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ZINFI License Terms and Conditions

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    1. Provision of Services
    2. 1.1

      By signing the Order Form (“Order Form”), Client engages ZINFI to provide to Client the services as set out in the Order Form (“Services”), during the Term set forth in the Order Form, subject to the terms set out in the Order Form and these terms and conditions, including the terms and conditions included in Exhibits A-F (collectively, the “Agreement”).

      1.2

      Where ZINFI provides to Client any services in addition to the Services (if instructed, directed or requested by Client and agreed to by ZINFI in writing), ZINFI shall charge for the same, and Client agree to make payment, at the ZINFI’s prevailing rates which shall be informed to Client in advance.

      1.3

      Client hereby grants consent and authorizes ZINFI and its related corporations to collect, use and disclose any information in relation to Client (and all other information which ZINFI may obtain as a result of the provision of the Services) for the purposes of providing the Services to Client.

       

    3. Payment
    4. 2.1

      In consideration of ZINFI agreeing to provide the Services, Client shall pay the amounts as set out in the Order Form in the manner and within the period prescribed for by the Order Form.

      2.2

      Client agrees to pay all amounts required by the Order Form free and clear of, and without any deduction in respect of any demand, set-off, counterclaim or other dispute or in respect of any withholding or other taxes or duties of any nature. If such deduction or withholding is required by law, Client shall nevertheless ensure that the amount paid and remitted to ZINFI is the amount ZINFI would have received in the absence of any such deduction or withholding.

      2.3

      In the event payment is not made in accordance with the Order Form, without prejudice to any other rights or remedies available to ZINFI under this Agreement or at law, in equity or otherwise, ZINFI may at its sole discretion charge Client, and Client shall pay to ZINFI, a late fee at the rate of 2% per month on any outstanding amounts payable by Client to ZINFI, until payment of the same is received by ZINFI in full.

      2.4

      All payments made to ZINFI by Client shall either be by ACH or telegraphic transfer to such bank account as ZINFI may designate from time to time for such purpose, or by such other means as ZINFI may hereafter prescribe.

      2.5

      If the details of Service are deemed in ZINFI’s sole discretion to have been changed over the course of the project, ZINFI reserves the right to re-scope and re-price the service and Client shall pay to ZINFI any additional fees that may be payable in respect of re-scoped and re-priced service.

       

    5. Intellectual Property Rights and Confidentiality
    6. 3.1

      Unless expressly stated otherwise in the Order Form, all rights, title and/or interest (including but not limited to intellectual property rights) in and to all trademarks, logos, data, information (confidential or otherwise), technology, platforms (including but not limited to ZINFI’s Automated Marketing Platform), deliverables, methodologies, processes, concepts, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing (collectively, “Material”), resulting from or used in providing the Services shall be retained by ZINFI. If Client come to possess any of the foregoing, Client undertake that Client shall not at any time use, disclose, publish, disseminate, modify, transfer, transmit, or reproduce (collectively, “Use”), and shall take reasonable precautions to prevent any unauthorized Use of, the same.

      3.2

      Nothing in this Agreement shall, or shall be considered to, grant Client any right to use the ZINFI name, or any trademarks, trade names, logos, service marks or Material belonging to ZINFI, without the prior written consent of ZINFI.

      3.3

      Where the Service includes the provision of any Materials to Client, during the term set forth in the Order Form, ZINFI grants Client a non-exclusive, revocable (at ZINFI’s sole discretion), non-transferable, licence to use such deliverables solely for the purposes of providing the Services identified in the Order Form, provided that Client have fully complied with all Client payment and other obligations.

      3.4

      Where Client provides any Materials to ZINFI, Client will retain ownership of such Materials, but grants to ZINFI a non-exclusive licence to use such Materials solely for the purposes identified in the Agreement. Notwithstanding any of the foregoing, any input and/or feedback provided by Client to ZINFI regarding ZINFI’s software, methodologies, processes or other ZINFI Materials, shall not be considered Client Material, and ZINFI shall own any improvements and/or derivative works relating to its software, processes, methodologies and/or other Materials constructed using such feedback and/or input from Client. Unless ZINFI uses Client communications or Materials in violation of this Agreement, Client agrees that it shall have no recourse against ZINFI for any alleged or actual infringement or misappropriation of any rights, title and/or interest (including but not limited to intellectual property rights) in and to Client communications with, or the Materials that Client provides to ZINFI.

      3.5

      Upon termination of the Agreement, ZINFI shall provide Administrative Access to Client for 30 days post termination solely for the purpose of downloading any Client Materials that Client provided to ZINFI during the course of the Agreement. After the expiration of that 30 day period, ZINFI will destroy and will not retain any Client Materials. For sake of clarity, any feedback and/or input that Client has provided regarding ZINFI’s software, methodologies, processes or other ZINFI Materials are not considered Client Materials and may be retained and used by ZINFI in its sole discretion.

       

    7. Representations and Warranties
    8. 4.1

      Client represents and warrants that:

      4.1.1

      It has acquired and will maintain throughout the term of this Agreement any and all approvals, rights, consents, authorisations, permissions or licences as may be required:

      (i)

      to enter into, and carry out its obligations under, this Agreement;

      (ii)

      for ZINFI to provide the Services to the Client, including use of third-party materials; or

      (iii)

      under any applicable laws, regulatory requirements, codes or other regulations, or any policies or guidelines as may be implemented from time to time by ZINFI,

      and Client shall not do or fail to do anything which would be in violation of or infringe any of the terms of such approval, right, consent, authorisation, permission or licence;

      4.1.2

      Client shall provide ZINFI with access to, and the right to use, disclose, publish, disseminate, modify, transfer, transmit or reproduce, such material as may be required by ZINFI to perform its obligations under this Agreement or as may from time to time be requested by ZINFI.

      4.1.3

      All material that Client have provided to ZINFI:

      (i)

      at all times contains only material which is truthful, accurate, complete and not misleading;

      (ii)

      complies at all times with all, and is not in breach of and does not infringe any, applicable laws;

      (iii)

      where applicable, complies with the technical standards and specifications as may be prescribed by ZINFI from time to time;

      (iv)

      does not contain any obscene, offensive, defamatory or otherwise actionable material; and

      (v)

      will not cause any disruption or damage to any computer or telecommunications systems, networks or equipment, or undermine the security or integrity of the same.

