End User License Agreement (EULA)

1.1     The Licensee use of the Service is subject to the following EULA (which, together with all documents incorporated by reference form the Licence). The Licensee agrees to be bound by the Licence and the Licensee will continue to be bound by the Licence for the Term or until the Service is terminated in accordance with this EULA. Some clauses may continue to apply after the termination of this EULA.

1.2     Subject to clause 10 (Suspension and Termination) and the Licensee using the Service in accordance with this EULA, including any Restrictions, Redstor grant the Licensee a non-exclusive, non-transferable right to use  the Service.

1.3     The Term for the Service shall start on the Commencement Date and shall continue thereafter, unless and until terminated in accordance with this EULA.

1.4     Annex A sets out further defined terms used in this EULA and not defined in the text.

1.5     Redstor may amend this EULA at any time by posting the relevant amended and restated terms at www.redstor.com/end-user-licence-agreement and notifying the Licensee by email or via the Service. Acceptance of the amended terms will be implied by the Licensee continued use of the Services. By continuing to use the Service, the Licensee agrees that the amended terms shall apply. In the event that the Licensee does not accept the change in the EULA, the Licensee must terminate this Licence within thirty days of the date of the written notice notifying the Licensee of such changes (and failure to do so shall constitute acceptance of the Services on the amended terms).

2. SUPPLY OF THE SERVICE

2.1     Redstor will use reasonable endeavours to maintain the availability of the Service in accordance with this Licence. Redstor does not guarantee that the Service will always be available, uninterrupted or fault-free.

2.2     Redstor shall have the right to make any changes to the Service which are necessary to comply with any applicable law, security or safety requirements, and shall notify the Licensee in writing of such changes, where possible giving not less than 30 days’ notice of such changes. Redstor shall also have the right to make any change which does not have a material adverse effect or materially negative impact on the functionality of the Service.

2.3     If Redstor makes material adverse changes to the Service Redstor will notify the Licensee in writing and the Licensee shall have 30 (thirty) days from the date of notification to refuse the changes to the Service by notifying Redstor in writing [email protected] that the Licensee will discontinue the use of the Service and terminate the contract. Failure to notify Redstor in writing to [email protected] within thirty (30) days from the date of notification shall constitute your implied acceptance of the change to the Service.

2.4     The Service is intended for business use by businesses resident and operating in the Territory. Redstor does not represent that content available on or through the Service is appropriate or available in other locations. Redstor may block the availability of the Service or any service or product described as part of the Service to any person or geographic area at any time. If the Licensee choosed to access the Service from outside the Territory, they do so at their own risk.

2.5     The Services are licensed subject to the Restrictions, solely for internal business use by the Licensee. All other uses (including but not limited to sub-licensing, resale or the provision of a managed service to third parties) are expressly excluded from this Licence.

2.6     Each Party warrants and undertakes that:

2.6.1     it has full capacity and authority to enter into and to perform their obligations under this EULA;

2.6.2     it shall not make any untrue, misleading, false or derogatory statements concerning the other Party or any affiliate of that other Party, nor any statements which are inconsistent with or detrimental to the goodwill, name, reputation or image of the other Party or any affiliate of that other Party;

2.6.3     this EULA is executed by a duly authorised representative of that Party;

2.6.4     it shall obtain and comply with all consents necessary to perform its obligations under this EULA;

2.6.5     it shall comply with all laws and regulations; and

2.6.6     it shall use current anti-virus software to prevent introducing by any means any viruses, to the Service or to any other system that disrupts, corrupts or damages the Service.

3. The Licensee use of the Service

3.1     Redstor shall use reasonable endeavours to perform Redstor’s obligations under the Licence:

3.1.1     within a reasonable period of time;

3.1.2     safely, with all reasonable care and skill and in accordance with good industry practice and standards;

3.1.3   so as to ensure that the Service is free from defects or errors, other than those resulting from any unauthorised material modification or misuse of the Service.

