PRODUCTIV TERMS OF SERVICE

MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (the “Agreement”) describes the terms and conditions that govern the acquisition and use of the SaaS Intelligence services (the “Services”) provided by Productiv, Inc. (“Productiv”). The Agreement is effective between Customer (defined below) and Productiv as of the date of Customer’s accepting this Agreement (the “Effective Date”).

BY ACCEPTING THIS AGREEMENT, BY (1) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, (2) REGISTERING AN ACCOUNT WITH PRODUCTIV, (3) OR ACCESSING OR USING SERVICES, INCLUDING EVALUATION SERVICES (DEFINED BELOW), CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. IF CUSTOMER REGISTERS FOR OR USES AN EVALUATION SERVICE, APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THOSE EVALUATION SERVICES.

  1. Definitions.
    1. Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. “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.
    2. Authorized User” means an individual who is authorized by Customer to use the Services or submit Customer Data.
    3. Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms
    4. Customer Data” means all data related to Customer’s organization, SaaS application usage and spend submitted by or on behalf of Customer to the Services. As used herein, “submit” includes providing data via upload, APIs, or otherwise transmitting to the Services.
    5. Documentation” means Productiv’s product documentation for the applicable Services made available via https://help.productiv.com/ (or a successor site).
    6. Evaluation Services” means features or functionality that Productiv may make available to Customer to try, at its option, and which may be designated by Productiv as a beta, limited release, essentials, evaluation, pilot, or by a similar description.
    7. Non-Productiv Product” means any web-based, offline, mobile, or other software applications and associated APIs that are provided by Customer or a third party and interoperate with a Service.
    8. Order Form” means an ordering document (including any online order) specifying the Services to be provided hereunder that is entered into between Customer and Productiv.
    9. Order Term” means the subscription term for a purchased Service. Each Order Term will be specified in an Order Form.
    10. Security Practices” means Productiv’s security practices set forth in Schedule A.
    11. Services” means the SaaS intelligence platform, analytics and services provided by Productiv. “Services” excludes Non-Productiv Products.
    12. Support” means the technical support provided by Productiv for the applicable Services plan.
  2. Productiv Obligations.
    1. Provision of Services. Productiv will (i) make the Services purchased under an Order Form available to Customer during the applicable Order Term and pursuant to this Agreement; (ii) provide standard Support to Customer at no additional charge, or, upgraded Support, if purchased on an Order; and (iii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which Productiv gives prior electronic notice).
    2. Performance and Features. Productiv warrants that (i) the Services will perform materially in accordance with the Order Form and any applicable Documentation; and (ii) Productiv will not materially decrease the functionality of a purchased Service during an Order Term. For any breach of an above warranty, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Refund or Payment upon Termination.”
    3. Protection of Customer Data. Productiv will maintain administrative, physical, and technical safeguards for the security, confidentiality and integrity of Customer Data at a level not materially less protective than as described in the Security Practices. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by Productiv personnel. Before providing necessary access to Customer Data to a third-party service provider, Productiv will ensure that the third-party maintains reasonable data practices for maintaining the confidentiality and security of the Customer Data and preventing unauthorized access to or use of the Customer Data. However, Customer bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives or agents’ possession or control.
    4. Productiv Personnel. Productiv will be responsible for the performance of Productiv’s personnel (including Productiv’s employees and independent contractors) and their compliance with Productiv’s obligations under this Agreement.
    5. Compliance with Laws. Productiv will comply with laws applicable to Productiv in its provisioning of the Services to its customers generally.
    6. Data Processing Addendum. In the course of providing the Services to Customer, Productiv may process Customer Data that includes information relating to an identified or identifiable natural person (“Personal Data”). The parties agree that the Data Processing Addendum set forth at https://productiv.com/terms-of-service/ forms a part of and supplements this Agreement with respect to the processing of any such Personal Data.
    7. Evaluation Services. From time to time, Customer may be invited to try Evaluation Services at no charge for a free trial, preview or evaluation period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EVALUATION SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PRODUCTIV SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE EVALUATION SERVICES, INCLUDING WITH RESPECT TO THEIR PERFORMANCE, SPEED, FUNCTIONALITY, AND SUPPORT. Unless otherwise stated on a relevant Order Form, Productiv may discontinue Evaluation Services at any time in its sole discretion. Customer is solely responsible for backing up and/or exporting Customer Data from the Evaluation Services prior to termination of Customer’s access to the Evaluation Services for any reason.
  3. Access and Use of Services.
    1. Use of Services. Subject to the terms of this Agreement, Productiv grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the applicable Order Term to allow its Authorized Users to access and use the Services in accordance with the Order Form, solely for Customer’s internal business operations.
    2. Customer Obligations. Customer will (a) be responsible for all activities conducted under its and its Authorized Users’ use of the Services, and secure all access credentials provided by Productiv, (b) access and use the Services in compliance with this Agreement, the applicable Order, and all applicable laws, (c) be responsible for the accuracy, quality and legality of Customer Data, (d) comply with terms of service of any Non-Productiv Applications with which Customer uses Services, and (e) not (i) access the Services for the purpose of building a competitive product or service, (ii) copy or create derivative works based on the Services, or any portion thereof, and (iii) reverse engineer, modify, adapt, or disrupt the proper operation of the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks.
    3. Removal Requests. Productiv has no obligation to monitor Customer’s use of the Services but Productiv may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of Section 3(b).
  4. Fees.
    1. Services Fees. Customer will pay Productiv the applicable fees for the Services specified in the relevant Order Form (collectively, the “Fees”). Payment obligations are non-cancelable and, except as expressly set forth herein, Fees paid are non-refundable. If Customer’s use of the Services exceeds any applicable limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage in accordance with 4(b) below and Customer agrees to pay the additional Fees in the manner provided therein.
    2. Invoice. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Productiv will bill Customer through invoices sent via email to the billing contact designated by Customer, unless a payment method is otherwise specified in the Order Form. Full payment for invoices issued must be received within thirty (30) days from the invoice date. Except for those taxes based on Productiv’s net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Services provided by Productiv be subject to withholding tax by any government, Customer will reimburse Productiv for such withholding tax.
    3. Suspension of Service. If any charge owed by Customer (excluding amounts reasonably disputed in good faith) is thirty (30) days or more overdue, Productiv may, without limiting its other rights and remedies, suspend any Services until such amounts are paid in full, provided Productiv has given Customer ten (10) or more days’ prior notice, which may be provided to Customer’s designated billing contact via email, that its account is overdue.
    4. Fee Disputes. If Customer believes that Productiv has billed Customer incorrectly, Customer must contact Productiv no later than sixty (60) days after the closing date on the first invoice in which the error or problem appeared, in order to request an adjustment or credit. Inquiries should be directed to Productiv’s customer support department. Productiv will not exercise its rights under the “Suspension of Service” section above if Customer is disputing the applicable Fees reasonably and in good faith and is cooperating diligently to resolve the dispute. Unpaid invoices not being disputed reasonably and in good faith are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
    5. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by Productiv regarding future functionality or features.
