Cloudpager Terms of Service

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF NUMECENT’S CLOUDPAGER OR “SERVICE(S).” IF YOU REGISTER FOR A FREE PREVIEW OF CLOUDPAGER, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE CLOUDPAGER.

1. Definitions

“Account Data” means the account and contact information submitted to the Services by You or End Users.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Agreement” means this Terms of Service document.

“Application” means the PC Software which will be delivered through Cloudpager and provided to Users in accordance with the terms of this Agreement.

“Beta Services” means the free trial or preview of the beta version of Cloudpager not made generally available to customers.

“Cloudified or Cloudify” shall mean the process of converting a PC Software application with Numecent’s tools into a proprietary Numecent format which format allows it to become deliverable from Cloudpager to a client device running the Cloudpaging software, on demand and with optional license control.

“Cloudpager” means the services Numecent makes available through this website, including this website, the Numecent Cloudpaging platform, [the Numecent APIs or APIs of Numecent’s partners] and other software or services offered by Numecent in connection with any of those.

“Cloudpaging” shall mean the proprietary protocols and technologies which allow a cloudified application to be delivered to a client device on demand.

“Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer Data” means Stored Data and Account Data.

“Documentation” means Numecent’s online user guides, documentation, and help and training materials, as updated from time to time, accessible upon logging into the Cloudpager.

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.

“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with Cloudpager.

“Numecent” means Numecent Inc. or Numecent Limited and their subsidiaries or Affiliates involved in providing Cloudpager.

“Order Form” means the online or other ordering document under which You purchase a subscription to Cloudpager or any other services provided to You by Numecent or any of its Affiliates. By submitting an Order Form hereunder, Your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

“PC Software” means computer applications software designed to be run on certain Windows operating systems, including, without limitation, Windows7 32 bit and 64 bit, and Windows10 32 bit and 64 bit.

“Security Emergency” means: (i) use of the services that do or could disrupt the services, other customers’ use of the services, or the infrastructure used to provide the services and (ii) unauthorized third-party access to the services.

“Service Level Agreement (SLA)” means the Support of Numecent Cloud Services and Software Solution attached as Exhibit A to this Agreement.

“Stored Data” means the files and structured data submitted to the Services by You or End Users.

“User” or “End User” means an individual who is authorized by You to use Cloudpager, for whom You have ordered Cloudpager, and to whom You (or Numecent at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

“Your Data” means electronic data and information submitted by or for You for Cloudpager or collected and processed by or for You using Cloudpager, excluding Content and Applications.

2. Your Agreement with Numecent

If You have entered into or enter into a Software License Agreement with Numecent that Software License Agreement shall not apply to Cloudpager, and Cloudpager shall not be considered a service or product or part of any service or product under such Software License Agreement, unless otherwise expressly agreed to in writing by Numecent. Cloudpager is delivered from an infrastructure different from the infrastructure underlying other Numecent software, and any representations or commitments by Numecent regarding the security or availability of its services or products do not apply to Cloudpager or vice-versa.

You may not use Cloudpager if You are a person barred from receiving Cloudpager under the laws of the United States or other countries, including the country in which You are resident or from which You use Cloudpager. You affirm that You are over the age of 13, as Cloudpager are not intended for children under 13.

You agree that Your purchase of a subscription to Cloudpager is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Numecent or any of its Affiliates regarding future functionality or features.

To the extent that Numecent is, on behalf of the Customer, processing Customer Data that is subject to national laws implementing EU General Data Protection Regulation ((EU) 2016/979)) (“GDPR”), by accepting this contract, you are also agreeing to the Data Processing Agreement (“DPA”) with Numecent for the transfer of personal data to processors set forth in Schedule 1.

If you are agreeing to this Agreement and Schedule 1 (if applicable) for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not use the Services.

3. Your Account and Use of Cloudpager

You must provide accurate and complete registration information any time You register to use Cloudpager. You are responsible for the security of Your passwords and for any use of Your account. If You become aware of any unauthorized use of Your password or of Your account, You agree to notify Numecent immediately.

Your use of Cloudpager must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

You agree that neither You nor any Users to whom You serve web pages, including Applications via Cloudpager will (a) access (or attempt to access) the administrative interface of Cloudpager by any means other than through the interface that is provided by Numecent in connection with Cloudpager, unless You have been specifically allowed to do so in a separate written agreement with Numecent, or (b) engage in any activity that interferes with or disrupts Cloudpager (or the servers and networks which are connected to Cloudpager). You agree that You may not provide any third party with access to Your account except as expressly authorized by Numecent.

You may use Cloudpager only to cloudify and deploy Applications on the Numecent Cloudpaging platform. You may not access Cloudpager for the purpose of bringing an intellectual property infringement claim against Numecent or for the purpose of creating a product or service competitive with Cloudpager.

4. Free Preview

If You register on our website for a free preview, Numecent will make Cloudpager available to You on a trial basis free of charge until the earlier of (a) the end of the free preview period for which You registered to use Cloudpager or (b) the start date of any Cloudpager subscriptions ordered by You for such service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO CLOUDPAGER, DURING YOUR FREE PREVIEW WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION CLOUDPAGER, OR EXPORT SUCH BEFORE THE END OF THE PREVIEW PERIOD. THE FREE PREVIEW OF CLOUDPAGER PROVIDED BY NUMECENT IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

Please review the Documentation during the trial period so that You become familiar with the features and functions of Cloudpager before You make Your purchase. If You are located in the United States, then during any free trial period Numecent may disclose anonymous data about Your use of Cloudpager (“Usage Statistics”) to our service providers for the purpose of helping us improve Cloudpager. Any such disclosures of Usage Statistics to our service providers will not include Your identity.

5. Use of Services and Content

Unless otherwise provided in the applicable Order Form, (a) Cloudpager may only be purchased as a subscription, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

Your use of Cloudpager is subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to the number of published Applications and the Applications per User (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of Cloudpager. If You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of Cloudpager promptly upon our request, and/or pay any invoice for excess usage in accordance with Section 7.