3.2   In relation to the use of the Service by the Licensee, the Licensee undertakes that:

3.2.1   the Licensee will not allow the Service to be used by anyone other than Authorised Users;

3.2.2   each Authorised User shall keep a secure password for their sole use of the Service;

3.2.3   neither the Licensee nor the Authorised Users shall at any time access, store, distribute or transmit any material via the Service:

(a)   that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)   that facilitates illegal activity;

(c)   that depicts sexually explicit images;

(d)   that promotes unlawful violence;

(e)    that is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f)    in a manner that is otherwise illegal or causes damage or injury to any person or property;

3.2.4   The Licensee is also responsible for ensuring that all persons including but not limited to Authorised Users, who access the Service on the Licensee behalf are aware of this EULA, and that they comply with them and with any terms of use provided to them when they register for a User account.

3.2.5   The Licensee shall indemnify Redstor in relation to any loss or damage Redstor suffers as a result of the Licensee, or the Licensee Authorised users’, failure to comply with the provisions of this clause and, in any event, Redstor reserve the right, without liability or prejudice to Redstor’s other rights, to suspend the Service for breach of clause 3.3.

3.2.6   Neither the Licensee nor any of the Licensee Authorised Users shall:

(a)   except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:

(i)   and except to the extent expressly permitted under this Licence, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means; or

(ii)   attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service;

(b)   access all or any part of the Service in order to build a product or service which competes with the Service; or

(c)   use the Service to provide services to third parties which are not consistent with this Licence; or

(d)   license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorised Users; or

(e)   attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this EULA.

3.2.7   the Licensee shall use best endeavours to prevent any unauthorised access to, or use of the Service and, in the event of any such unauthorised access or use, promptly notify us.

3.3   The rights provided under this Licence are granted to the Licensee and the Licensee Authorised Users only.

4. The Licensee obligations

4.1   The Licensee shall, and the Licensee shall procure that Authorised Users shall:

4.1.1   make all provisions (and pay all costs) required to access the Service and maintain the requisite local network internet access and means of updating inventory and other content on the Service including integrating the Service in Licensee’s existing systems;

4.1.2   co-operate with us in all matters relating to use of the Service;

4.1.3   provide us with such information and materials as Redstor may reasonably require, including but not limited to the Licensee details relating to the Licensee Authorised Users, in order to supply the Service, and ensure that such information is accurate;

4.1.4   obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Licensee use of the Service starts; and

4.1.5   be solely responsible for procuring and maintaining the Licensee network connections and telecommunications links from the Licensee systems to the data centre(s) where the Service is hosted; and

4.1.6   be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Licensee network connections or telecommunications links or caused by the internet.

4.2   If Redstor’s performance of any of Redstor’s obligations under this Licence is prevented or delayed by any act or omission of the Licensees, the Licensee Authorised Users or failure by the Licensee or the Licensee Authorised Users to perform any relevant obligation (“Default”):

4.2.1   Redstor shall without limiting Redstor’s other rights or remedies have the right to suspend performance of the Service until the Licensee remedies the Default and notifies Redstor in writing to [email protected] and to rely on the Default to relieve Redstor from the performance of any of Redstor’s obligations to the extent the Default prevents or delays Redstor’s performance of any of Redstor’s obligations;

4.2.2   Redstor shall not be liable for any costs, loss or damage sustained or incurred by the Licensee arising directly or indirectly from Redstor’s failure or delay to perform any of Redstor’s obligations as a result of the Licensee or any of the Licensee Authorised Users’ Default.

5. User content

5.1   Redstor does not (and is not required to) endorse, monitor, verify or validate content on the Service. The Licensee agree that the Licensee and the Licensee Authorised Users will be responsible for uploading the Licensee content onto the Service and that User content may contain errors and inaccuracies, and may be incomplete or out of date, and the Licensee agrees to exercise the Licensee’s own discretion in deciding the extent to which the Licensee will verify such information before acting or relying on it. The Licensee agrees that User content is made available on the Service without any guarantee, condition, representation or warranty of any kind, express or implied, and the Licensee agrees that Redstor shall be not be liable for any errors or inaccuracies in, or lack of completeness or currency of, User content.

5.2   Notwithstanding the above, Redstor reserves Redstor’s right (but does not have the obligation) to remove, edit or moderate User content.

5.3   The Licensee agrees to indemnify and hold Redstor harmless against any claims or actions brought by third parties alleging that User content posted or published by the Licensee or the Licensee Authorised Users infringes their Intellectual Property Rights, or their right to privacy, or is in breach of confidentiality.

5.4   The Licensee agrees that Redstor may use the User content posted by the Licensee or Authorised Users onto the Service in the course of making the Service available to the Licensee and providing access to Users.