      4.2

      ZINFI makes no express or implied representation, warranty, guarantee or undertaking (whether under this Agreement, implied by law or otherwise), and expressly disclaims any express or implied representation, warranty, guarantee or undertaking, in relation to the provision of the Services or the performance of any of its obligations under this Agreement or any Material or deliverables provided to Client.

       

    9. Indemnity and Liability
    10. 5.1

      Except for intellectual property infringement and/or breaches of Sections 3-4 and 5.2, each parties’ liability (whether in contract or tort) to the other under this Agreement and/or in relation to any of the Services provided herein, shall in no event exceed the total fees paid or owing by Client under this Agreement, whichever is greater.

      5.2

      Client shall indemnify and hold harmless ZINFI (including its holding companies, subsidiaries, directors, officers, agents and employees) from any and all third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or in connection with any act or omission by Client, or any breach by Client of any representation, warranty, guarantee or undertaking under this Agreement, except for such where such Loss is due to ZINFI’s wilful breach of this Agreement. ZINFI shall indemnify and hold harmless Client (including its holding companies, subsidiaries, directors, officers, agents and employees) from any and all third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or in connection with any act or omission by ZINFI during the course of ZINFI’s performance of this Agreement, except for such where such Loss is due to Client’s wilful breach of this Agreement.

      5.3

      This Clause 5 shall survive any termination of this Agreement, the provision of the Services, or Client relationship with ZINFI.

       

    11. Termination
    12. 6.1

      Notwithstanding the Term set forth in the Order Form, ZINFI may suspend the provision of the Services to Client, or terminate this Agreement immediately if:

       
      6.1.1

      Client does not pay any amount due and payable by Client to ZINFI within 14 days after the due date of such amount;

      6.1.2

      Client becomes bankrupt or insolvent; or

      6.1.3

      Client has, committed a material breach of any of the terms of this Agreement.

      6.2

      ZINFI may, on and at any time after the date of termination of this Agreement, by written notice to Client, claim all or any part of the amounts due, together with any accrued interest, and all other amounts accrued or outstanding under this Agreement, be immediately payable to ZINFI, whereupon they shall become immediately due and payable.

      6.3

      ZINFI’s right to suspend the provision of Services or terminate this Agreement under this Clause 6 shall be without prejudice to any other rights or remedies which ZINFI may have at law, in equity or under any agreement (including but not limited to this Agreement).

       

    13. General
    14. 7.1

      ZINFI shall not be liable to Client by reason of any delay in performing, or any failure to perform, any of the Services or to discharge any of its obligations if the delay or failure was caused by any event or circumstance the occurrence of which ZINFI is unable to prevent or avoid, including but not limited to any failure and/or delay caused by a pandemic or other force majeure event, including but not limited to any failure and/or delay caused by a pandemic or other force majeure event.

      7.2

      No failure to exercise or enforce, and no delay on the part of ZINFI in exercising or enforcing, any of its rights under this Agreement shall operate as a waiver thereof, nor shall such failure or delay in any way prejudice or affect the right of ZINFI at any time thereafter to act strictly in accordance with its rights and powers under this Agreement.

      7.3

      Client shall not assign, transfer or encumber any or all of its rights, interests and obligations under this Agreement without ZINFI’s prior written consent. ZINFI may assign, transfer or encumber any or all of its rights, interests and obligations under this Agreement to or in favour of any affiliate, agent or third party without Client prior written consent.

      7.4

      This Agreement, together with any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with the laws of United States of America and by the laws of the State of California. Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration in the state of California, United States of America in accordance with the JAMS Arbitration Rules for the time-being in force, which rules are deemed to be incorporated by reference in this clause.

      7.5

      The Parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney’s fees (as provided by Section 7.6 below or otherwise), even if they would otherwise be available to that party in any such action. EXCLUSIONS FROM MEDIATION AND ARBITRATION: Any matter which is within the jurisdiction of a probate, small claims, or bankruptcy court is excluded from the mediation and arbitration requirement set forth in this Section and Section 7.4 above. In addition, the filing of a court action for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a violation of the mediation and/or arbitration provisions.

      7.6

      Subject to the provisions of Section 7.5, in the event of any dispute regarding the terms of this Agreement and/or any action (including but not limited to an any arbitration pursuant to Section 7.4) to recover any amounts owed under this Agreement, the prevailing party shall be entitled to collect from the other party all reasonable attorneys’ fees and costs incurred related to such dispute and/or action.

     

    Exhibit A – UCM Portal Module Descriptions

    The following is a list of all the modules and features that ZINFI provides in its Unified Channel Management (UCM) platform.  The Client’s Order Form clearly defines which of these modules are going to be active as a part of its Subscription

    Descriptions of Core Modules:

    Module Name

    Module Descriptions

    Native Applications for Mobile Devices

    The Mobile module comes with a set of mobile apps that are available for both the iOS and Android platforms. Administrators can define what applications are available via mobile app and what users have the access rights via mobile.

    Alerts & Notification Management

    The Alert module aggregates all system alerts via a unified console and allows users to set one or more notification preferences via email, SMS or mobile app. Users can also control the frequency of alerts, including individual or aggregate alerts.

    FluidCMS™ Content Management

    The FluidCMS™ module allows administrators to use drag-and-drop tools to create and manage web and campaign content to build dynamic and personalized portal pages, campaigns and other content on the fly.

    FlexiFlow™ Workflow Management

    Using FlexiFlow™, administrators can set up different application layouts, approval logics, alerts, reports and other functions to automate any business workflows. This capability allows organizations to dynamically adapt to rapidly changing business needs.

    Partners Profile Management

    Partners Profile Management granularly manages partner records – accounts, contacts, performance data, etc. Using this module, organizations can segment partners effectively into groups with various parameters for optimized management capabilities.