You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Cloudpager, and notify Numecent promptly of any such unauthorized access or use, and (d) use Cloudpager only in accordance with the Documentation and applicable laws and government regulations. You agree to obtain from Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Numecent to provide the services described herein. You agree that, if a User (i) violates this Agreement or (ii) uses the services provided herein in a manner that Numecent reasonably believes will cause it liability, then Numecent may request that You suspend or terminate the applicable User account. If You fail to promptly suspend or terminate the User account, then Numecent may do so.

You will not (a) make Cloudpager or any Content available to, or use Cloudpager or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease Cloudpager or Content, (c) use Cloudpager to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use Cloudpager to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of Cloudpager or third-party data contained therein, (f) attempt to gain unauthorized access to Cloudpager or Content or its related systems or networks, (g) permit direct or indirect access to or use of Cloudpager or Content in a way that circumvents a contractual usage limit, (h) copy Cloudpager or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of Cloudpager or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) access Cloudpager or Content in order to build a competitive product or service, (l) reverse engineer Cloudpager, or (m) use Cloudpager for activities where use or failure of the services provided herein could lead to physical damage, death or personal injury.

You may specify Users as “Administrators” through the administrative interface of Cloudpager. Administrators may have the ability to access, disclose, restrict or remove data in or from User accounts on Your Application. Administrators may also have the ability to monitor, restrict or terminate access to User accounts. Numecent’s responsibilities do not extend to the internal management or administration of the services provided under this Agreement. You are responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the services complies with this Agreement.

If You use any third-party service (e.g. a service that uses a Numecent API) with the services provided herein, (a) Numecent will not be responsible for any act or omission of the third party, including the third party’s access to or use of Your Data and (b) Numecent does not warrant or support any service provided by the third party.

Notwithstanding anything in this Agreement, if there is a Security Emergency then Numecent may automatically suspend use of the services provided herein. Numecent will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

6. Service Policies and Privacy

You agree to comply with the Numecent Terms of Use policy available at Terms of Use (“Terms of Use”) which is incorporated herein by this reference and which may be updated from time to time.

Cloudpager and the Applications deployed through Cloudpager shall be subject to Numecent’s Privacy Policy available at Privacy Policy. You agree to the use of Your Data in accordance with Numecent’s privacy policies.

You agree that You will protect the privacy and legal rights of Users of Your Application. You must provide legally adequate privacy notices and protection for Users. If Users provide You with user names, passwords, or other login information or personal information, You must make the Users aware that the information will be available to Your Application and to Numecent.

You agree that Numecent may revise the services provided under this Agreement (including without limitation Cloudpager and Beta Services), as well as the SLA, at any time.

Numecent will use, at a minimum, industry-standard technical and organizational security measures to transfer, store and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against unauthorized or unlawful access to, use and processing of Customer Data. The Customer agrees that Numecent may transfer, store and process Customer Data in the United States and locations other than the Customer’s country. To the extent that Customer Data is subject to EU Data Protection Laws and is processed by Numecent as a data processor acting on the Customer’s behalf (as a data controller), Numecent will use and process such Customer Data as the Customer instructs in order to provide the Services and fulfill Numecent’s obligations under the Agreement.

Numecent may update the Services from time to time. If Numecent changes the Services in a manner that materially reduces their functionality, Numecent will inform Customer via the email address associated with the account.

7. Fees and Payment for Use of Cloudpager

Subject to the terms of this Agreement, Cloudpager may be provided to You without charge for a specified trial period. After the end of the trial period, You will be required to pay a fee for the continued use of Cloudpager. You can use the [tools] supplied to You by Numecent to cloudify Your Application for deployment on Cloudpager free of charge. If You choose to have Numecent cloudify Your Application, You agree to pay to Numecent the fees specified by Numecent on or before the deadline specified on each invoice provided by Numecent.

For all purchased Cloudpager services, we will charge You at the interval indicated in Numecent’s fees and payment policies, if different. You agree that You authorize all such charges. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys’ fees Numecent incurs collecting late amounts. To the fullest extent permitted by law, You waive all claims relating to charges unless claimed within sixty (60) days after the charge (this does not affect Your credit card issuer rights). Charges are solely based on Numecent’s measurements of Your use of Cloudpager, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Numecent and only in the form of credit for Cloudpager. Nothing in this Agreement obligates Numecent to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that You provide to Numecent may be shared by Numecent with companies who work on Numecent’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Numecent and servicing Your account. Numecent may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Numecent shall not be liable for any use or disclosure of such information by such third parties. Numecent reserves the right to discontinue the provision of Cloudpager to You for any late payments.

You may not access Cloudpager in a manner intended to avoid incurring fees. Numecent may change its fees and payment policies for Cloudpager by notifying You at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Numecent may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.

Fees are non-refundable except as required by law. You are responsible for providing complete and accurate billing and contact information to Numecent. Numecent may suspend or terminate the services provided under this Agreement is fees are overdue.

You shall reimburse Numecent for, or if You notify Numecent, You shall directly remit to tax authorities any sales tax, use tax, value added tax, or goods and services tax. If You are required by law to withhold any taxes, You must provide Numecent with an official tax receipt or other appropriate documentation.

8. Content on Cloudpager and Take Down Obligations

You understand that all information (such as data files, written text, computer software or other information) to which You may have access as part of, or through Your use of, Cloudpager are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the Applications.

Numecent reserves the right (but shall have no obligation) to remove any or all Content from Cloudpager. You agree to immediately take down any Content that violates the Terms of Use, including pursuant to a takedown request from Numecent. In the event that You elect not to comply with a request from Numecent to take down certain Content, Numecent reserves the right to directly take down such Content or to disable Applications.

In the event that You become aware of any violation of the Terms of Use by a User of Applications, You shall immediately terminate such User’s account on Your Application. Numecent reserves the right to disable Applications in response to a violation or suspected violation of the Terms of Use.

You agree that You are solely responsible for (and that Numecent has no responsibility to You or to any third party for) the Application or any Content that You create, transmit or display while using Cloudpager and for the consequences of Your actions (including any loss or damage which Numecent may suffer) by doing so.