    6. Publicity. The parties acknowledge and agree that the pricing and discounts extended hereunder are contingent on Productiv’s limited right to use Customer’s company name and logo for marketing or promotional purposes on Productiv’s website, LinkedIn and in public or private communications with existing or potential Productiv customers, which Customer hereby grants, subject to Customer’s standard trademark usage guidelines as provided to Productiv from time-to-time. Any additional promotional use of company’s name and logo will be mutually agreed upon by the parties.
  5. Term.
    1. Agreement Term. This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated (the “Term”). Services subscriptions commence on the start date specified in the applicable Order Form and continue for the Order Term specified therein. Except as otherwise specified in the applicable Order Form, all purchases will automatically renew for additional periods equal to the then-current Order Term, unless either party gives the other written notice of non-renewal (email permitted) at least thirty (30) days before the end of the relevant Order Term. The Fees during any automatic renewal term will be the same as the then-current fees, unless Productiv has provided notice at least thirty (30) days in advance of the end of the Order Term of a fee adjustment. Termination of this Agreement will terminate any and all Order Forms under this Agreement.
    2. Termination for Cause. Either party may terminate this Agreement effective after thirty (30) days’ notice if the other party materially breaches this Agreement and such breach is not cured within such notice period.
    3. Refund or Payment upon Termination for Cause. Upon any termination for cause by Customer, Productiv will refund Customer any prepaid fees covering the remainder of the Order Term of all subscriptions after the effective date of termination. Upon any termination for cause by Productiv, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Productiv for the period prior to the effective date of termination.
    4. Portability and Deletion. Customer may request deletion or export of Customer Data stored by Productiv. Following an Order Term, Productiv will have no obligation to maintain or provide any Customer Data, and upon Customer’s request or otherwise, Productiv will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession.
    5. Surviving Provisions. The sections titled “Fees,” “Proprietary Rights,” “Confidentiality,” “Mutual Representations, Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination for Cause,” “Portability and Deletion,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
  6. Proprietary Rights.
    1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Productiv owns and reserves all rights, title and interest in and to the Services and Documentation, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
    2. Limited License to Customer Data. Subject to the limited rights expressly granted hereunder, Customer owns all rights, title and interest in and to its Customer Data. Customer grants Productiv and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform and display Customer Data, and provide necessary access to third party service providers acting on its behalf, such as Amazon Web Services, to provide, maintain, and update the Services. Productiv may aggregate and de-identify Customer Data to generate and retain aggregate data about Productiv customers (“Aggregate Usage Data”). Productiv may use and disclose Aggregate Usage Data to develop and deliver Services or otherwise operate its business, provided that disclosure will not identify Customer, any Customer personnel or any Confidential Information (defined below) of Customer to any third party.
    3. Suggestions. If Customer or any Authorized User provides Productiv any feedback or suggestions regarding the Services or Evaluation Services, then Customer grants Productiv an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
  7. Confidentiality.
    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data, Confidential Information of Productiv shall include the Services and Documentation, and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as any non-public business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
    2. Protection of Confidential Information. The Receiving Party shall (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, its advisors or in confidence in connection with bona fide fundraising or M&A due diligence activities.
    3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the access or disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
  8. Representations, Warranties and Disclaimers.
    1. Mutual Representation. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
    2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES, DOCUMENTATION, SUPPORT AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PRODUCTIV EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PRODUCTIV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. PRODUCTIV MAKES NO WARRANTY REGARDING ANY NON-PRODUCTIV APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.
  9. Limitation of Liability.
    1. Limitation of Liability. EXCEPT FOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (“MUTUAL INDEMNIFICATION”), OR (II) DAMAGES ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES” SECTION ABOVE.
    2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    3. Scope of Limitation. The limitations hereunder apply with respect to all legal theories, whether in contract, tort or otherwise. The provisions of this ’Limitation of Liability’ section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
  10. Mutual Indemnification.
    1. Productiv Indemnification. Productiv shall defend Customer and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against a suit or proceeding by a third party alleging that the Services provided by Productiv hereunder, or use of such Services by Customer, violates, infringes or misappropriates a third party’s intellectual property right (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided, however, that Productiv shall have no liability under this Section 10(a) to the extent a Claim Against Customer arises from (i) Customer Data or Non-Productiv Products; (ii) Customer’s negligence, misconduct, or breach of this Agreement; (iii) any modification, combination or development of the Services that is not performed by Productiv, including in the use of any APIs; or (iv) the use of any version of software other than the most current release made available by Productiv.
    2. Customer Indemnification. Customer shall defend Productiv and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against a suit or proceeding by a third party alleging that Customer’s provision or use of Customer Data hereunder violates, infringes or misappropriates a third party right or applicable laws (each, a “Claim Against Productiv”), and shall indemnify Productiv for any damages, attorney fees and costs finally awarded against Productiv as a result of, or for any amounts paid by Productiv under a court-approved settlement of, a Claim Against Productiv; provided, however, that Customer shall have no liability under this Section 10(b) to the extent a Claim Against Productiv arises from Productiv’s breach of this Agreement.
    3. Indemnification Procedure. The indemnified party will provide the indemnifying party with prompt written notice of any claim, suit or demand, the right to assume the exclusive defense and control of any matter that is subject to indemnification, and cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter.
    4. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
  11. General Provisions.
    1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    3. Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to the parties at the address set forth in the preamble of this Agreement and will be deemed to have been duly given (a) when received, if personally delivered; (b) the first business day after sending by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
    4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
    5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph are those described in the “Termination for Cause” and “Refund or Payment upon Termination” sections of this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    7. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
    8. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
    9. Modifications. As Productiv’s business evolves, Productiv may update this Agreement and post the updated Agreement here (or a successor site). Productiv will provide Customer with reasonable notice prior to material changes taking effect, including by reference on an Order Form, via the Services or e-mail, or by posting the updated terms on our public website. Customer can review the most current version of the Agreement at any time by visiting the Productiv website. The revised Agreement will become effective upon posting of the change. If Customer accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
    10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning Customer’s purchase and use of the Services. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in or accepted by Productiv during a vendor onboarding process or web portal, a Customer purchase order, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