    Identify and Access Management (IAM)

    With the Identify and Access Management (IAM) module, administrators can dynamically set up and manage users, groups and granular access rights to various portal pages, applications, campaign contents and assets.

    Enterprise Change Management

    Enterprise Change Management keeps track of all changes made to the portal related to groups, users, content, workflows, etc. This is essential for audit purposes but also for reversing changes that have been made unintentionally or intentionally.

    Business Intelligence Reports 

    The Business Intelligence Reports module provides hundreds of default reports as well as tools for creating custom reports. This allows users to understand what is working and what needs improvement in channel performance/ programs at a local and global level.

    Centralized Interconnection (CENTRi™) Management

    The CENTRi™ (Centralized Interconnection) module allows administrators to seamlessly connect to third-party applications like CRM, LMS, ERP and POS via an easy-to-use connection management and field mapping interface, including SAML 2.0 SSO.

    Users & Group Management

    The Users Management module allows administrators to quickly set up users and assign them to various groups and profiles. Users can be added manually or set up via group upload using Excel or third-party SSO.

    All core modules must be active and available.

     

    Exhibit A Continued – Descriptions of Expand Modules:

    Module Name

    Module Descriptions

    Products Details Management

    With the Products module, organizations can upload variety of product-related content for use in both marketing and sales assets and activities. This module can also be used for Configure Price Quote (CPQ) and deal registration.

    Projects & Tasks Management

    Seamless collaboration with internal and external team members on projects and programs is easy with the Project module, which comes with tasks, notebooks, file-sharing and messaging features.

    Communicate To Partners Management

    The Communicate module comes with a cluster of marketing tools, such as email, microsites, events and social, which can be used to recruit, engage and enable partners. These tools can be made available to all internal channel team members.

    Marketplace Management

    Organizations can use the Marketplace to establish a list of complimentary products and services that the partners can purchase for their business use. This module provides complete order management capabilities to third-party providers.

    Partner Survey Management

    The Survey module can be used by anyone from the channel organization to get feedback from their partner base. Survey data can be aggregated via a reporting engine or housed individually within partner records.

    Documents Library Management

    Documents Library enables channel organizations to share partner-facing documents with various partner users based on status and access rights. Documents can be dynamically published and configured with expiration dates/times based on custom rules.

    Co-Branded Assets Management

    The Co-Branded Assets Management module enables an organization to provide digital assets to channel partners, who can then co-brand these assets and reuse them for various marketing- and sales-related activities.

    Partner Support Management

    The Support (Help Desk) module gives organizations the tools they need to establish a structured support infrastructure for end users that extends above and beyond traditional product and services support. The module uses an industry-standard ticketing system.

    Community & Discussions Management

    The Community module enables organizations to socially connect—both internally and externally—to facilitate communication and collaboration. This module seamlessly integrates with multiple UCM modules, but it can also work in a standalone fashion.

    Partner Locator Management

    Use Partner Locator to dynamically create a partner directory – making it easy for end users to find and contact partners who offer the right solutions. All leads generated from rule-based searches are fed into the UCM Lead module for distribution to specified users.

    The Client Order Form clearly defines which of these modules are going to be active as a part of Client’s Subscription

     

    Exhibit A Continued – Descriptions of Partner Relationship Management (PRM) Scale Modules:

    Module Name

    Module Descriptions

    Partner Business Plans Management

    The Partner Business Plans Management module enables an organization to develop business plans by working with internal and external partner stakeholders to ensure plan execution and compliance.

    Partner Contracts Management

    The Partner Contracts Management module enables an organization to dynamically manage and keep track of all the contractual documents that channel partners sign during the various phases of the partner engagement cycle. 

    Partner Learning Management

    The Partner Learning Management module enables an organization to manage channel partner training and certification by various partner tiers and types to grow partner competencies in a systematic way through structured curricula.

    Partner Onboarding Management

    Partner Onboarding Management automates partner recruitment and onboarding processes via step-by-step activities. Based on partner type, engagement and other variables, you can create different onboarding tracks.

    Partner Leads Management

    Partner Leads Management enables lead distribution to your partner base and manages the entire “contacts to contracts” process. It can help engage partner sales reps via round robin, shark tank and other lead management strategies.

    Market Development Funds (MDF) Management

    Market Development Funds Management enables organizations to allocate MDF and co-op funds to partners. Its also used to help partners apply for program funding and claim compensation through proper proof of execution.

    Deals Registration Management

    Deals provides set up for deal registration criteria and workflows for their partner base using UCM’s FlexiFlow and CENTRi modules. Workflows can be very simple or can cover complex, comprehensive deal registration processes.

    Rebates Management

    With Rebates, set up company rebates based on various performance targets and business rules. This makes it easy to set up an application process for partners to establish eligibility for rebate programs, as well as claiming rebates.

    The Order Form clearly defines which of these modules are going to be active as a part of the Client’s Subscription

    Leads & Deals Are Part of One Module in 9.x, but in 10.1 onwards they will be two separate modules

     

    Exhibit A Continued – Descriptions of Partner Marketing Management (PMM) Scale Modules:

    Module Name

    Module Descriptions

    Search Marketing Management

    The Search Marketing Management module provides dynamic linkage between paid ad (Google AdWords, Facebook, etc.) search network and marketing campaigns, and is used for multi-partner inbound integrated lead generation.

    Social Syndication Management

    The Social Syndication Management module enables an organization to syndicate social media content via the channel partner network. Partners can auto stream or manually customize each social feed for instant or delayed posting.

    Direct Mail Marketing Management

    The Direct Mail module allows for set up of co-branded direct mail templates for partner use in the form of post cards, brochures and other formats. This module can also be connected to national printers for seamless shipping and mailing.

    Email Marketing Management

    The Email Marketing Management module enables an organization to set up multi-touch co-branded emails. These emails create the foundation of various integrated campaigns, whether they lead to microsites, events, syndication or call campaigns. 

    Microsite & Landing Page Management

    The Microsite & Landing Page Management module enables an organization to set up co-branded microsites or landing pages. This allows partners to engage their prospects and customers via single-touch or multi-touch digital drip campaigns. 