You agree that Numecent has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of Cloudpager. You further acknowledge that You are solely responsible for securing and backing up Your Applications and any Content.

Cloudpager allows Customer to download Numecent’s Cloudpaging software, which may be updated automatically. Customer may use the software only to access the Services. If any component of the software is offered under an open source license, Numecent will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.

9. Proprietary Rights

You acknowledge and agree that Numecent (or a Numecent licensor) owns all legal right, title and interest in and to Cloudpager and Cloudpaging, including any intellectual property rights which subsist in Cloudpager and Cloudpaging (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

An Application that is uploaded to Cloudpager cloud service will be replicated globally. You are responsible for complying with all applicable data protection, import, re-import, export, and re-export control laws, including any applicable license requirements, and country-specific sanctions programs. You are responsible for serving as the exporter and importer of record (as applicable) for Your Application and Content, and You accept that Numecent will not participate in the export or import procedure.

Except as provided in Section 11, Numecent acknowledges and agrees that it obtains no right, title or interest from You (or Your licensors) under this Agreement in or to any Content or Applications that You create, submit, transmit or display on, or through, Cloudpager, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless You have agreed otherwise in writing with Numecent, You agree that You are responsible for protecting and enforcing those rights and that Numecent has no obligation to do so on Your behalf.

You agree to notify Your Users of the Numecent End User License Agreement and You agree to provide Your Applications with the End User License Agreement. You also agree that You will not vary the terms of the End User License Agreement without the prior written consent of Numecent. Numecent may update its form of End User License Agreement from time to time upon reasonable advance written notice to You. You agree to notify Numecent if You become aware of a violation of the End User License Agreement by any of Your Users.

10. License from Numecent and Restrictions

Numecent gives You a personal, worldwide, royalty-free, non-exclusive, non-assignable and non-transferable (except as provided herein), with no right to sublicense, license to use the software provided to You by Numecent as part of Cloudpager. This license is for the sole purpose of enabling You to use and enjoy the benefit of Cloudpager as provided by Numecent, in the manner permitted by this Agreement.

You may not (and You may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of Cloudpager or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told that You may do so by Numecent, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by Cloudpager or any Applications running on Cloudpager.

Open source software licenses for components of Cloudpager released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede the Agreement, the open source licenses govern Your agreement with Numecent for the use of the components of Cloudpager released under an open source license.

Numecent hereby grants You a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Numecent trademarks and/or logos as provided here (the “Marks”) for the sole purpose of promoting or advertising that You use Cloudpager and solely in accordance with Numecent’s then-current Trademark Usage Guidelines, which may be found at Numecent Trademark Usage Guidelines. You agree that all goodwill generated through Your use of the Numecent Marks shall inure to the benefit of Numecent.

If Numecent believes the services provided herein infringe or may be alleged to infringe a third party’s intellectual property rights, Numecent may, at Numecent’s sole cost: (i) obtain the right for You, at Numecent’s expense, to continue using the services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the services so that they no longer infringe. If Numecent does not believe the options described in this section are commercially reasonable, Numecent may suspend or terminate Your use of the affected services (with a pro-rata refund of pre-paid fees for the services).

11. License from You

By adding a collaborator to Your Application, You hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Cloudpager functionality or features for the sole purpose of collaborating on the development of the Application(s).

You may choose to or we may invite You to submit comments or ideas about Cloudpager, including without limitation about how to improve Cloudpager or our products (the “Ideas”). By submitting any Idea, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place Numecent under any fiduciary or other obligation and that we are free to use the Idea without any additional compensation to You, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.

You agree that Numecent, in its sole discretion, may use Your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to Your website) for the purpose of advertising or publicizing Your use of Cloudpager.

12. NON-NUMECENT PROVIDERS

We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, and implementation and other consulting services. Any acquisition by You of such non-Numecent products or services, and any exchange of data between You and any non-Numecent provider, is solely between You and the applicable non-Numecent provider. We do not warrant or support non-Numecent Applications or other non-Numecent products or services, whether or not they are designated by Numecent as “certified” or otherwise, except as specified in an Order Form.

If You install or enable a non-Numecent Application for use with Cloudpager, You grant Numecent permission to allow the provider of that non-Numecent Application to access Your Data as required for the interoperation of that non-Numecent Application with Cloudpager. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access to a non-Numecent Application.

Cloudpager may contain features designed to interoperate with non-Numecent Applications. To use such features, you may be required to obtain access to non-Numecent Applications from their providers and may be required to grant Us access to Your account(s) on the non-Numecent Applications. If the provider of a non-Numecent Application ceases to make the non-Numecent Application available for interoperation with the corresponding Cloudpager features on reasonable terms, we may cease providing those Cloudpager features without entitling You to any refund, credit, or other compensation.

13. Recommendations

Numecent may, and You grant us permission to, make recommendations via Cloudpager for products or services we think may be of interest to You based on Your Application(s), Content, and/or use of Cloudpager. We will never make recommendations directly to Your Users.

14. Modification and Termination of Cloudpager

You acknowledge and agree that the form and nature of Cloudpager which Numecent provides may change from time to time without prior notice to You, subject to the terms in Section 7. Changes to the form and nature of Cloudpager will be effective with respect to all versions of Cloudpager; examples of changes to the form and nature of Cloudpager include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.

You may terminate this Agreement at any time by canceling Your account on Cloudpager. You will not receive any refunds if You cancel Your account. If you do not notify Numecent that you intend to terminate this Agreement, your subscription to Cloudpager will automatically renew.

You agree that Numecent, in its sole discretion and for any or no reason, may terminate Your account or any part thereof. You agree that any termination of Your access to Cloudpager may be without prior notice, and You agree that Numecent will not be liable to You or any third party for such termination.

You are solely responsible for exporting Your Content and Application(s) from Cloudpager prior to termination of Your account for any reason, provided that if we terminate Your account, we will provide You a reasonable opportunity to retrieve Your Content and Application(s).

Upon any termination of Cloudpager or Your account, this Agreement will also terminate, but Sections 7, 9, 11, 14, 15, 16, 17, 19, 20 and 21 shall survive and continue to be effective after this Agreement is terminated.