 

Schedule A
Productiv Security Practices

Information Security Team
An internal Productiv group is responsible for enforcing the information and operational security policies, including those in this Schedule. This group currently consists of the CTO, Head of Security, engineers and other security personnel. The team may be contacted at infosec@productiv.com.

Infrastructure
Services are operated on a multitenant architecture that is designed to segregate and restrict access to the Customer Data made available via the Services. Productiv uses infrastructure provided by Amazon Web Services, Inc. (“AWS”) to host and process Customer Data. Information about security provided by AWS is available from the AWS Security website. Information about security and privacy-related audits and certifications received by AWS, including information on ISO 27001 certification and SOC reports, is available from the AWS Compliance website.

Security Controls
Productiv will implement and maintain appropriate technical and organizational measures designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, and unauthorized disclosure of or access to Customer Data processed or transmitted through the Services. Security controls include the following:

  • Encryption: The Services use TLS 1.2 and AES-256 encryption to protect Customer Data (1) during transmissions between a customer’s network and the Services; and (2) when at rest.
  • Access Controls: Productiv maintains strict access controls for its website, APIs, and backend data stores. Productiv source-code utilizes GitHub and Customer Data is primarily processed from AWS. For each of these Services, we require manager approval before Productiv personnel are granted access to these systems, have multiple levels of access starting with read-only access to limited sections, and only grant the minimum level of access required. Productiv performs recurring audits of users with access to these systems, and their levels of access. Productiv utilizes single sign-on to enforce 2-factor authentication, strong password requirements, and automatic password-expiry for all of these services.
  • Threat Detection: Productiv has set up tools for automated threat detection. This includes both internal and external vulnerability scans for networks and systems. We perform annual penetration testing from an independent / third party on our external network, internal network and applications.