6. Intellectual property rights

6.1   All Service and algorithms used in connection with the Service are Redstor’s property or that of Redstor’s third party Service suppliers and are protected by copyright laws. Any Service logos and trade marks shown on the Service are trademarks, service marks and/or trading names of Redstor’s, and are protected by applicable intellectual property legislation.

6.2   The Licensee grants to Redstor the right to include the Licensee trade marks, service marks and/or corporate name or logo within the Service and in Redstor’s own marketing materials as a Licensee registered to use the Service.

6.3   Each Party agrees that civil and criminal penalties may be incurred in the event of any infringement of the copyright and/or other rights in relation to the Service or its contents and that any such infringement by a Party may result in incalculable damage and/or loss to the other Party and accordingly the infringing Party agrees that, in addition to any other right or remedy of the other Party, that other Party shall be entitled to seek immediate injunctive relief to restrain any actual or apprehended infringement thereof and the infringing Party undertakes to indemnify the other Party in accordance with clause 8.1 or 8.2, as relevant.

7. Data and privacy

7.1   By using the Service, the Licensee and/or the Licensee Authorised Users will place information on to the Service. Some of that information will be accessible to third parties and the Licensee agree that in placing information on to the Service that information, or that information in conjunction with other information, regarding individuals may constitute personal data identifying living individuals for the purposes of the Data Protection Legislation (“Personal Data”).

7.2   The Licensee agrees that the collection and use of the Licensee and/or the Licensee Authorised Users’ information and/or any related Personal Data to enable Redstor’s delivery of the Service (including services provided by Redstor’s service provider where they act as a Data Processor on Redstor’s behalf) will be governed by Redstor’s Privacy Policy, which forms part of this Licence by incorporation and which may be found at www.redstor.com/privacy-policy/. Redstor processes Personal Data in the manner set out in the Privacy Policy and as further set out in this Licence.

7.3   The Licensee shall (and shall ensure that the Licensee Authorised Users shall) comply at all times with the requirements of Data Protection Legislation with regard to the processing of Personal Data.

7.4   The Licensee shall ensure that the Licensee Authorised Users are made aware of and comply with this clause 7 and are made aware of and understand the terms of the Privacy Policy prior to using the Service. The Licensee confirm that the Licensee and the Licensee Authorised Users have a lawful basis for sharing any relevant Personal Data with Redstor for the purposes set out in the Privacy Policy and that, accordingly, Redstor may receive and use User content, any Personal Data submitted by the Licensee or the Licensee Authorised Users for the purpose of delivering the functionality of the Service to the Licensee, to Authorised Users and to Users, in accordance with the Privacy Policy.

7.5   The Licensee agrees that the Licensee is responsible for retaining Personal Data on the Licensee’s own account as Data Controller for the Licensee own records after a transaction has been completed following an order being fulfilled. Redstor shall delete Personal Data pertaining to an order and any archived order information from all IT systems in accordance with the Privacy Policy and Redstor’s other current policies.

7.6   Without prejudice to clause 7.4, each Party warrants that it has satisfied the fair and lawful processing requirements under the Data Protection Legislation with regard to handling data subjects’ Personal Data for which it is responsible, whether as Data Controller or Data Processor, insofar as it relates to the disclosure and/or processing of such Personal Data to the other Party for the purpose of the use or provision of the Service. This includes where the Licensee use any Personal Data relating to any Authorised User.

7.7   Redstor may create and use anonymised aggregated data analytics and market trends from the information and data on the Service.  Personal Data shall not be included in any data analytics.

7.8   The Licensee accepts and agrees that Redstor shall have no responsibility for the accuracy of any Personal Data or User content uploaded by the Licensee or the Licensee Authorised Users.

8. INDEMNITY

8.1   Redstor shall defend the Licensee, the Licensee officers, directors and employees against any third party claim that the Service infringes any third party intellectual property rights in the United Kingdom effective as of the Commencement Date, and Redstor shall indemnify the Licensee for any amounts awarded against the Licensee in judgment or settlement of such claims, provided that:

8.1.1   Redstor are given prompt notice of any such claim;

8.1.2   the Licensee provides reasonable co-operation to Redstor in the defence and settlement of such claim at Redstor’s reasonable expense; and

8.1.3   Redstor is given sole authority to defend or settle the claim.

8.2   The Licensee shall defend, indemnify and hold Redstor harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Licensee and/or the Licensee Authorised User’s use of the Service causing or giving rise to an assertion by a third party that their Intellectual Property Rights have been infringed, provided that:

8.2.1   Redstor give the Licensee prompt notice of any such claim;

8.2.2   Redstor provide reasonable co-operation to the Licensee in the defence and settlement of such claim at the Licensee expense; and

8.2.3   the Licensee is given sole authority to defend or settle the claim.