15. EXCLUSION OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF CLOUDPAGER IS AT YOUR SOLE RISK AND THAT CLOUDPAGER IS PROVIDED “AS IS” AND “AS AVAILABLE.”

NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING CLOUDPAGER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF CLOUDPAGER WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF CLOUDPAGER WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH CLOUDPAGER WILL BE ACCURATE.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NUMECENT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NUMECENT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS” EXCLUSIVE OF ANY WARRANTY WHATSOEVER, AND NUMECENT WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES. NUMECENT DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

16. LIMITATION OF LIABILITY

NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 7.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

THE LIMITATIONS ON NUMECENT’S LIABILITY TO YOU IN PARAGRAPH 16.1 ABOVE SHALL APPLY WHETHER OR NOT NUMECENT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

17. Indemnification

You agree to hold harmless and indemnify Numecent, and its subsidiaries, Affiliates, officers, agents, employees, advertisers, licensors, suppliers, or partners (collectively “Numecent and Partners”) from and against any third party claim arising from or in any way related to (a) Your breach of the Terms, (b) Your use of Cloudpager, (c) Your violation of applicable laws, rules or regulations in connection with Cloudpager, or (d) Your Content or Your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Numecent will provide You with written notice of such claim, suit or action.

You specifically acknowledge that Numecent is not indemnifying You, Your officers, agents, employees, advertisers, licensors, suppliers, or partners from and against any third party claim arising from or in any way related to a) Your breach of this Agreement, (b) Your use of Cloudpager, (c) Your violation of applicable laws, rules or regulations in connection with Cloudpager, or (d) Your Content or Your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.

18. Copyright Policy

You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is Numecent’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in Your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.

19. Other Content

Cloudpager may include hyperlinks to other websites or content or resources or email content. Numecent may have no control over any websites or resources which are provided by companies or persons other than Numecent.

You acknowledge and agree that Numecent is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.

You acknowledge and agree that Numecent is not liable for any loss or damage which may be incurred by You or Your Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by You on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

20. Who You Are Contracting With, Notices, Governing Law and Jurisdiction

Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on where You are domiciled.

You are contracting with:	Notices should be addressed to:	The governing law is:	The courts having exclusive jurisdiction are:
Numecent Inc., a Delaware corporation	Attention: Finance 18565 Jamboree Rd, Ste 540, Irvine, CA 92612	California and controlling United States federal law	Irvine, California, U.S.A.

If any dispute arises out of this Agreement and the dispute cannot be resolved by direct negotiations, either party must initiate mediation by giving notice to the other.

Agreement to Arbitrate. If the parties fail to resolve the dispute within 30 days from notice of mediation, either party may initiate binding arbitration, except as set forth below. The place of mediation and arbitration will be Irvine, California. One arbitrator will conduct the proceedings in accordance with the Judicial Arbitration and Mediations Services, Inc. (“JAMS”) Rules. To the extent of any conflicts between the JAMS Rules and the provisions of this Agreement, the provisions of this Agreement prevail. The arbitration award is final and binding and must be issued within 3 months from completion of the hearing, or as soon as possible thereafter.

Either party may bring a lawsuit in the federal or state courts of Orange County, California solely for injunctive relief to stop unauthorized use or abuse of the services or infringement of intellectual property rights without first engaging in the informal dispute notice process described above. Both You and Numecent consent to venue and personal jurisdiction there.

You may only resolve disputes with Numecent on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.

21. General Provisions

Cloudpager, Content, other technology that Numecent makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Cloudpager or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Numecent’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Numecent’s Legal Department at legal@numecent.com.

This Agreement is the entire agreement between You and Numecent regarding Your use of Cloudpager and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order Form, and (3) the Documentation.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

Any Content licensor of Numecent shall have the benefit of Numecent’s rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

You will pay on demand all of Numecent’s reasonable attorney fees and other costs incurred by Numecent to collect any fees or charges due Numecent under this Agreement following Your breach of Section 7.2 of this Agreement.

Except for payment obligations, neither You nor Numecent will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, pandemic, act of war or terrorism, riot, labor condition, governmental action and internet disturbance).

Exhibit A – Support of Numecent Cloud Services and Software Solution

1. Support and Maintenance Levels

Numecent shall provide Third Level Support Services to the Customer and the Customer shall provide First and Second Level Support Services to its prospective end-users. Support and Maintenance applies to both the Numecent Cloud Services & Software Solution. This Service Level Agreement applies to customers that accept the Numecent Terms of Service (https://numecentcloud.com/service/tos.do) and End User License Agreement (https://www.numecent.com/eula).

First & Second Level Support Services

The Customer will supply First and Second Level Support. First Level Support means the initial response (and any follow-up response, as appropriate) to a user-initiated support request by the Customer’s support staff. First Level Support shall include call logging, initial information gathering and verification of entitlement to support, answering product installation, configuration and usage questions as well as problem isolation, identification, replication and troubleshooting. The latest patch for supported versions listed on the Numecent support site must be applied in order to be eligible for support assistance.

Second Level Support includes problem isolation, identification and replication and the determination by the Customer’s technical staff in reviewing all reported issues to determine if the problem occurs in the Cloud Services & Software Solution or in the Customer’s software.  If the Customer determines that the problem occurs in the Cloud Services & Software Solution, the Customer will first attempt using known methods to resolve the problem. The Customer may then report the issue to Numecent Support staff via the support web portal or via e-mail. If Numecent Support is unable to replicate the issue, the Customer shall provide such additional information reasonably required (which may include a sample program enabling replication of the issue). The Customer shall also make its personnel available to Numecent Support to assist in problem identification and resolution of all reported issues.

Customer shall collect log files, screenshots, error codes, and other supporting materials as deemed relevant to the issue and submit the supporting materials to Numecent within a reasonable amount of time. 

Third Level Support Services

Numecent will supply Third Level Support for the Cloud Services & Software Solution to the Customer. The Customer will designate a maximum of three (3) contacts within the organization to establish continuity of support with Numecent.