Product Security
Productiv supports the capability to set up SAML-based authentication for access to the Services. The Services support different roles that allow different levels of access to different aspects of the platform, including controls on financial data, specific apps, or user management.

Audits
The Services undergo security assessments by internal personnel and external security firms who perform regular audits to verify that our security practices are sound and to monitor the Services for new vulnerabilities discovered by the security research community. Confidential SOC 2 reports are available to customers and prospects upon request under non-disclosure agreement.

Incident Management
Productiv will maintain incident management policies and procedures designed to promptly investigate, identify, and remediate unauthorized disclosure of Customer Data. In the event of any confirmed or reasonably suspected unauthorized disclosure of Customer Data resulting from a breach of Productiv’s security obligations, Productiv will promptly notify Customer. Upon request from a Customer, Productiv will communicate the status and post-mortem details of such an incident.

Backup and Disaster Recovery
The Services are built with redundancy and availability in mind. All Customer Data stored in AWS is replicated for high availability. All production and backup services are hosted within the continental United States. The primary AWS region is set to us-west-2 (Oregon) and Productiv utilizes us-east-1 (N. Virginia) for backup. The Services run physically separated and isolated availability zones connected through low-latency links. Each availability zone comprises one or more discrete data centers, each with redundant power, networking, and connectivity, housed in separate facilities. Productiv has configured systems in AWS in a way that disaster-recovery – for datacenter and availability zone failures – is automatic and no human intervention is needed. In the event of a complete failure in the us-west-2 region, Productiv has processes and procedures in place to implement a failover to us-east-1. Failover testing is performed twice per year to help ensure Productiv is prepared in the event of a scenario requiring failover.

Data Deletion
Customer may request deletion of Customer Data at any time by emailing support@productiv.com. Productiv deletes Customer Data from the primary AWS datastores and backups within 60 business days of request and supplies notification of completion via email. Aggregate Usage Data does not constitute Customer Data and will be maintained in accordance with Productiv’s data retention practices.

Personnel Practices
All employees with access to technical resources are required to complete security training. When an employee’s work relationship with Productiv is ending or ends, Productiv’s operations team revokes access to any proprietary technical systems.

DATA PROCESSING ADDENDUM

This Data Processing Addendum (the “DPA”) forms part of the online Master Subscription Agreement available at https://productiv.com/terms-of-service/ (the “Agreement”) between Productiv, Inc. (“Productiv”) and the party identified as “Customer” in the Agreement and reflects the parties’ agreement with respect to the Processing of Personal Data (defined below) by Productiv on behalf of Customer in connection with the Services under the Agreement. In the case of any conflict or inconsistency with the terms of the Agreement, the terms of this DPA will supersede and control with respect to the Processing of Personal Data. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations (defined below), in the name and on behalf of its Authorized Affiliates, if and to the extent Productiv processes Personal Data for which such Authorized Affiliates qualify as the Controller (defined below). 