8.3   In the defence or settlement of any claim:

8.3.1   Redstor may procure the right for the Licensee to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on ten (10) Business Days’ notice to the Licensee without any additional liability or obligation to pay liquidated damages or other additional costs to the Licensee;

8.3.2   the Licensee may procure the right for Redstor to continue using the Licensee and/or User content on the Service, or replace or modify the Licensee and/or User content so that it becomes non-infringing.

8.4   In no event shall Redstor, Redstor’s employees, agents and sub-contractors be liable to the Licensee to the extent that the alleged infringement is based on:

8.4.1   a modification of the Service by anyone other than Redstor or Redstor’s third party contractors or agents; or

8.4.2   the Licensee or the Licensee Authorised Users’ use of the Service in a manner contrary to the instructions given by Redstor; or

8.4.3   the Licensee’s or the Licensee Authorised Users’ misuse of the Service, or any breach of Redstor’s obligations under the EULA arising as a result of shortcomings in the licensee’s security protocals or processes; or

8.4.4   the Licensee or the Licensee Authorised Users’ use of the Service after notice of the alleged or actual infringement from Redstor or any appropriate authority.

9. Limitation of liability

9.1   Nothing in the Licence shall limit or exclude either Party’s liability for:

9.1.1   death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

9.1.2   fraud or fraudulent misrepresentation; or

9.1.3   breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

9.2   Subject to clause 9.1, Redstor shall not be liable to the Licensee or any Authorised User, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the Service for:

9.2.1   Loss of data or content;

9.2.2   loss of sales or business;

9.2.3   loss of agreements or contracts;

9.2.4   loss of anticipated savings or anticipated revenue growth;

9.2.5   loss of use or corruption of Service, data or information;

9.2.6   loss of/or damage to goodwill; and

9.2.7   any indirect or consequential loss.

9.3   Redstor shall have no liability to the Licensee, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Licence and the Licensee shall bring any claim for losses against the Reseller. The liability of the Reseller shall be limited to an amount equal to the fee paid by the Licensee to the Reseller  in the twelve months preceding the date of the incident giving rise to liability.

9.4   Redstor does not endorse or recommend any goods or services nor do Redstor make any warranties or representations in respect of any third party, or their goods or services.  The Licensee is encouraged to carry out the Licensee own due diligence in respect of those with whom the Licensee wish to transact.

9.5   Redstor cannot be held responsible for any losses or damages incurred resulting from the actions or omissions of any user and/or Authorised User in connection with the Services.

10. SUSPENSION & Termination

10.1   In the event the Licensee breaches the Licensee obligations under the Licence, Redstor reserves the right to suspend the Licensee use of the Service immediately on written notice.  In the event of suspension of this Licence and suspension of access to the Service under this Licence, the Licensee remains liable for full payment of the Licence Fee throughout the Licence Term including during any period of suspension.

10.2   without limiting its other rights or remedies, either Party may terminate the Licence with immediate effect by giving written notice to the other Party if:

10.2.1   the other Party commits a material breach of any term of the Licence and (if such a breach is remediable) fails to remedy that breach within ten (10) Business Days of that Party being notified in writing to do so;

10.3   To the extent Redstor’s Agreement terminates or expires other than in order to upgrade the Service to one of Redstor’s enhanced Services, the Licensee shall not be entitled to any refund or discount of any part of the Licence Fee subscribed to.

10.4   Redstor may terminate this Licence at will on twelve months advance written notice.

11. Consequences of termination

11.1   On termination of the Licence for any reason:

11.1.1   the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry; and

11.1.2   clauses which expressly or by implication survive termination shall continue in full force and effect.

11.2   Redstor shall afford the Licensee ten (10) Business Days within which the Licensee may download or export the Licensee data and content from the Service and move it to another platform.