Numecent will use its commercially reasonable best efforts to resolve any problems within the target times specified in under the Service Level Agreement (SLA) as listed below. Service Level Agreements are specific and separate for the Numecent Cloud Services and the Software Solution as outlined below.

Problem Determination

Numecent will provide access to product guides, FAQs, and the knowledgebase system to the Customer’s support staff. This knowledgebase system will assist the Customer in determining if the issue is with the Licensed Software. The guides and knowledgebase will include all updates and procedures for both the Cloud Services and Software Solution, such as security updates for the Software Solution.

In order to ensure that problems with the Cloud Services or Software Solution may be correctly diagnosed, Customer will provide reasonable access (including access on a remote basis) to Customer’s personnel, premises, user equipment, and user data as and when requested by Numecent in the context of a problem investigation, without charge to Numecent. Failure to provide such access may prohibit effective action by Numecent and render Numecent unable to proceed.

2. Cloud Services – Service Level Agreement

Numecent Cloud Services are designed using industry best practices to achieve a high degree of service availability. The system is fully managed, highly available, and is monitored 24×7. In addition, all scheduled and emergency maintenance on the Cloud Services, which may affect customers, will be notified ahead of time. Numecent will use commercially reasonable efforts to ensure the Numecent Cloud Services are available with a Monthly Uptime.

Monthly Uptime Commitment: 99.95%

“Monthly Uptime” is calculated by subtracting from 100% the percentage of minutes during the full month in which any of the Services, as applicable, was in the state of “Unavailable”. Monthly Uptime measurements exclude downtime resulting from:

• Scheduled maintenance windows.
• Customer’s failure to follow configuration requirements for the Cloud Services as documented (https://support.numecent.com/en/support/solutions/articles/1000284991)
• Customer’s employees, agents, contractors, or vendors, or anyone gaining access by means of Customer’s passwords or equipment, or otherwise resulting from Customer’s failure to follow appropriate security practices.
• Caused by any component not managed by Numecent, such as Customer’s Internet Service Provider failures.
• Service disruption due to Force Majeure, including, but not limited to, natural disasters, war or acts of terrorism, or government actions.

No Service Commitment is offered for any Numecent tech preview or Beta programs.

Incident Reporting and Responsiveness

Disruption in service can be reported to an automated escalation system by:

• emailing criticalsupport@numecent.com; or
• calling 949-833-2800 x888

and leaving a brief description, region affect, and a call back number. This service is available 24 hours, 7 days a week for urgent or high impacting issues affecting the availability of Cloud Services. Numecent Support will contact back to communicate status on a resolution.

Cloud Services Target Response Times
Urgent	1 hour
High	4 hours
Medium / Low	Next business day

Each incident is given a severity level in accordance with the SLA. The Customer can set the severity initially, but it may be changed by the Support staff based on the criteria below. If an acceptable explanation or work-around is given, then the severity may be lowered.

• URGENT – A critical business impact, such as severe loss or an outage of the services, that demands an immediate response. This level as this is reserved for end-user facing issues and does not include administrative functionality.
• HIGH – A moderate impact to the business, such as a temporary loss or degradation of service, that required an expediated response.
• MEDIUM/LOW – The issue has minimum impact to the business and only needs a response during normal business hours.

Customer reported incidents, severity levels, and status can be seen on the Numecent support portal at https://support.numecent.com. All service interruptions reports, status, and root cause analysis for Urgent level issues can also be viewed in the support portal or by following the Numecent support Twitter account @numecent_tech.

Scheduled Maintenance

Scheduled Maintenance of the Cloud Services may occur monthly, after Numecent business hours from 6 pm to 12 am Pacific Time, and can temporarily withdraw the availability of the Cloud Services. Such Scheduled Maintenance will be posted to the Cloud Services administration site and emailed to the Main Technical Contact no less than ten (10) Business Days with a notice of the intended maintenance time and period.

Emergency Maintenance will be performed outside the Normal Business Hours with advanced notice of no less than one (1) Business Day. Service interruptions due to Emergency Maintenance are not included in the Service Uptime Target.

Regular updates to the Cloud Services can occur weekly during Numecent normal business hours, but do not affect the uptime commitment and are included in the Service Uptime Commitment. Any disruption in the Cloud Services will be notified immediately along with restoration times.

Incident Escalation Procedures

Incidents are organized into three tiers (1, 2, and 3) defined by the age of the ticket and/or the severity of the problem reported. Tier-3 calls are escalated directly to a Support Manager to dispatch directly to knowledge experts. Appropriate support or on-call personnel handle all other tier issues. Tickets will be automatically escalated to the next tier if SLA response times are at risk or if the assigned agent has not begun remediation within 15 mins of the reported incident. If the SLA response time is not met, the Customer can escalate to tier-3 by calling 949-833-2800 x3 to reach a specialist.

Service Credits

If Numecent confirms that there is a failure to meet the Monthly Uptime Commitment in a particular calendar month, then the Customer may make a request for service credit within thirty (30) days after the end of such calendar month.

Monthly Uptime Percentage: < 99.95%

Service Credit: 10% off for applicable month(s)

The Customer will be entitled to a credit based on (a) the monthly fees invoiced for the Cloud Services in the month experiencing such failure, with a monthly subscription plan or (b) 1/12 of annual fees invoiced for the Cloud Services, with an annual plan. Service Credits are non-transferable and will be applied to Customer’s next monthly subscription or annual Service extension in the immediate renewal period.

Customer that purchases the Cloud Services through a reseller will receive a credit through the reseller. Numecent does not control resale pricing or resale credits. Credits do not include a right of offset on payments due to Numecent or a reseller.

3. Software Solution – Service Level Agreement

Each Service Level involves contacting the Numecent Support staff to help resolve specific symptoms encountered while using the Software Solution, where there is a reasonable expectation that the problems are caused by the Software Solution. Support incidents provide reactive support that focuses on a specific problem, error message, or functionality that is not working as intended. An incident is defined as a single support issue and the reasonable effort needed to resolve it. A single support issue is a problem that cannot be broken down into subordinate issues. If a problem consists of subordinate issues, each shall be considered a separate incident.