DATA PROCESSING TERMS

  1. Definitions.
    1. Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations, and (b) is permitted to use the Services pursuant to the Agreement.
    2. “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.
    3. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
    4. “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. 
    5. “Data Subject” means the identified or identifiable person to whom Personal Data relates. 
    6. Europe” means the European Union, the EEA, Switzerland and the United Kingdom.  
    7. 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), including as implemented or adopted under the laws of the United Kingdom.
    8. “Personal Data” means any information relating to an identified or identifiable natural person where such data is Customer Data. 
    9. “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.
    10. “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. 
    11. Public Authority” means a government agency or law enforcement authority, including judicial authorities.
    12. “Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by EC Commission Implementing Decision of 4 June 2021, as currently set out at http://data.europa.eu/eli/dec_impl/2021/914/oj.
    13.  “Sub-processor” means any Processor engaged by Productiv or an Affiliate of Productiv engaged in the Processing of Personal Data.
  2. Processing of Personal Data.
    1. Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is a Controller or a Processor, and Productiv is a Processor. 
    2. Customer’s Processing of Personal Data. Customer shall use the Services to Process Personal Data in accordance with the applicable requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. 
    3. Productiv’s Processing of Personal Data. Productiv shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Authorized Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. 
    4. Details of the Processing. The subject-matter of Processing of Personal Data by Productiv 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 3 (Description of Processing/Transfer) to this DPA.
  3. Rights of Data Subjects. Productiv shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or request it has received from a Data Subject such as a Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request”. Productiv shall not respond to a Data Subject Request itself, except that Customer authorizes Productiv to redirect the Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Productiv shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Productiv shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Productiv 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, Customer shall be responsible for any costs arising from Productiv’s provision of such assistance.
  4. Productiv Personnel.
    1. Confidentiality. Productiv 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. Productiv shall ensure that such confidentiality obligations survive the termination of the personnel engagement. 
    2. Reliability. Productiv shall take commercially reasonable steps to ensure the reliability of any Productiv personnel engaged in the Processing of Personal Data. 
    3. Limitation of Access. Productiv shall ensure that Productiv’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
  5. Sub-processors
    1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Productiv’s Affiliates may be retained as Sub-processors; and (b) Productiv and Productiv’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Prior to providing any access to Personal Data, Productiv or a Productiv Affiliate has entered into a written agreement with each Sub-processor containing, in substance, data protection obligations no less protective than those in the Agreement with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor. 
    2. Current List of Authorized Sub-processors and Notification of New Sub-processors. The current list of authorized Sub-processors that may be engaged in Processing Personal Data, including a description of their authorized processing activities and countries of location, is listed in Schedule 1 (Current List of Sub-processors). Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. Customer can send an email at support@productiv.com to subscribe to notifications of new Sub-processors, and if Customer subscribes, Productiv shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services. 
    3. Objection Right for New Sub-processors. Customer may object to Productiv’s use of a new Sub-processor by notifying Productiv promptly in writing within thirty (30) days of receipt of Productiv’s notice in accordance with the mechanism set out in section 5(b). If Customer objects to a new Sub-processor as permitted in the preceding sentence, Productiv will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer. If Productiv is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Customer may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by Productiv without the use of the objected-to new Sub-processor by providing written notice to Productiv. Productiv will refund Customer 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 Customer. 
    4. Liability. Productiv shall be liable for the acts and omissions of its Sub-processors to the same extent Productiv would be liable if performing the services of each Sub-processor directly under the terms of this DPA, unless otherwise set forth in the Agreement.
  6. Audit. 
    1. Third-Party Certifications and Audits. Productiv has obtained the third-party certifications and audits set forth in the Agreement for each applicable Service. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Productiv shall make available to Customer (or Customer’s Third-Party Auditor, defined below) information regarding Productiv’s compliance with the obligations set forth in this DPA in the form of a copy of Productiv’s then most recent third-party audits or certifications set forth in the Agreement. Such third-party audits or certifications may also be shared with Customer’s competent supervisory authority on its request. Where Productiv has obtained SOC2 Information Security Management System reports for a particular Service, Productiv agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Order Term. 
    2. On-Site Audit. Customer may contact Productiv to request an on-site audit of Productiv’s Processing activities covered by this DPA (an “On-Site Audit”). An On-Site Audit may be conducted by Customer either itself or through a Third-Party Auditor selected by Customer when: (i) the information available pursuant to section “Third-Party Certifications and Audits” is not sufficient to demonstrate compliance with the obligations set out in this DPA and its Schedules; (ii) Customer has received a notice from Productiv of a Customer Data Incident (defined below); or (iii) such an audit is required by Data Protection Laws and Regulations or by Customer’s competent supervisory authority. Any On-Site Audits will be limited to Customer Data Processing and storage facilities directly operated by Productiv or any of Productiv’s Affiliates. Customer acknowledges that Productiv operates a multi-tenant cloud environment. Accordingly, Productiv shall have the right to reasonably adapt the scope of any On-Site Audit to avoid or mitigate risks with respect to confidentiality of other Productiv customers’ information. 
    3. Reasonable Exercise of Rights. An On-Site Audit shall be conducted by Customer or its Third-Party Auditor: (i) acting reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Services used by Customer; (ii) up to one time per year with at least three weeks’ advance written notice. If an emergency justifies a shorter notice period, Productiv will use good faith efforts to accommodate the On-Site Audit request; and (iii) during Productiv’s normal business hours, under reasonable duration and shall not unreasonably interfere with Productiv’s day-to-day operations. Before any On-Site Audit commences, Customer and Productiv shall mutually agree upon the scope, timing, and duration of the audit. 
