or the relevant Actian Affiliate reasonable notice of any audit or inspection of at least sixty (60) days to be conducted under section 10.a and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to Our premises, equipment, personnel and business while Your personnel are on those premises in the course of such an audit or inspection. We or Our Affiliates need not give access to its premises for the purposes of such an audit or inspection:

i. to any individual unless he or she produces reasonable evidence of identity and authority;

ii. outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Actian or the relevant Actian Affiliate undertaking an audit has given notice to Actian or the relevant Actian Affiliate that this is the case before attendance outside those hours begins; or

iii. for the purposes of more than one audit or inspection, in any calendar year, except for any additional audits or inspections which:

1. is necessary because of genuine concerns as to Actian's or the relevant Actian Affiliate’s compliance with this DPA; or

2. You are or Your Affiliate is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,

where You have identified Your concerns or the relevant requirement or request in Your notice to Actian or the relevant Actian Affiliate of the audit or inspection.

iv. We reserve the right to charge a fee for each audit/inspection (such fee to be based on Our reasonable costs and expenses incurred in cooperating with such inspection/audit.

11. Restricted Transfers

a. Subject to section 11.c, You and each of Your Affiliates (as "data exporter") and Actian or its Subprocessor, as appropriate, (as "data importer") hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from Your or Your Affiliate to Actian or the Subprocessor.

b. The Standard Contractual Clauses shall come into effect under section 11.a on the later of:

i. the data exporter becoming a party to them;

ii. the data importer becoming a party to them; and

iii. commencement of the relevant Restricted Transfer.

c. Section 11.a shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.

12. General Terms

a. IN NO EVENT SHALL OUR AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL WE AND/OR OUR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS DPA, THE AGREEMENT OR THE SERVICES, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT (OR SUCH PARTY'S LICENSORS) HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAWS.

b. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:

i. the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and

ii. this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.

c. Nothing in this DPA reduces Actian's or any Actian Affiliate’s obligations under the Agreement in relation to the protection of Personal Data or permits Actian or any Actian Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

d. Subject to section 12.b, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.

e. You may:

i. by at least 30 (thirty) calendar days' written notice to Actian from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and

ii. propose any other variations to this DPA which You reasonably consider to be necessary to address the requirements of any Data Protection Law.

f. If You give notice under section 12.e.i, You shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Actian to protect Actian or its Subprocessor against additional risks associated with the variations made under section 12.e.i.

g. If You give notice under section 12.e.ii, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Your notice as soon as is reasonably practicable.

h. Neither You nor Actian shall require the consent or approval of any of Your Affiliate or Actian Affiliate to amend this DPA pursuant to this section 12.e or otherwise.

i. Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

Annex 2 to DPA

STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

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 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:

(a) ‘personal data’, ‘special categories of data’, ‘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;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘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;

(d) ‘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;

(e) ‘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;

(f) ‘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 of 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) to refer the dispute to mediation, by an independent person 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 Clauses and must be completed and signed by the parties

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

The data exporter is the party to the Data Processing Addendum with Actian and is a party to the Agreement with data importer and to which these Clauses are attached.

Data importer

The data importer is (please specify briefly activities relevant to the transfer): Actian Corporation, a provider of database management and data analytics software and related services, which may process Personal Data in providing cloud services to data exporter in accordance with the terms of the Agreement.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

Data exporter may submit Personal Data to the Actian DataCloud Services, the extent of which is determined and controlled by data exporter in its sole discretion. Specifically, such Personal data may relate to the following categories of data subjects:

· Prospects, customers, business partners and vendors of data exporter (who are natural persons)

· Employees, individual contractors, or contact persons of data exporter’s prospects, customers, business partners and vendors

· Employees, agents, advisors, contractors and other authorized representatives of data exporter (who are natural persons)

Categories of data

The personal data transferred concern the following categories of data (please specify):

· First and last name

· Title, Job Position

· Employer

· Contact information (company, email, phone, physical business address)

· ID data

· Professional life data

· Personal life data

· Connection data

· Localization data

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

Data exporter may provide special categories of data exporter, the extent of which is determined and controlled by the data exporter in its sole discretion, including but not limited to:

· racial or ethnic origin

· political opinions

· religious or philosophical beliefs

· trade union membership

· genetic data, biometric data for the purpose of uniquely identifying a natural person

· data concerning health

· data concerning a natural person’s sex life or sexual orientation

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

Data exporter may access the Personal Data while providing services supporting the Actian DataCloud Services.

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed.

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):

Data importer will maintain technical and organization security measures as described the Actian Security Policy applicable to cloud services offered by data importer and purchased by data exporter. The Actian Security Policy is available at http://esdcdn.actian.com/DataCloud_Docs/Cloud-Security-Policy.htm or otherwise made available by data importer. Data importer will not materially modify the Actian Security Policy during the term.