Software Solution Target Response Times
Urgent	4 hours
High	3 days
Medium	5 days
Low	10 days
Software Solution Target Resolution Times
Urgent	5 days
High	45 days
Medium	Patch update
Low	New release

Helpdesk support will be provided by Numecent between the hours of 8:00 AM and 6:00 PM Pacific Time from Monday through Friday, excluding Holidays listed below. Problems should be submitted online at https://support.numecent.com or sent to support@numecent.com and all communication must be in English only. The Numecent Support staff can also be reached at 949-833-2800 x3 for Urgent issues. Self-service help is also available 24/7 by accessing the knowledge base online.

Incident Severity Levels

Each incident is given a severity level in accordance with the SLA. The Customer can set the severity initially, but it may be changed by the Support staff based on the criteria below. If an acceptable explanation or work-around is given, then the severity may be lowered.

• URGENT – An Urgent priority issue is a reproducible emergency condition which renders the software or residing system inoperable.  The condition, such as data loss or corruption, requires an immediate solution that is not already available.
• HIGH – A High priority issue is a reproducible condition which makes the use or continued use of any function difficult and/or causes serious limitations to the use of the software.
• MEDIUM – A Medium priority issue is a reproducible limited problem condition which is not critical in that no loss of data occurs and which can circumvent or avoided on a temporary basis.
• LOW – A Low priority issue is a minor problem condition or documentation error which can be easily circumvented or avoided.

NOTE: Feature requests are not considered severity incidents and instead are reviewed by product management as future change requests for new releases.

4. Holidays

Numecent Hours of operation are 8:00 AM to 6:00 PM Pacific Time (PT), Monday through Friday with the exclusion of the following holidays or observed holidays should the holiday fall on a weekend:

• New Year’s Day
• President’s Day
• Good Friday
• Memorial Day
• Independence Day
• Labor Day
• Thanksgiving Day
• Thanksgiving Friday
• Christmas Eve
• Christmas Day
• New Year’s Eve

5. Product Version Availability

Subject to payment of the Annual Support and Maintenance Fee, Customers shall be entitled to receive Patch Updates and New Releases when available by Numecent and shall be responsible for distributing such Patch Updates and New Releases to its Customers.

• NEW RELEASES – New releases are major versions containing product bug fixes and feature changes. New release can occur within 12 to 18 months (approximately) after the last new release.
• PATCH UPDATES – Patch updates are versions containing only bug fixes to address critical product defects. Patch updates can occur within 4 to 8 weeks (approximately) after the last patch release.

6. Release Notifications

Customers will be notified by email when a new release or patch update is available for download. Release notes will be supplied, which will highlight the changes in the new release or patch update. Release notifications can also be viewed by following the Numecent support Twitter account @numecent_tech.

7. Version End-of-Life Policy

Numecent Support maintains a listing of Software Solutions to the support site. This list will include both current and obsolete Software Solution versions that are no longer supported and/or compatible, including end-of-life dates. Numecent reserves the right to discontinue Support and Maintenance for any Software Solution version for which Numecent discontinues commercial distribution. Numecent shall give the Customer a 180-day notice of its intent to discontinue supplying Support and Maintenance for such Software Solution. During this pending end-of-life timeframe, Numecent will continue to supply Support and Maintenance along with Cloud Services compatibility, but limited to bug fixes only.

8. Customer Support Contact Information

Please fill out the following information and email it to: support@numecent.com. This form can be resubmitted at any time with updates and changes.

The Main Technical Contact will be the person to receive all communication from Numecent Support. Both the Main Technical Contact and the Alternate Technical Contacts may call the Numecent Support staff for urgent assistance.

Main Technical Contact

Name:

Title:

Phone:

E-mail:

Alternate Contact #1

Name:

Title:

Phone:

E-mail:

Alternate Contact #2

Name:

Title:

Phone:

E-mail:

Customer Support

Website:

E-mail:

Schedule 1 – Data Processing Agreement

Numecent and Customer entered into a Numecent CCDN Agreement (Agreement) that may require Numecent to process Personal Data on behalf of Customer.

This Data Processing Agreement (DPA) sets out the additional terms, requirements and conditions on which Numecent will process Personal Data when providing services under the Agreement. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.

By agreeing to the Agreement, Customer enters into this DPA on its own behalf and on behalf of its Affiliates, if and to the extent Numecent Processes Personal Data for which such Affiliates qualify as Controller.

In consideration of the Parties’ mutual rights and obligations set out in the Agreement and this DPA, the Parties agree as follows:

1. DEFINITIONS

“Affiliate” shall mean, as to any entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity.

“GDPR” means the EU General Data Protection 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.

 “Controller” shall mean 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 Information.

‘Customer Personal Data” shall mean the Personal Data which Numecent is Processing as Processor on behalf of Customer in order to provide the Services.

 “Data Protection Laws” shall mean all data protection and privacy laws applicable to the respective party in its role in the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

“EU Data Protection Law” shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”), (ii) on or after 25 may 2018, the GDPR, and any equivalent or replacement law in any Member State and all and any regulations made under those acts or regulations; (iii) the guidelines, recommendations, best practice opinions, directions, decisions, and codes of conduct issued, adopted or approved by the European Commission, the European Data Protection Board, and/or any supervisory authority or data protection authority from time to time in relation to the Directive or the GDPR; and (iii) any judgments of any relevant court of law relating to the processing of personal data, data privacy, and data security..

“EU Standard Contractual Clauses” shall mean the Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries set forth in the Commission Decision 2010/87/EC of 5 February 2010, as well as under any new laws, rules, regulations, and/or contracts that that replace, supersede, or are required to be implemented in connection with the Standard Contractual Clauses.

“Member State” shall mean a country that is a member of the European Union or of the European Economic Area.

“Numecent Security Standards” means the security standards attached to the Agreement, of in none are attached to the Agreement, attached to this DPA as Annex 1.

 “Personal Data” shall mean any information relating to an identified or identifiable natural person (“Data Subject”), which information is subject to Data Protection Legislation; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier such as an IP or MAC Address or Mobile ID, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Personal Data Breach” shall mean a suspected or actual breach of the Numecent Security Standards leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

“Privacy Shield” shall mean the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).