    4. Third-Party Auditor. A “Third Party Auditor” means a third-party independent contractor that is not a competitor of Productiv. An On-Site Audit can be conducted through a Third Party Auditor if: (i) prior to the On-Site Audit, the Third Party Auditor enters into a non-disclosure agreement containing confidentiality provisions no less protective than those set forth in the Agreement to protect Productiv’s proprietary information; and (ii) the costs of the Third Party Auditor are at Customer’s expense. 
    5. Findings. Customer must promptly provide Productiv with information regarding any non-compliance discovered during the course of an On-Site Audit. 
    6. Data Protection Impact Assessment. Upon Customer’s request, Productiv shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Productiv.
  7. Customer Data Incident Management and Notification. Productiv maintains security incident management policies and procedures and shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by Productiv or its Sub-processors (a “Customer Data Incident”). Productiv shall make reasonable efforts to identify the cause of such Customer Data Incident and take such steps as Productiv deems necessary and reasonable to remediate the cause of such a Customer Data Incident to the extent the remediation is within Productiv’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Authorized Users.
  8. Government Access Requests. In its role as a Processor, Productiv shall maintain appropriate measures to protect Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including by implementing appropriate technical and organizational safeguards to protect Personal Data against any interference that goes beyond what is necessary in a democratic society to safeguard national security, defense and public security. If Productiv receives a legally binding request to access Personal Data from a Public Authority, Productiv shall, unless otherwise legally prohibited, promptly notify Customer including a summary of the nature of the request. To the extent Productiv is prohibited by law from providing such notification, Productiv shall use commercially reasonable efforts to obtain a waiver of the prohibition to enable Productiv to communicate as much information as possible, as soon as possible. Further, Productiv shall challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful. Notwithstanding the above, (a) Customer acknowledges that such challenge may not always be reasonable or possible in light of the nature, scope, context and purposes of the intended government authority access, and (b) this DPA shall not require Productiv to pursue action or inaction that could result in civil or criminal penalty for Productiv such as contempt of court. In the event Productiv does not or cannot challenge the request, Productiv shall notify Customer, as soon as possible, following the access by the government authority, and provide Customer with relevant details of the same, unless and to the extent legally prohibited to do so.
  9. Return and Deletion of Customer Data. Productiv shall return or delete Personal Data in accordance with the procedures and timeframes specified in the Agreement. Until Personal Data is deleted or returned, Productiv shall continue to comply with this DPA and its Schedules.
  10. Authorized Affiliates.
    1. Contractual Relationship. The parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller.” 
    2. Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Productiv under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates. 
    3. Rights of Authorized Affiliates. Where Customer enters into this DPA on behalf of an Authorized Affiliate, such Authorized Affiliate 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: 
      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 Productiv directly by itself, the parties agree that (x) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (y) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA, not separately for each Authorized Affiliate individually, but in a combined manner for itself and all of its Authorized Affiliates together. 
      2. The parties agree that the Customer 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 Productiv 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.
  11. 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, 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.
  12. Europe-Specific Provisions.
    1. Definitions. For the purposes of this section 12 and Schedule 2, these terms shall be defined as follows: 
      1. “EU C-to-P Transfer Clauses” means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Two (Controller-to-Processor). 
      2. “EU P-to-P Transfer Clauses” means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Three (Processor-to-Processor). 
    2. GDPR. Productiv will Process Personal Data in accordance with the GDPR requirements applicable to Productiv’s provision of its Services. 
    3. Customer Instructions. Productiv shall inform Customer immediately (i) if, in its opinion, an instruction from Customer constitutes a breach of the GDPR and/or (ii) if Productiv is unable to follow Customer’s instructions for the Processing of Personal Data. 
    4. Transfer mechanisms for data transfers. If, in the performance of the Services, Personal Data that is subject to the GDPR or any other law relating to the protection or privacy of individuals that applies in Europe is transferred out of Europe to countries which do not ensure an adequate level of data protection within the meaning of the Data Protection Laws and Regulations of Europe, the transfer mechanisms listed below shall apply to such transfers. Such mechanisms are hereby incorporated into this DPA and can be directly enforced by the Parties to the extent such transfers are subject to the Data Protection Laws and Regulations of Europe: 
      1. The EU C-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Controller and a data exporter of Personal Data and Productiv is a Processor and data importer in respect of that Personal Data, then the Parties shall comply with the EU C-to-P Transfer Clauses, subject to the additional terms in section 1 of Schedule 2; and/or 
      2. The EU P-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Processor acting on behalf of a Controller and a data exporter of Personal Data and Productiv is a Processor and data importer in respect of that Personal Data, the Parties shall comply with the terms of the EU P-to-P Transfer Clauses, subject to the additional terms in sections 1 and 2 of Schedule 2. 
    5. Impact of local laws. As of the Effective Date, Productiv has no reason to believe that the laws and practices in any third country of destination applicable to its Processing of Personal Data, including any requirements to disclose Personal Data or measures authorising access by a Public Authority, prevent Productiv from fulfilling its obligations under this DPA. If Productiv reasonably believes that any existing or future enacted or enforceable laws and practices in the third country of destination applicable to its Processing of the Personal Data (“Local Laws”) prevent it from fulfilling its obligations under this DPA, it shall promptly notify Customer. In such a case, Productiv shall use reasonable efforts to make available to the affected Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to facilitate compliance with the Local Laws without unreasonably burdening Customer. If Productiv is unable to make available such change promptly, Customer may terminate the applicable Order Form(s) and suspend the transfer of Personal Data in respect only to those Services which cannot be provided by Productiv in accordance with the Local Laws by providing written notice in accordance with the “Notices” section of the Agreement. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination for such terminated Services.