    Event Marketing Management 

    Event Marketing Management enables an organization to set up trigger-ready multi-touch “event in a box” campaigns that can be quickly co-branded and customized, allowing channel partners to engage their prospects/customer base. 

    Web Syndication Management

    Web Syndication Management enables distribution of product and solution web showcases via a partner’s website. Web syndication amplifies organizational reach and lead generation through a distributed channel partner network.

    Multi-Touch Campaign Management

    Multi-Touch Campaign Management module called FlexiTouch™, enables customers and their partners to create to easily define the flow of a multi-tactic, multi-touch campaign and create a multi-touch drip campaign with pre-configured tactics and assets, and utilize them in various marketing activities. FlexiTouch’s canvas user interface with drag-and-drop functionality provides an essential tool for creating quick and effective marketing initiatives.

    The Client’s Order Form clearly defines which of these modules are going to be active as a part of the Client’s Subscription.

     

    Exhibit A Continued – Descriptions of Partner Sales Management (PSM) Scale Modules

    Module Name

    Module Descriptions

    Rapid Dialer Management

    The Rapid Dialer Management module provides a high-volume automated dialing capability to partner sales reps for more efficient telemarketing. The module makes it easy for reps to follow up on leads and develop sales qualified opportunities.

    Buyers Engagement Management

    The Buyers Engagement Management module provides tools for channel sales reps and their partner reps for sending digital content such as emails, landing pages and solution showcases to prospects, and for tracking engagement. 

    Configure Price Quote (CPQ) Management

    The Configure Price Quote (CPQ) module enables an organization to offer special pricing and quotes approval mechanisms for partner sales reps, channel reps and channel management team members. 

    Channel Data Management (CDM)

    The Channel Data Management module enables an organization to access point-of-sales data from distributors and resellers to track performance by region, territory, reseller and product, and to proactively manage inventory.

    Sales Gamification Management

    The Sales Gamification Management module enables an organization to promote various sales rewards programs. Organizations can use a leaderboard to stimulate competition and drive rep engagement in a virtual environment. 

    Commissions Management

    Both internal channel teams and external partners can use the Commission model to align with quarterly programs, campaigns and run rate business. Users can set up business logic with UCM’s FlexiFlow module.

    Sales Rewards Management

    With the Sales Rewards module, organizations can set up channel sales programs for internal and external users and track progress in a unified interface. This module also allows filing of reward claims and stack ranking status. The logic is built via UCM’s FlexiFlow module.

    Sales Desk Management

    The Sales Desk module seamlessly integrates with the Leads, Deals, Support and CPQ modules to provide a unified dashboard for order management. Both internal and external users can access this dashboard to communicate and track status.

    The Client’s Order Form clearly defines which of these modules are going to be active as a part of the Client’s Subscription.

    Future releases – check with sales for exact dates

     

    Exhibit B – UCM Platform Setup & Ongoing Support

    The following is a list of activities that ZINFI would carry out to train Client for setting up ZINFI’s Unified Channel Management (UCM) platform for Client’s business.

    UCM Portal Configuration & Setup Training

    Platform Setup Support: Using available support hours procured by Client, ZINFI can assist Client in portal setup and configuration. Exhibit 1 of the Client Subscription Order Form includes training and support hours of portal configuration and set up

    Platform Connectors: Please refer to Exhibit 1 of the Client Subscription Order Form for more details

    Once procured professional services hours have been consumed for portal creative services and custom workflow configuration services, additional services will be billed at the rate specified Exhibit 3 of the Order Form. This would require change order or separate an addendum to this Agreement.

    Once the UCM portal has been set up, ZINFI will be providing ongoing support to Client. The following table describes in detail the nature of support that will be provided by ZINFI’s Program Management team members.

    UCM Portal Ongoing Support – Client Facing

    Level 1 Inbound Support (Ongoing Customer & Partner Care): ZINFI will provide 24×5 Client and Partner Care resources that would provide unlimited inbound support to Client.

    Professional Services Projects (Future Portal Configuration Services): Client can procure additional professional services hours at the rate specified in Exhibit 3 of the Order Form (above and beyond annual support hours provided along with annual subscription fees).

    Once the UCM portal has been launched, ZINFI will be providing ongoing support to Client’s partners. The following table describes in detail the nature of support that will be provided by ZINFI’s Technical Support team members.

    UCM Portal Ongoing Support – Partner Facing (Level 1 Inbound Technical Support Services)

    • Level 1 (Inbound) Technical Support (English)

      • Includes 8×5 English, inbound support (Email/Chat/Phone)

      • Assist partners with any items relating to the platform use, e.g., navigating the portal, locating assets and training partners on how to execute campaigns.

    • This service is offered as an inclusive free feature of ZINFI’s Unified Channel Management (UCM) platform. The primary purpose of Level 1 Technical Support services is to provide partners anything related to ZINFI’s UCM platform.

    • Level 1 service is only provided in English as an inbound mode on a 24×5 basis covering all geographies. This service delivery is based on inbound phone calls, emails and chat support. In order to resolve a specific issue or request, if an inbound request cannot be resolved in one touch, a Technical Support may reach out to a user at a later time, but at no time a Level 1 Technical Support personnel will reach out to a user unsolicited, unless authorized by Client.

    • All outbound marketing and sales outreach are part of ZINFI’s Level 2 concierge services and are paid premiums services.

    For additional details on various support packages, please refer Exhibit 3 of the Order Form & Technical Support & Professional Services Pricing Details.

     

    Exhibit C – Licensing Definitions (Partner Bands)

    The following section describes in detail ZINFI’s UCM SaaS licensing structure:

    *Definition of the word “Partners” in “Partner Bands” related to any license band is defined as follows:

    • The word “Partners” refers to unique partner accounts (UPA). Each UPA is determined by their email domain, e.g., @partner.com and each UPA can have unlimited users under that email domain of @partner.com. However, if a Client has licensed up to a certain partner band then at any moment the total number of UPAs having “access rights” to the Portal on an annual basis cannot exceed the licensed partner band. ZINFI will notify the Client on a monthly basis the total UPAs that have access right to the Portal, and Client has the right to remove access of any UPA to keep the total UPAs accessing the Portal and stay within the licensed band.