“Process” or “Processing” shall mean the collection, recording, organization, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, destruction, disposal or other use of Personal Data by the Processor on behalf of the Controller.

“Processor” shall mean a natural or legal person, public authority, agency or other body which processes Personal Information on behalf of the Controller.

 “Services” shall mean the services provided by Numecent as described in the Agreement.

“Sub-processor” means any subcontractor engaged by Numecent for the Processing of Customer Personal Data in accordance with Section 8.1.

“Supervisory Authority” shall mean an independent public authority which is established by a Member State pursuant to Data Protection Legislation.

 “Transfer” shall mean the access by, transfer or delivery to, or disclosure of Personal Data to a person, entity or system located in a country or jurisdiction other than the country or jurisdiction where the Personal Data originated from.

2. DATA PROCESSING

This DPA applies if and to the extent Numecent is Processing Customer Personal Data. In this context, Numecent will act as a “Processor” to Customer, who may act as “Controller” or “Processor” with respect to Customer Personal Data.

Annex 2 (Processing Details) sets out:

               (a)          the nature, purposes, and subject matter of the Processing;

               (b)          the duration of the Processing;

               (c)           the categories of Data Subjects; and

               (d)          the types of Customer Personal Data.

Numecent will Process the Customer Personal Data for the sole purpose of providing the Services according to Customer’s written instructions. The Parties agree that the Agreement and this DPA constitute Customer’s complete and final documented instructions to Numecent in relation to the Processing of the Customer Personal Data. Additional instructions outside the scope of the Agreement or this DPA (if any) require prior written agreement between Numecent and Customer, including agreement on any additional fees payable by Customer for carrying out such instructions. Customer shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Customer Personal Data, and that the Processing of the Customer Personal Data in accordance with Customer’s instructions will not cause Numecent to be in breach of the GDPR.

Numecent will not access or use the Customer Personal Data, except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.

Customer agrees that (i) it will comply with its obligations under Data Protection Laws in respect of its Processing of the Customer Personal Data, including any obligations specific to its role as a Controller and/or Processor (as applicable); and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Data Protection Laws for Numecent to Process the Customer Personal Data and provide the Services pursuant to the Agreement and this DPA. If Customer is itself a Processor, Customer warrants to Numecent that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Numecent as another Processor, have been authorized by the relevant Controller.

3. TECHNICAL AND ORGANIZATIONAL MEASURES

Numecent will implement and maintain technical and organizational measures to ensure a level of security appropriate to the risk as set out in Annex 1.

Customer is responsible for reviewing the information made available by Numecent relating to data security and making an independent determination as to whether the technical and organizational measures implemented by Numecent meet Customer’s requirements and legal obligations under GDPR. Customer acknowledges that the Numecent Security Standards are subject to technical progress and further development and that Numecent may update or modify the Numecent Security Standards from time to time provided that such updates and modifications do not result in a material degradation of the overall security of the Services provided to Customer under the Agreement.

Customer agrees that without prejudice to Numecent’s obligations under Section 3: (a) Customer is responsible for its use of the Services, including making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data, securing its account authentication credentials, managing its data back-up strategies, and protecting the security of the Customer Personal Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Personal Data uploaded to the Services; and (b) Numecent has no obligation to protect the Customer Personal Data that Customer elects to store or transfer outside of Numecent’s and its Sub-processors’ systems (for example, offline or on premise storage).

4. DATA SUBJECT RIGHTS AND REQUESTS

Numecent shall rectify, erase, allow the portability of or otherwise Process the Customer Personal Data and take any other measures in relation to requests from Data Subjects in relation to their rights under applicable EU Data Protection Law only in accordance with and subject to Customer’s written instructions.

To the extent permitted by applicable Data Protection Legislation, Numecent will inform Customer without undue delay of requests from Data Subjects exercising their rights thereunder that are addressed directly to Numecent regarding the Customer Personal Data. If Customer is obliged to provide information regarding the Customer Personal Data to third parties (e.g., Data Subjects or any Supervisory Authority), Numecent shall use best efforts to assist Customer in doing so by providing all required information.

Customer agrees that, without prejudice to Numecent’s obligations above, Customer is solely responsible for dealing with Data Subject requests.

If a law enforcement agency sends Numecent a demand for the Customer Personal Data (e.g., a subpoena or court order), Numecent will redirect the law enforcement agency to request that data directly from Customer.  As part of this effort, Numecent may provide Customer’s contact information to the law enforcement agency.  If compelled to disclose the Customer Personal Data to a law enforcement agency, then Numecent will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy to the extent Numecent is legally permitted to do so.

Customer acknowledges thatNumecent is required under the GDPR to: (a) collect and maintain written records of certain information, including the name and contact details of each Processor and/or Controller on behalf of which Numecent is acting and, where applicable, of such Processor’s or Controller’s local representative and data protection officer, and (b) make such information available to the Supervisory Authorities. Accordingly, if GDPR applies to the Processing of the Customer Personal Data, Customer will, where requested, provide such information to Numecent via the Services or other means provided by Numecent, and will ensure that all information provided is kept accurate and up-to-date.

5. CONFIDENTIALITY

Without prejudice to any existing contractual arrangements between the Parties, Numecent shall treat all Customer Personal Data as strictly confidential and is shall inform all its employees, agents and/or approved Sub-processors engaged in Processing the Customer Personal Data of the confidential nature of the data. Numecent shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.

Numecent will not disclose the Customer Personal Data to any third party, unless authorized by Customer or required by mandatory law. If a government or Supervisory Authority demands access to the Customer Personal Data, Numecent will notify Customer prior to disclosure unless prohibited by law.

6. INFORMATION AND AUDIT

Customer acknowledges that Numecent is regularly audited by independent third-party auditors and/or internal auditors against the standards specified in the Numecent Security Standards. Upon request, Numecent shall supply (on a confidential basis) a summary copy of its audit report(s) to Customer, so that Customer can verify Numecent’s compliance with the audit standards against which it has been assessed, and this DPA. If the Agreement does not include a provision protecting Numecent’s confidential information, then any audit report(s) will be made available to Customer subject to a mutually agreed upon non-disclosure agreement covering those reports.