List of Schedules
Schedule 1: Current List of Authorized Sub-processors
Schedule 2: Transfer Mechanisms for European Data Transfers
Schedule 3: Description of Processing/Transfer

 

Schedule 1 

Current List of Authorized Sub-processors

Entity Name Sub-processing Activities

Corporate Location

 

Amplitude, Inc. Product analytics

United States

 

Amazon Web Services, Inc. Infrastructure 

United States

 

Google LLC Collaboration 

United States

 

Segment.io, Inc. Product analytics

United States

 

Atlassian, Inc. Product development and Internal knowledge base

United States

 

Salesforce, Inc. Customer relationship management platform

United States

 

Slack Technologies LLC Collaboration 

United States

 

Gainsight

Customer success platform, and self-service platform

 

United States
Zendesk, Inc. Customer service platform and Customer knowledge base United States
Okta, Inc. Authentication services United States

Productiv Affiliate Sub-processors

Depending on the geographic location of a Customer or their Authorized Users, and the nature of the Services provided, Productiv may also engage one or more of its Affiliates as Sub-processors to deliver some or all of the Services provided to a Customer. The following entities are currently Affiliates of Productiv that may be engaged as Sub-processors to Process Personal Data. 

Entity Name Location
Productiv India India

 

Schedule 2

Transfer Mechanisms for European Data Transfers 

  1. Standard Contractual Clauses Operative Provisions and Additional Terms

For the purposes of the EU C-to-P Transfer Clauses and the EU P-to-P Transfer Clauses, Customer is the data exporter and Productiv is the data importer and the parties agree to the following. Where this Schedule 2 does not explicitly mention EU C-to-P Transfer Clauses or EU P-to-P Transfer Clauses it applies to both of them.

  1. Reference to the Standard Contractual Clauses. The relevant provisions contained in the Standard Contractual Clauses are incorporated by reference and are an integral part of this DPA. The information required for the purposes of the Appendix to the Standard Contractual Clauses are set out in Schedule 3. 
  2. Docking clause. The option under clause 7 shall not apply. 
  3. Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions as of the Effective Date of the Agreement. Any additional or alternate instructions must be consistent with the terms of this DPA and the Agreement. For the purposes of clause 8.1(a), the instructions by Customer to Process Personal Data are set out in section 2(c) of this DPA and include onward transfers to a third party located outside Europe for the purpose of the performance of the Services. 
  4. Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in clause 8.5 and 16(d) of the Standard Contractual Clauses shall be provided by Productiv to Customer only upon Customer’s written request. 
  5. Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the technical and organisational measures set forth in the Agreement meets Customer’s requirements and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of its Personal Data as well as the risks to individuals) the security measures and policies implemented and maintained by Productiv provide a level of security appropriate to the risk with respect to its Personal Data. For the purposes of clause 8.6(c), personal data breaches will be handled in accordance with section 7 (Customer Data Incident Management and Notification) of this DPA. 
  6. Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with section 6(b) of this DPA. 
  7. General authorisation for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Productiv has Customer’s general authorisation to engage Sub-processors in accordance with section 5 of this DPA. Productiv shall make available to Customer the current list of Sub-processors in accordance with section 5(b) of this DPA. Where Productiv enters into the EU P-to-P Transfer Clauses with a Sub-processor in connection with the provision of the Services, Customer hereby grants Productiv and Productiv’s Affiliates authority to provide a general authorisation on Controller’s behalf for the engagement of sub-processors by Sub-processors engaged in the provision of the Services, as well as decision making and approval authority for the addition or replacement of any such sub-processors. 
  8. Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Productiv may engage new Sub-processors as described in sections 5(b) and 5(c) of this DPA. Productiv shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5(b) of this DPA. For the purposes of clause 11, and subject to section 3 of this DPA, Productiv shall inform data subjects on its website of a contact point authorised to handle complaints. Productiv shall inform Customer if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data and shall without undue delay communicate the complaint or dispute to Customer. Productiv shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer). The option under clause 11 shall not apply. 
  9. Liability. Productiv’s liability under clause 12(b) shall be limited to any damage caused by its Processing where Productiv has not complied with its obligations under the GDPR specifically directed to Processors, or where it has acted outside of or contrary to lawful instructions of Customer, as specified in Article 82 GDPR. 
  10. Supervision. Clause 13 shall apply as follows: 
    1. Where Customer is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by Customer with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. 
    2. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority. 
    3. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the Data Protection Commission, 21 Fitzwilliam Square, Dublin 2, D02 RD28, Ireland, shall act as competent supervisory authority. 
    4. Where Customer is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner’s Office shall act as competent supervisory authority. 
    5. Where Customer is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.
  11. Notification of Government Access Requests. For the purposes of clause 15(1)(a), Productiv shall notify Customer and not the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying the Data Subject as necessary. 
  12. Governing Law. These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland. Where required by the laws of the United Kingdom in respect of transfers from that jurisdiction, the laws of England and Wales shall govern the Clauses.
  13. Choice of forum and jurisdiction. The courts under clause 18 shall be those designated in the Venue section of the Agreement. If the Agreement does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this DPA, the parties agree that the courts of Ireland shall have exclusive jurisdiction. Where required by the laws of the United Kingdom in respect of transfers from that jurisdiction, the courts of England and Wales, shall have jurisdiction to resolve any dispute arising from the Clauses.
  14. Appendix. The Appendix shall be completed as follows:
    1. The contents of section 1 of Schedule 3 shall form Annex I.A to the Standard Contractual Clauses
    2. The contents of sections 2 to 9 of Schedule 3 shall form Annex I.B to the Standard Contractual Clauses 
    3. The contents of section 10 of Schedule 3 shall form Annex I.C to the Standard Contractual Clauses 
    4. The contents of section 11 of Schedule 3 shall form Annex II to the Standard Contractual Clauses.
  15. Data Exports from the United Kingdom and Switzerland under the Standard Contractual Clauses. In case of any transfers of Personal Data from the United Kingdom and/or transfers of Personal Data from Switzerland subject exclusively to the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws”), (i) general and specific references in the Standard Contractual Clauses to GDPR or EU or Member State Law shall have the same meaning as the equivalent reference in the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws”) or Swiss Data Protection Laws, as applicable; and (ii) any other obligation in the Standard Contractual Clauses determined by the Member State in which the data exporter or Data Subject is established shall refer to an obligation under UK Data Protection Laws or Swiss Data Protection Laws, as applicable. In respect of data transfers governed by Swiss Data Protection Laws, the Standard Contractual Clauses also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity. 
  16. Conflict. The Standard Contractual Clauses are subject to this DPA and the additional safeguards set out hereunder. The rights and obligations afforded by the Standard Contractual Clauses will be exercised in accordance with this DPA, unless stated otherwise. In the event of any conflict or inconsistency between the body of this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail. 
  1. Additional Terms for the EU P-to-P Transfer Clauses. For the purposes of the EU P-to-P Transfer Clauses (only), the Parties agree the following. 
    1. Instructions and notifications. For the purposes of clause 8.1(a), Customer hereby informs Productiv that it acts as Processor under the instructions of the relevant Controller in respect of Personal Data. Customer warrants that its Processing instructions as set out in the Agreement and this DPA, including its authorizations to Productiv for the appointment of Sub-processors in accordance with this DPA, have been authorized by the relevant Controller. Customer shall be solely responsible for forwarding any notifications received from Productiv to the relevant Controller where appropriate. 
    2. Security of Processing. For the purposes of clause 8.6(c) and (d), Productiv shall provide notification of a personal data breach concerning Personal Data Processed by Productiv to Customer. 
    3. Documentation and Compliance. For the purposes of clause 8.9, all enquiries from the relevant Controller shall be provided to Productiv by Customer. If Productiv receives an enquiry directly from a Controller, it shall forward the enquiry to Customer and Customer shall be solely responsible for responding to any such enquiry from the relevant Controller where appropriate. 
    4. Data Subject Rights. For the purposes of clause 10 and subject to section 3 of this DPA, Productiv shall notify Customer about any request it has received directly from a Data Subject without obligation to handle it (unless otherwise agreed), but shall not notify the relevant Controller. Customer shall be solely responsible for cooperating with the relevant Controller in fulfilling the relevant obligations to respond to any such request.