    Important Notes:
    • For example – If a Client has licensed up to 100 Partners band then on an annual basis no more than 100 UPAs can access the UCM platform.

      • Clarification – If a Client has licensed up to 100 Partners band and assigned access rights to 100 UPAs then for licensing purposes, ZINFI would consider all 100 UPAs have access rights, independent of the fact a great portion of them may not ever access the Portal at all. Client will have to manage this access right proactively to make sure at any time no more than 100 UPAs have access to the Portal under the “100 Partners” licensed band. Client does have the right to replace one UPA with another UPA to remain within the 100 UPA limit in this case.

      • Upgrade to the next partner band can be done by signing an addendum to this Agreement. Both parties must agree in writing for such increase.

    • For example – if the total number of UPAs who need to access the Portal during the term of this agreement exceed from 100 partners to 101 partners then both parties must sign an addendum in upgrading the license band from 100 to the next available license band, for example 250, or to another authorized level

      • Downgrade to a lower partner band is not available during the term of this agreement.

    The following section describes in detail ZINFI’s UCM SaaS licensing structure:

    Unique Account Approved

    Unique Email Domain

    No. of Users

    License Consumed

    Parent/Client Account

    @client.com.

    5

    None

    X Partner US Account

    @xpartner.com

    3

    1

    X Partner German Account

    @xpartner.de

    2

    1

    Y partner Account

    @ypartner.com

    1

    1

    Z partner Account

    @zpartner.com

    0

    1

    Total number of licenses consumed

    4

    For further details, please refer to the License Management (Ext.prd.001.08 | 01.07.2021) document.

     

    Exhibit D – Data Processing Agreement

    This Data Processing Addendum, including its Schedules and Appendices, (“DPA”) forms part of the Agreement between ZINFI and Client (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.  To the extent there is a conflict between the terms of this addendum and the Agreement, the terms of the Agreement shall control.

    By signing the Agreement, Client enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent ZINFI processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Client” shall include Client and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement. ZINFI and Client may be individually referred to hereinafter as a “Party” and collectively as the “Parties”.

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

     

    HOW TO EXECUTE THIS DPA:

    1. This DPA consists of two parts: the main body of the DPA, and Schedules 1, 2, and 3 (including Appendices 1 to 2).

    2. This DPA has been pre-signed on behalf of ZINFI. The Standard Contractual Clauses in Schedule 3 have been pre-signed by ZINFI Technologies. Inc as the data importer. Please note that the contracting entity under the Agreement may be a different entity to ZINFI Technologies. Inc.

    3. To complete this DPA, Client must complete the information in the signature box and sign on Page 4 and sign the DPA concurrently with the Order Form.

    Upon receipt of the validly completed DPA by ZINFI at this email address, this DPA will become legally binding.

    For the avoidance of doubt, signature of the DPA on Page 23 shall be deemed to constitute signature and acceptance of the Standard Contractual Clauses incorporated herein, including their Appendices. Where Client wishes to separately execute the Standard Contractual Clauses and its Appendices, Client should also complete the information as the data exporter on Page 16 and complete the information in the signature box and sign on Pages 27, 31-32 and 34.

    HOW THIS DPA APPLIES

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

    If the Client entity signing this DPA has executed an Agreement with ZINFI or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form and applicable renewal Order Forms, and the ZINFI entity that is party to such Agreement is party to this DPA.

    If the Client entity signing this DPA is neither a party to an Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Client entity who is a party to the Agreement execute this DPA.

    This DPA shall not replace any comparable or additional rights relating to Processing of Client Data contained in Client’s Agreement (including any existing data processing addendum to the Agreement).

    DATA PROCESSING TERMS

    1. DEFINITIONS

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

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

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

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

      Client” means the entity that executed the Agreement together with its Affiliates (for so long as they remain Affiliates) which have signed Agreements.

      “Client Data” means what is defined in the Agreement as “Client Data” or “Your Data”, provided that such data is electronic data and information submitted by or for Client to the Services.

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

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

      GDPR” means the 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).

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

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

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

      “ZINFI” means the ZINFI entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, being ZINFI Technologies. Inc, a company incorporated in California, US.

      “ZINFI Group” means ZINFI and its Affiliates engaged in the Processing of Personal Data.

      “Standard Contractual Clauses” means the agreement executed by and between Client and ZINFI Technologies. Inc and attached  hereto  as Schedule  3  pursuant  to  the  European  Commission’s decision (C(2010)593)  of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

      “Sub-processor” means any Processor engaged by ZINFI or a member of the ZINFI Group.

      Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

    2. PROCESSING OF PERSONAL DATA

      2.1

      Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, Client is the Controller, ZINFI is the Processor and that ZINFI or members of the ZINFI Group will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.

      2.2

      Client’s Processing of Personal Data. Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of ZINFI as Processor. For the avoidance of doubt, Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Client shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Client acquired Personal Data. Client specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.

      2.3

      ZINFI’s Processing of Personal Data. ZINFI shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Client’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Client (e.g., via email) where such instructions are consistent with the terms of the Agreement.

      2.4

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

    3. RIGHTS OF DATA SUBJECTS

      Data Subject Request. ZINFI shall, to the extent legally permitted, promptly notify Client if ZINFI receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request”. Taking into account the nature of the Processing, ZINFI shall assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Client, in its use of the Services, does not have the ability to address a Data Subject Request, ZINFI shall upon Client’s request provide commercially reasonable efforts to assist Client in responding to such Data Subject Request, to the extent ZINFI is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Client shall be responsible for any costs arising from ZINFI’s provision of such assistance.

    4. ZINFI PERSONNEL

      4.1

      Confidentiality. ZINFI shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. ZINFI shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

      4.2

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

      4.3

      Limitation of Access. ZINFI shall ensure that ZINFI’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.

      4.4

      Data Protection Officer. Members of the ZINFI Group have appointed a data protection officer. The appointed person may be reached at [email protected].