Numecent shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Customer related to its Processing of the Customer Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Numecent’s compliance with this DPA, provided that Customer shall not exercise this right more than once per year.

Customer agrees to exercise any right it may have to conduct an audit or inspection of Numecent’s technical and organization measures, including under the EU Standard Contractual Clauses if they apply, by instructing Numecent to carry out such audit. 

7. RETURNING OR DELETING THE CUSTOMER PERSONAL DATA

Upon termination or expiration of the Agreement, or anytime upon Customer’s written request, Numecent shall promptly return or delete all copies of the Customer Personal Data. Numecent shall not be required to return or delete the Customer Personal Data to the extent (i) Numecent is required by applicable law or order of a governmental or regulatory body to retain all or some of the Customer Personal Data, or (ii) Customer has not paid all amounts due under the Agreement.

8. SUB-PROCESSORS

Customer agrees that Numecent may engage Sub-processors to Process the Customer Personal Data on Customer’s behalf. Customer hereby consents to Numecent continuing to use any of Numecent’s Affiliates and all Sub-processors already engaged by Numecent as at the date of this DPA (a full list is available on request by contacting Numecent’s data privacy manager at privacy@numecent.com). Customer shall promptly take any reasonable action required or appropriate to facilitate or support any transfer of the Customer Personal Data to approved Sub-processors (e.g., updating registrations with Supervisory Authorities).

Numecent shall notify Customer of any new Sub-processor Numecent wishes to appoint to carry out Processing activities on behalf of Customer. If, within two (2) weeks of receipt of any such notice, Customer notifies Numecent in writing of any objections to the proposed appointment for legitimate reasons, Numecent shall work with Customer in good faith to take reasonable measures to address the objections raised by Customer, and where such measures cannot be agreed within three (3) weeks from Numecent’s receipt of Customer’s notice, Customer may by written notice to Numecent with immediate effect terminate the Agreement to the extent that it relates to the Services which require the use of the proposed Sub-processor. “Legitimate reasons” shall be deemed given if there is an indication based on objective facts which reasonably support the assumption that the engagement of the Sub-processor would breach applicable law or this DPA.

Where Numecent engages a Sub-processor to carry out specific Processing activities on behalf of Customer, Numecent shall enter into a written agreement with the Sub-processor which includes terms that offer the same level of protection for the Customer Personal Data as those set out in this DPA.

Notwithstanding any approval by Customer within the meaning of Section 8.1, Numecent shall remain fully liable vis-à-vis Customer for the performance of any such Sub-processor that fails to fulfil its data protection obligations under this DPA and/or any applicable Data Protection Laws.

9. TRANSFERS of PERSONAL INFORMATION

To the extent that Numecent Processes any Customer Personal Data in a country that is neither a Member State nor considered by the European Commission to have adequate level of protection for personal information, Numecent will (i) enter into EU Standard Contractual Clauses with Customer, unless Numecent can demonstrate adherence to one of the other statutory Transfer mechanisms approved by the European Commission, such as the Privacy Shield.

To the extent that Customer or Numecent are relying on a specific statutory mechanism to normalize international Personal Data Transfers that is subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, Customer and Numecent agree to cooperate in good faith to promptly terminate the Transfer or to pursue a suitable alternative mechanism that can lawfully support the transfer.

For the purposes of Section 9, Numecent and Customer agree that incorporation of the EU Standard Contractual Clauses or Privacy Shield into this DPA shall act as a legally-binding execution. 

10. INFORMATION OBLIGATIONS AND PERSONAL DATA BREACH

If Numecent becomes aware of a Personal Data Breach that impacts the Processing of the Customer Personal Data that is the subject of the Agreement and is reasonably likely to require a data breach notification by Customer under the GDPR, Numecent will without undue delay: (a) notify Customer of the Personal Data Breach; and (b) take reasonable steps to minimize any damage resulting from the Personal Data Breach.

To assist Customer in relation to any Personal Data Breach notifications Customer is required to make under the GDPR, Numecent will include in the notification under Section 10 (a) such information about the Personal Data Breach as Numecent is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Numecent, and any restrictions on disclosing the information, such as confidentiality.

Customer agrees that:

1. An unsuccessful Personal Data Breach will not be subject to this Section 10. An unsuccessful Personal Data Breach is one that results in no unauthorized access to the Customer Personal Data or to any of Numecent’s equipment or facilities storing the Customer Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
2. Numecent’s obligation to report or respond to a Personal Data Breach under this Section 10 is not and will not be construed as an acknowledgment by Numecent of any fault or liability of Numecent with respect to the Personal Data Breach.

Notification of Personal Data Breaches, if any, will be delivered to one or more of Customer’s administrators by any means Numecent selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on Numecent’s systems, and secure transmission at all times.

Customer acknowledges that Numecent will not assess the contents of the Customer Personal Data in order to identify information subject to any specific legal requirements. Customer is solely responsible for complying with the data breach notification obligations applicable to Customer under the GDPR and fulfilling any third-party notification obligations related to any Personal Data Breach.

11. LIABILITY

The liability of each Party under this Addendum shall be subject to the exclusions and limitations of liability set out in the Agreement. Customer agrees that any regulatory penalties incurred by Numecent in relation to the Customer Personal Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this Addendum and the GDPR shall count towards and reduce Numecent’s liability under the Agreement as if it were a liability to Customer under the Agreement.

12. GENERAL

If any provision of this DPA is ineffective or void, this shall not affect the remaining provisions. The parties shall replace the ineffective or void provision with a lawful provision that reflects the business purpose of the ineffective or void provision. In case a necessary provision is missing, the parties shall add an appropriate one in good faith.

In the event of any inconsistency between the provisions of this DPA and the provisions of the Agreement, the provisions of this Agreement shall prevail.

This DPA will be governed and construed in accordance with the governing law and applicable jurisdiction provisions of the Agreement, unless required by applicable Data Protection Law.

Except as otherwise detailed herein, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.

Last modified July 7, 2022