 

Schedule 3

Description of Processing/Transfer

  1. List of Parties.
    Data exporter(s):

    Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European UnionName: Customer and its Authorized Affiliates.Address: Set forth in the Agreement, including any Order FormsContact person’s name, position and contact details: Set forth in the Agreement, including any Order Forms

    Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement and as further described in the Documentation.
    Role: For the purposes of the EU C-to-P Transfer Clauses Customer and/or its Authorized Affiliate is a Controller. For the purposes of the EU P-to-P Transfer Clauses Customer and/or its Authorized Affiliate is a Processor.

    Data importer(s):

    Identity and contact details of the data importer(s), including any contact person with responsibility for data protection

    Name: Productiv, Inc.

    Address: 325 Forest Ave., Palo Alto, CA 94301

    Contact person’s name, position and contact details: Adam Turkel, General Counsel,  privacy@productiv.com

    Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement and as further described in the Documentation.

  2. Categories of Data Subjects Whose Personal Data is Transferred. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:Employees, agents, advisors, and freelancers of Customer (who are natural persons)
  3. Categories of personal data transferred. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer 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. SaaS application usage
  4. Sensitive data transferred (if applicable).
    Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:The parties do not anticipate the transfer of special categories of data.
  5. Frequency of the Transfer. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous basis depending on the use of the Services by Customer.
  6. Nature of the Processing. The nature of the Processing is the performance of the Services pursuant to the Agreement.
  7. Purpose of the Processing, the Data Transfer and Further Processing. Productiv will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
  8. Duration of Processing.
    The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:Subject to section 9 of the DPA, Productiv will Process Personal Data for the duration specified in the Agreement, unless otherwise agreed upon in writing.
  9. Sub-processor Transfers. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:The Sub-processors, their activities and locations are set out in Schedule 1 or as otherwise notified to Customer.As per section 7 above, the Sub-processors will Process Personal Data as necessary to perform the Services pursuant to the Agreement. Subject to section 9 of this DPA, the Sub-processors will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
  10. Competent Supervisory Authority.
    Identify the competent supervisory authority/ies in accordance with clause 13:

    1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. 
    2. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as the competent supervisory authority. 
    3. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: the Data Protection Commission, 21 Fitzwilliam Square, Dublin 2, D02 RD28, Ireland, shall act as competent supervisory authority. 
    4. Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner’s Office shall act as the competent supervisory authority. 
    5. Where the data exporter is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.
  11. Technical and Organizational Measures. Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Agreement. Data Importer will not materially decrease the overall security of the Services during an Order Term. Data Subject Requests shall be handled in accordance with section 3 of the DPA.

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