    5. SUB-PROCESSORS

      5.1

      Appointment of Sub-processors. Client acknowledges and agrees that (a) ZINFI’s Affiliates may be retained as Sub-processors; and (b) ZINFI and ZINFI’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. ZINFI or a ZINFI Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in the Agreement with respect to the protection of Client Data to the extent applicable to the nature of the Services provided by such Sub-processor.

      5.2

      List of Current Sub-processors and Notification of New Sub-processors. ZINFI shall make available to Client the current list of Sub-processors for the Services identified in Appendix 3 of the Standard Contractual Clauses attached hereto. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Infrastructure and Sub-processor Documentation”).

      5.3

      Objection Right for New Sub-processors. Client may object to ZINFI’s use of a new Sub-processor by notifying ZINFI promptly in writing within thirty (30) days after receipt of ZINFI’s notice in accordance with the mechanism set out in Section 5.2. In the event Client objects to a new Sub-processor, as permitted in the preceding sentence, ZINFI will use reasonable efforts to make available to Client a change in the Services or recommend a commercially reasonable change to Client’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Client. If ZINFI is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Client may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by ZINFI without the use of the objected-to new Sub-processor by providing written notice to ZINFI. ZINFI will refund Client any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Client.

      5.4

      Liability. ZINFI shall be liable for the acts and omissions of its Sub-processors to the same extent ZINFI would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.

    6. SECURITY

      6.1

      Controls for the Protection of Client Data. ZINFI shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Client Data), confidentiality and integrity of Client Data. ZINFI regularly monitors compliance with these measures. ZINFI will not materially decrease the overall security of the Services during a subscription term.

      6.2

      Third-Party Certifications and Audits. ZINFI has obtained third-party certifications and audits. Upon Client’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, ZINFI shall make available to Client that is not a competitor of ZINFI (or Client’s independent, third-party auditor that is not a competitor of ZINFI) a copy of ZINFI’s then most recent third-party audits or certifications, as applicable.

    7. CLIENT DATA INCIDENT MANAGEMENT AND NOTIFICATION

      ZINFI maintains security incident management policies and procedures and shall notify Client without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client Data, including Personal Data, transmitted, stored or otherwise Processed by ZINFI or its Sub-processors of which ZINFI becomes aware (a “Client Data Incident”). ZINFI shall make reasonable efforts to identify the cause of such Client Data Incident and take those steps as ZINFI deems necessary and reasonable in order to remediate the cause of such a Client Data Incident to the extent the remediation is within ZINFI’s reasonable control. The obligations herein shall not apply to incidents that are caused by Client or Client’s Users.

    8. RETURN AND DELETION OF CLIENT DATA

      ZINFI shall return Client Data to Client and, to the extent allowed by applicable law, delete Client Data in accordance with the procedures and timeframes specified in the Agreement.

    9. AUTHORIZED AFFILIATES

      9.1

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

      9.2

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

      9.3

      Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with ZINFI, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:

       
      9.3.1

      Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against ZINFI directly by itself, the Parties agree that (i) solely the Client that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Client that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together (as set forth, for example, in Section 9.3.2, below).

      9.3.2

      The Parties agree that the Client that is the contracting party to the Agreement shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on ZINFI and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.

    10. LIMITATION OF LIABILITY

      Each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and ZINFI, whether in contract, tort, or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a Party means the aggregate liability of that Party and all of its Affiliates under the Agreement and all DPAs together.

      For the avoidance of doubt, ZINFI’s and its Affiliates’ total liability for all claims from Client and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Client and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Client and/or to any Authorized Affiliate that is a contractual party to any such DPA.

    11. EUROPEAN SPECIFIC PROVISIONS

      11.1

      GDPR. ZINFI will Process Personal Data in accordance with the GDPR requirements directly applicable to ZINFI’s provision of its Services.

      11.2

      Data Protection Impact Assessment. Upon Client’s request, ZINFI shall provide Client with reasonable cooperation and assistance needed to fulfill Client’s obligation under the GDPR to carry out a data protection impact assessment related to Client’s use of the Services, to the extent Client does not otherwise have access to the relevant information, and to the extent such information is available to ZINFI. ZINFI shall provide reasonable assistance to Client in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of this DPA, to the extent required under the GDPR.

      11.3

      Transfer mechanisms for data transfers. Subject to the additional terms in Schedule 1, ZINFI makes available the transfer mechanisms listed below which shall apply to any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations:

       

      The Standard Contractual Clauses set forth in Schedule 3 to this DPA apply to the Services listed in Appendix 3 to the Standard Contractual Clauses (the “SCC Services”), subject to the additional terms in Section 2 of Schedule 1.

    12. PARTIES TO THIS DPA

      The Section “HOW THIS DPA APPLIES” specifies which ZINFI entity is party to this DPA. Where the Standard Contractual Clauses are applicable, ZINFI Technologies. Inc is the signatory to the Standard Contractual Clauses. Where the ZINFI entity that is a party to this DPA is not ZINFI Technologies. Inc, that ZINFI entity is carrying out the obligations of the data importer on behalf of ZINFI Technologies. Inc. Notwithstanding the signatures below of any other ZINFI entity, such other ZINFI entities are not a party to this DPA or the Standard Contractual Clauses.

    13. LEGAL EFFECT

      This DPA shall only become legally binding between Client and ZINFI (and ZINFI Technologies. Inc, if different) when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully completed.

     

    List of Schedules

    Schedule 1: Transfer Mechanisms for European Data

    Transfers Schedule 2: Details of the Processing

    Schedule 3: Standard Contractual Clauses

    The Parties’ authorized signatories have duly executed this DPA

     

    SCHEDULE 1 – TRANSFER MECHANISMS FOR EUROPEAN DATA TRANSFERS

    1. ADDITIONAL TERMS

      1.1

      Clients covered. The additional terms in this Section 1 of this Schedule 1 shall apply to the Processing of Personal Data of a Client established in (i) European Economic Area member states whose processing activities for the relevant data are governed by the GDPR and/or implementing national legislation; (ii) the United Kingdom; (iii) Switzerland; or (iv) non-European Economic Area member states for which Client has contractually specified that the GDPR and implementing national legislation shall apply.