12. General

12.1    Force majeure.

12.1.1   Neither Party shall be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under the Licence if such delay or failure result from an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under Redstor’s Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet.

12.2    Assignment and other dealings.

12.2.1   The Licensee shall not at any time assign, transfer, mortgage, charge, subcontract, novate or deal in any other manner with all or any of the Licensee rights under the Licence and shall not subcontract or delegate in any manner any or all of the Licensee obligations under the Licence to any third party or agent without their written consent.

12.2.2   Redstor may at any time assign, transfer, mortgage, charge, subcontract, novate or deal in any other manner with all or any of Redstor’s rights under the Licence and may sublicence or delegate in any manner any or all of Redstor’s obligations under the Licence to any third party or agent without the Licensee written consent.

12.3   Confidentiality.

12.3.1   Each Party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, clients or suppliers of the other Party, except as permitted pursuant to this EULA.

12.3.2   Each Party may disclose the other Party’s Confidential Information:

(a)   to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Licence. Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other Party’s Confidential Information comply with this clause 12.3; and

(b)   as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.4    Entire agreement.

12.4.1   This Licence, and those documents referenced herein, constitute the entire agreement between Redstor and the Licensee and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between Redstor and the Licensee, whether written or oral, relating to its subject matter.

12.4.2   Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Licence.

12.5    Variation. No variation of the Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.6    Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

12.6.1   waive that or any other right or remedy; or

12.6.2   prevent or restrict the further exercise of that or any other right or remedy.

12.7    Severance. If any provision or part-provision of the Licence is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Licence.

12.8    Third parties. No one who is not a Party to the Licence shall have any right to enforce any of its terms.

12.9    Governing law and Jurisdiction. The Licence, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales, and each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction.

 

Annex A

Definitions:

Authorised Users: the Licensee employees, agents and independent contractors who are authorised by the Licensee to use the Service including where appropriate, Licensee’s managed service providers where the use of the Service is for the Licensee’s business purposes only.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is clearly labelled as such or is inherently confidential in its nature.

Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Data Controller: has the meaning given in the Data Protection Legislation.

Data Processor: has the meaning given in the Data Protection Legislation.

Data Protection Legislation: means the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and EU Regulation 2016/679 (“GDPR”); and all subsequent UK legislation pertaining to the protection of living individual’s personal information and/or privacy in the transmission of electronic communications to individuals.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Party or Parties: means the Licensee and/or Redstor.

Personal Data: has the meaning given to it under the Data Protection Legislation.

Privacy Policy: means Redstor’s privacy policy available at www.redstor.com/privacy-policy/ as updated or amended from time to time.

Reseller: means a third the party who has sold the Service to the Licensee.

Virus: any thing or device (including any Service, code, file, programme or hardware) which may: prevent, impair or otherwise adversely affect the operation of any computer Service, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the User experience, including worms, trojan horses, viruses and other similar things or devices.

SaaS Addendum to Redstor EULA

In this Addendum, SaaS refers to Redstor products extracting data from third party SaaS services including Microsoft 365 and G Suite. These terms are supplemental to the terms in the EULA and Data Protection Addendum.

End User acknowledges that the provision of the SaaS service is dependent upon Redstor having access to secured services received by End User from their service provider (Microsoft for Microsoft 365, Google for G Suite). End User acknowledges and agrees that it shall authorise service provider to share access tokens with Redstor to enable Redstor to provide the SaaS services.

Redstor’s use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.

To the extent that the performance of the SaaS service entails Redstor processing Personal Data as defined in the General Data Protection Regulation (or other applicable UK or EU legislation relating to data protection), such processing shall be subject to the data processing schedule.

Data Protection Addendum to Redstor EULA

1. DEFINITIONS

1.1     In this Data Protection Addendum defined terms shall have the same meaning, and the same rules of interpretation shall apply as in the remainder of the EULA. In addition in this Data Protection Addendum the following definitions have the meanings given below:

“Applicable Law” means applicable laws of the European Union (EU), the European Economic Area (EEA) or any of the EU or EEA’s member states from time to time together with applicable laws in the United Kingdom from time to time;
“Appropriate Safeguards” means such legally enforceable mechanism(s) for Transfers of Personal Data as may be permitted under Data Protection Laws from time to time;
“Controller” has the meaning given to that term in Data Protection Laws;
“Data Protection Laws” means all Applicable Laws relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including the following laws to the extent applicable in the circumstances:

(a)     the GDPR;

(b)     the Data Protection Act 2018;

(c)     any laws which implement any such laws; and

(d)    any laws which replace, extend, re-enact, consolidate or amend any of the foregoing (including where applicable, the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 as modified by applicable domestic law from time to time);

“Data Protection Losses” means all liabilities, including all:

(a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and

(b)     to the extent permitted by Applicable Law:

(i)     administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;

(ii)     compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and

(iii)     the reasonable costs of compliance with investigations by a Supervisory Authority;

“Data Subject” has the meaning given to that term in Data Protection Laws;
“Data Subject Request” means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
“EULA” means the End User Licence Agreement entered into between Redstor and its Licensee for the use of  software as a service.
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679;
“International Recipient” means the organisations, bodies, persons and other recipients to which Transfers of the Protected Data are prohibited under paragraph 7.1 without the Licensee’s prior written authorisation;
“List of Sub-Processors” means the latest version of the list of Sub-Processors used by Redstor, as updated from time to time;
“Onward Transfer” means a Transfer from one International Recipient to another International Recipient;
“Personal Data” has the meaning given to that term in Data Protection Laws;
“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
“Processing” has the meanings given to that term in Data Protection Laws (and related terms such as process have corresponding meanings);
“Processing Instructions” has the meaning given to that term in paragraph 3.1.1;
“Processor” has the meaning given to that term in Data Protection Laws;
“Protected Data” means Personal Data in the Licensee Data;
“Sub-Processor” means another Processor engaged by Redstor for carrying out processing activities in respect of the Protected Data on behalf of the Licensee;
“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws;
“Transfer” bears the same meaning as the word ‘transfer’ in Article 44 of the GDPR (or to the extent wider the definition of ‘transfer’ in equivalent provisions of UK Data Protection Laws). Without prejudice to the foregoing, this term also includes all Onward Transfers. Related expressions such as “Transfers”, “Transferred” and “Transferring” shall be construed accordingly; and
“UK Data Protection Laws” means Data Protection Laws that form part of the law of England and Wales, Scotland and/or Northern Ireland from time to time.

 

2. Processor and Controller

2.1     The parties agree that, for the Protected Data, the Licensee shall be the Controller and Redstor shall be the Processor. Nothing in the EULA relieves the Licensee of any responsibilities or liabilities under any Data Protection Laws.

2.2     To the extent the Licensee is not sole Controller of any Protected Data it warrants that it has full authority and authorisation of all relevant Controllers to instruct Redstor to process the Protected Data in accordance with the EULA.

2.3     Redstor shall process Protected Data in compliance with:

2.3.1     the obligations of Processors under Data Protection Laws in respect of the performance of its and their obligations under the EULA; and

2.3.2     the terms of the EULA.

2.4     The Licensee shall ensure that it, its affiliates and each Authorised User shall at all times comply with:

2.4.1     all Data Protection Laws in connection with the processing of Protected Data, the use of the Services (and each part) and the exercise and performance of its respective rights and obligations under the EULA, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws; and

2.4.2     the terms of the EULA.

2.5     The Licensee warrants, represents and undertakes, that at all times:

2.5.1     all Protected Data (if processed in accordance with the EULA) shall comply in all respects, including in terms of its collection, storage and processing, with Data Protection Laws;

2.5.2     fair processing and all other appropriate notices have been provided to the Data Subjects of the Protected Data (and all necessary consents from such Data Subjects obtained and at all times maintained) to the extent required by Data Protection Laws in connection with all processing activities in respect of the Protected Data which may be undertaken by Redstor and its Sub-Processors in accordance with the EULA;

2.5.3     the Protected Data is accurate and up to date;

2.5.4     it shall establish and maintain adequate security measures to safeguard the Protected Data in its possession or control from (including from unauthorised or unlawful destruction, corruption, processing or disclosure) and maintain complete and accurate backups of all Protected Data provided to Redstor (or anyone acting on its behalf) so as to be able to immediately recover and reconstitute such Protected Data in the event of loss, damage or corruption of such Protected Data by Redstor or any other person;

2.5.5     all instructions given by it to Redstor in respect of Personal Data shall at all times be in accordance with Data Protection Laws; and

2.5.6     it has undertaken due diligence in relation to Redstor’s processing operations and commitments and it is satisfied (and all times it continues to use the Services remains satisfied) that:

(a)     Redstor’s processing operations are suitable for the purposes for which the Licensee proposes to use the Services and engage Redstor to process the Protected Data;

(b)     the technical and organisational measures set out in the EULA (as Updated from time to time) shall (if Redstor complies with its obligations) ensure a level of security appropriate to the risk in regards to the Protected Data; and

(c)     Redstor has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Data Protection Laws.