      1.2

      Audits and Certifications. Upon Client’s request, and subject to the confidentiality obligations set forth in the Agreement, ZINFI shall make available to Client that is not a competitor of ZINFI (or Client’s independent, third-party auditor that is not a competitor of ZINFI) information regarding ZINFI’s compliance with the obligations set forth in this DPA. Client may contact ZINFI in accordance with the “Notices” Section of the Agreement to request an on-site audit of the architecture, systems and procedures relevant to the protection of Personal Data at locations where Personal Data is stored. Client shall reimburse the ZINFI Group for any time expended by the ZINFI Group or its third-party Sub-processors for any such on-site audit at the ZINFI Group’s then-current professional services rates, which shall be made available to Client upon request. Before the commencement of any such on-site audit, Client and ZINFI shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by the ZINFI Group, or its third-party Sub-processors. Client shall promptly notify ZINFI with information regarding any non-compliance discovered during the course of an audit.

    2. ADDITIONAL TERMS FOR SCC SERVICES

      2.1

      Clients covered by the Standard Contractual Clauses. The Standard Contractual Clauses and the additional terms specified in this Section 2 apply to (i) Client which 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, (ii) its Authorized Affiliates. For the purpose of the Standard Contractual Clauses and this Section 2, the aforementioned entities shall be deemed “data exporters”.

      2.2

      Instructions. This DPA and the Agreement are Client’s complete and final documented instructions at the time of signature of the Agreement to ZINFI for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Client to process Personal Data: (a) Processing in accordance with the Agreement; (b) Processing initiated by Users in their use of the SCC Services and (c) Processing to comply with other reasonable documented instructions provided by Client (e.g., via email) where such instructions are consistent with the terms of the Agreement.

      2.3

      Appointment of new Sub-processors and List of current Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Client acknowledges and expressly agrees that (a) ZINFI’s Affiliates may be retained as Sub-processors; and (b) ZINFI and ZINFI’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the SCC Services. ZINFI shall make available to Client the current list of Sub-processors in accordance with Section 5.2 of this DPA

      2.4

      Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Client acknowledges and expressly agrees that ZINFI may engage new Sub-processors as described in Sections 5.2 and 5.3 of the DPA.

      2.5

      Copies of Sub-processor Agreements. The Parties agree that the copies of the Sub-processor agreements that must be provided by ZINFI to Client pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by ZINFI beforehand; and, that such copies will be provided by ZINFI, in a manner to be determined in its discretion, only upon request by Client.

      2.6

      Audits and Certifications. The Parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications:

      Upon Client’s request, and subject to the confidentiality obligations set forth in the Agreement, ZINFI shall make available to Client that is not a competitor of ZINFI (or Client’s independent, third-party auditor that is not a competitor of ZINFI) information regarding the ZINFI Group’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits to the extent ZINFI makes them generally available to its Clients. Client may contact ZINFI in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. Client shall reimburse ZINFI for any time expended for any such on-site audit at the ZINFI Group’s then-current professional services rates, which shall be made available to Client upon request. Before the commencement of any such on-site audit, Client and ZINFI shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by ZINFI. Client shall promptly notify ZINFI with information regarding any non-compliance discovered during the course of an audit.

      2.7

      Certification of Deletion. The Parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by ZINFI to Client only upon Client’s request.

      2.8

      Conflict. In the event of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Schedule 3, the Standard Contractual Clauses shall prevail.

     

    SCHEDULE 2 – DETAILS OF THE PROCESSING

    Nature and Purpose of Processing

    ZINFI will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Client in its use of the Services.

    Duration of Processing

    Subject to Section 8 of the DPA, ZINFI will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

    Categories of Data Subjects

    Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

        1. Prospects, Clients, business partners and vendors of Client (who are natural persons)

        2. Employees or contact persons of Client’s prospects, Clients, business partners and vendors

        3. Employees, agents, advisors, freelancers of Client (who are natural persons)

        4. Client’s Users authorized by Client to use the Services

    Type of Personal Data

    Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

        1. First and last name

        2. Title

        3. Position

        4. Employer

        5. Contact information (company, email, phone, physical business address)

        6. ID data

        7. Professional life data

        8. Personal life data

        9. Localisation data

    Special categories of data (if appropriate)

    Client may submit special categories of Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

     

    SCHEDULE 3 – STANDARD CONTRACTUAL CLAUSES

    The data exporter and data importer (as defined by the Order Form executed by the Parties) AGREE 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.

    For the purposes of the Clauses:

    Clause 1

    Definitions

    For the purposes of the Clauses:

    1. ‘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;

    2. the data exporter’ means the controller who transfers the personal data;

    3. ‘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.

    4. ‘the subprocessor’ subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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;

    5. 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.

    6. ‘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 subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses. Such third-party liability of the subprocessor 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.

    The data exporter agrees and warrants:

    Clause 4

    Obligations of the data exporter

    1. 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;

    2. 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;

    3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;

    4. 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;

    5. that it will ensure compliance with the security measures;

    6. 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;

    7. to forward any notification received from the data importer or any subprocessor 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;

    8. 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 subprocessing 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;

    9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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

    10. that it will ensure compliance with Clause 4(a) to (i).

    The data exporter agrees and warrants:

    Clause 5

    Obligations of the data importerto 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;

    1. 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;

    2. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

    3. that it will promptly notify the data exporter about:

      1. 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,

      2. any accidental or unauthorized access, and

      3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

    4. 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;

    5. 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;

    6. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, 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;

    7. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

    8. that the processing services by the subprocessor will be carried out in accordance with Clause 11;

    9. to send promptly a copy of any subprocessor 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 subprocessor 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 subprocessor 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 subprocessor 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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor 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:

      1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

      2. 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 subprocessor, 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 subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, 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 United States, and to the extent the personal data of a Member State is implicated, the law of that Member State.

    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

    Subprocessing

    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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

    2. The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.

    3. The provisions relating to data protection aspects for subprocessing 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 subprocessing 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 subprocessor 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 subprocessor 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): which may transfer personal data to the data importer in accordance with the terms of the attached Data Privacy Policy  found at https://www.zinfi.com/privacy-policy/ (“ZINFI’s Data Privacy Policy”) and any other agreement between the parties thereto.

    Data importer
    The data importer is (please specify briefly activities relevant to the transfer): ZINFI Technologies, Inc. as defined in ZINFI’s Data Privacy Policy and which may process personal data received from the data exporter in accordance with with the terms of ZINFI’s Data Privacy Policy and any other agreement between the parties thereto.

    Data subjects
    The personal data transferred concern the following categories of data subjects (please specify): Unless provided otherwise by data exporter, data subjects may include employees, contractors, business partners, Clients, and potential Clients, and any other individuals whose personal data is required to be transferred to Contractor to perform the Services as defined under ZINFI’s Data Privacy Policy.

    Categories of data
    The personal data transferred concern the following categories of data (please specify): Personal data as described in Paragraph II.A. of ZINFI’s Data Privacy Policy.

    Special categories of data (if appropriate)
    The personal data transferred concern the following special categories of data (please specify): Data exporter will not submit special categories of data to the data importer unless they are specifically enumerated here.

    Processing operations
    The personal data transferred will be subject to the following basic processing activities (please specify): All processing necessary to perform the Services as defined in ZINFI’s Data Privacy Policy.

     

    Appendix 2 to the Standard Contractual Clauses

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

    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):

    Overview 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):

    Physical Access Control
    Measures to ensure that unauthorized persons will not have physical access to systems used to process Personal Data.

    • security guards, doormen

    • (issue of) keys and corresponding documentation electronic access control system

    • video surveillance (cctv)

    • security checks for any external companies/services

    • security checks for visitors (escorting of visitors)

    • security guidelines for utilization of mobile devices (e.g., smartphones, notebook computers)

    System Access Control
    Measures to prevent data processing systems from being used without authorization:

    • password guidelines (incl. digits/special characters, min. length, password expiration, password history)

    • multi-factor authentication

    • automatic log-out or password-protected screensaver after certain time period without user activity

    • access authentication rules for terminals and users

    • firewall, anti-virus protection

    • intrusion detection/intrusion prevention

    • logging of access

    • securing external interfaces

    Data Access Control
    Measures to ensure that persons authorized to use data processing systems have access only to those data they are authorized to access, and that Personal Data cannot be read, copied, altered or removed without authorization during processing, use and after:

    • access control concept (access rights limited by profiles and roles)

    • documentation of access rights

    • approval and assignment of access rights through authorized personnel only

    Data Transfer Control
    Measures to ensure that Personal Data cannot be read, copied, altered or removed without authorization during electronic transfer or transport or while being recorded onto data storage media, and that it is possible to ascertain and check which bodies are to be transferred Personal Data using data transmission facilities:

    • transport encryption

    • encryption of physical data carriers

    Data Entry Control
    Measures to ensure that it is possible after the fact to check and ascertain whether Personal Data have been entered into, altered or removed from data processing systems and if so, by whom:

    • documenting / logging of physical access

    • logging of system access (e.g., login name, IP address)

    • logging of individual actions

    • other event logging (e.g., intrusion and hacking attempts, unsuccessful login attempts)

    Control of Processors
    Measures to ensure that Personal Data processed on behalf of others is processed strictly in compliance with the data exporter’s instructions:

    • Business contact details such as Name, business email, business phone numbers, etc. would be primarily processed and housed by the data importer

    • data processing agreements

    Availability Control
    Measures to ensure that Personal Data are protected against accidental destruction or loss:

    • backup in separate location and regular tests of recovery procedures

    • business continuity/disaster recovery concept

    • uninterruptable power supply (UPS)

    • anti-theft measures

    • fire protection (early-warning-fire-detection, extinguishing system)

    • water protection

    • redundant air conditioning system

    Separation of Data
    Measures to ensure that data collected for different purposes can be processed separately:

    • clear physical and/or logical separation of data from data of other data exporters

    • separated systems for development, test and productive environment

    • pseudonymisation of data.

     

    ILLUSTRATIVE INDEMNIFICATION CLAUSE

    Liability

    The parties agree that if one party is held liable for a violation of the clauses committed by the other party, the latter will, to the extent to which it is liable, indemnify the first party for any cost, charge, damages, expenses or loss it has incurred.
    Indemnification is contingent upon:

    1. the data exporter promptly notifying the data importer of a claim; and

    2. the data importer being given the possibility to cooperate with the data exporter in the defence and settlement of the claim.

     

    Exhibit E – Service Level Agreement

    Service Level Agreement (SLA):
    ZINFI’s SaaS application is provided as-is and no warranties above and beyond uptime will be provided. As a part of uptime warranty, ZINFI will provide an hourly credit for every hour ZINFI’s system is fatally impaired and not available to deliver its SaaS services to all users. In such cases and hourly credit note calculated and provided to Clients as follows:

    • Total Hourly Credit Amount = Total Annual SaaS Subscription Contract Value ($**** / (365 days x 24 hours per day)), i.e. $*** per hour

    • Client can apply credit notes to any future professional service invoices”

    • For further details, please refer to the SLA document (Ext.prc.002.07 | 01.05.2021)

    Note: ZINFI to securely delete client data and/or return it upon termination of this agreement.

     

    Exhibit F– Details of Billable & Non-billable Activities

    Billable and Non-Billable Activities – ZINFI has numbers of activities related to professional services by multiple functions. ZINFI tracks the hours for every activity and will charge Client as per billable hours.

    If Client buys out annual support hours or any bulk pro-pack hours, ZINFI will track the billable hours against those pre-purchased hours and sends a detailed monthly report to Client on utilization of those hours. Once Client utilizes all the pre-purchased hours, Client must need to buy any pro-pack hours and pay out ZINFI on a monthly basis as per utilized hours over pre-purchased hours if Client seeks the support of ZINFI professional service team.

    For further details, please refer to the Billable & Non-Billable document (Ext.prc.001.02 | 02.04.2021)

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