3. Instructions and details of processing

3.1     Insofar as Redstor processes Protected Data on behalf of the Licensee, Redstor:

3.1.1     unless required to do otherwise by Applicable Law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Licensee’s documented instructions as set out in this paragraph 3.1 and paragraphs 3.3 and 3.4 (including when making a Transfer of Protected Data to any International Recipient), as Updated from time to time (Processing Instructions);

3.1.2     if Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Licensee of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and

3.2     The Licensee shall be responsible for ensuring all authorised affiliates’ and Authorised User’s read and understand the Privacy Policy (as Updated from time to time).

3.3     The Licensee acknowledges and agrees that the execution of any computer command to process (including deletion of) any Protected Data made in the use of any of the Subscribed Services by an Authorised User will be a Processing Instruction (other than to the extent such command is not fulfilled due to technical, operational or other reasons, including as set out in the user manual). The Licensee shall ensure that Authorised Users do not execute any such command unless authorised by the Licensee (and by all other relevant Controller(s)) and acknowledges and accepts that if any Protected Data is deleted pursuant to any such command Redstor is under no obligation to seek to restore it.

3.4     Subject to applicable terms in the EULA or the Order Form the processing of the Protected Data by Redstor under the EULA shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in schedule 1.

4. Technical and organisational measures

4.1     Taking into account the nature of the processing, Redstor shall implement and maintain technical and organisational measures:

4.1.1     in relation to the processing of Protected Data by Redstor; and

4.1.2     subject to paragraph 6.1, to assist the Licensee insofar as is possible (taking into account the nature of the processing) in the fulfilment of the Licensee’s obligations to respond to Data Subject Requests relating to Protected Data, in each case at the Licensee’s cost on a time and materials basis in accordance with Redstor’s standard pricing terms.

5. Using staff and other Processors

5.1     Redstor shall not engage any Sub-Processor for carrying out any processing activities in respect of the Protected Data (except in accordance with the EULA) without the Licensee’s written authorisation of that specific Sub-Processor (such authorisation not to be unreasonably withheld, conditioned or delayed).

5.2     The Licensee authorises the appointment of each of the Sub-Processors identified on the List of Sub-Processors as updated from time to time.

5.3     Redstor shall:

5.3.1     prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under paragraphs 2 to 12 (inclusive) (including those obligations relating to sufficient guarantees to implement appropriate technical and organisational measures); and

5.3.2     remain fully liable for all the acts and omissions of each Sub-Processor as if they were its own.

5.4     Redstor shall ensure that all natural persons authorised by it (or by any Sub-Processor) to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential (except where disclosure is required in accordance with Applicable Law, in which case Redstor shall, where practicable and not prohibited by Applicable Law, notify the Licensee of any such requirement before such disclosure).

6. Assistance with compliance and Data Subject rights

6.1     Redstor shall refer all Data Subject Requests it receives to the Licensee without undue delay. The Licensee shall pay Redstor for all work, time, costs and expenses incurred in connection with such activity, calculated at Redstor’s rates set out in Redstor’s standard pricing terms.

6.2     Redstor shall provide such assistance as the Licensee reasonably requires (taking into account the nature of processing and the information available to Redstor) to the Licensee in ensuring compliance with the Licensee’s obligations under Data Protection Laws with respect to:

6.2.1     security of processing;

6.2.2     data protection impact assessments (as such term is defined in Data Protection Laws);

6.2.3     prior consultation with a Supervisory Authority regarding high risk processing; and

6.2.4     notifications to the Supervisory Authority and/or communications to Data Subjects by the Licensee in response to any Personal Data Breach,

provided the Licensee shall pay Redstor for all work, time, costs and expenses incurred in connection with providing the assistance in this paragraph 6.2, calculated at Redstor’s rates set out in Redstor’s standard pricing terms.

7. International data Transfers

7.1     Subject to paragraphs 7.2 and 7.5, Redstor shall not Transfer any Protected Data:

7.1.1     from any country to any other country; and/or

7.1.2     to an organisation and/or its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries,

without the Licensee’s prior written authorisation except where Redstor is required to Transfer the Protected Data by Applicable Law (and shall inform the Licensee of that legal requirement before the Transfer, unless those laws prevent it doing so).

7.2      The Licensee hereby authorises Redstor to Transfer any Protected Data to any International Recipient(s), provided all Transfers by Redstor of Protected Data to an International Recipient (and any Onward Transfer) shall be (to the extent required under Data Protection Laws) effected by way of Appropriate Safeguards and in accordance with Data Protection Laws and the EULA. The provisions of the EULA (including this Data Protection Addendum) shall constitute the Licensee’s instructions with respect to Transfers in accordance with paragraph 3.1.1.

7.3      The Appropriate Safeguards employed by Redstor in connection with the EULA can be found within the EULA.

7.4      Redstor (or its Sub-Processors) may only process Protected Data in the locations specified within the EULA.

7.5      The Licensee acknowledges that due to the nature of cloud services, the Protected Data may be Transferred to other geographical locations in connection with use of the service further to access and/or computerised instructions initiated by Authorised Users. The Licensee acknowledges that Redstor does not control such processing and the Licensee shall ensure that Authorised Users (and all others acting on its behalf) only initiate the Transfer of Protected Data to other geographical locations if Appropriate Safeguards are in place and that such Transfer is in compliance with all Applicable Laws.

8.  Information and audit

8.1      Redstor shall maintain, in accordance with Data Protection Laws binding on Redstor, written records of all categories of processing activities carried out on behalf of the Licensee.

8.2      On request, Redstor shall provide the Licensee (or auditors mandated by the Licensee) with a copy of the third party certifications and audits to the extent made generally available to its customers. Such information shall be confidential to Redstor and shall be Supplier’s Confidential Information as defined in the EULA, and shall be treated in accordance with applicable terms.

8.3      In the event that the Licensee, acting reasonably, deems the information provided in accordance with paragraph 8.2 insufficient to satisfy its obligations under Data Protection Laws, Redstor shall, on request by the Licensee make available to the Licensee such information as is reasonably necessary to demonstrate Redstor’s compliance with its obligations under this Data Protection Addendum and Article 28 of the GDPR (and under any Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Licensee (or another auditor mandated by the Licensee) for this purpose provided:

8.3.1     such audit, inspection or information request is reasonable, limited to information in Redstor’s possession or control and is subject to the Licensee giving Redstor reasonable (and in any event at least 60 days’) prior notice of such audit, inspection or information request;

8.3.2     the parties (each acting reasonably and consent not to be unreasonably withheld or delayed) shall agree the timing, scope and duration of the audit, inspection or information release together with any specific policies or other steps with which the Licensee or third party auditor shall comply (including to protect the security and confidentiality of other customers, to ensure Redstor is not placed in breach of any other arrangement with any other customer and so as to comply with the remainder of this paragraph 8.3);

8.3.3     the Licensee shall ensure that any such audit or inspection is undertaken during normal business hours, with minimal disruption to the businesses of Redstor;

8.3.4     the duration of any audit or inspection shall be limited to one Business Day;

8.3.5     all costs of such audit or inspection or responding to such information request shall be borne by the Licensee, and Redstor’s costs, expenses, work and time incurred in connection with such audit or inspection shall be reimbursed by the Licensee on a time and materials basis in accordance with Redstor’s standard pricing terms;

8.3.6     the Licensee’s rights under this paragraph 8.3 may only be exercised once in any consecutive 12 month period, unless otherwise required by a Supervisory Authority;

8.3.7     the Licensee shall promptly (and in any event within one Business Day) report any non-compliance identified by the audit, inspection or release of information to Redstor;

8.3.8     the Licensee agrees that all information obtained or generated by the Licensee or its auditor(s) in connection with such information requests, inspections and audits shall be Supplier’s Confidential Information as defined in the EULA, and shall be treated in accordance with applicable terms;

8.3.9     the Licensee shall ensure that each person acting on its behalf in connection with such audit or inspection (including the personnel of any third party auditor) shall not by any act or omission cause or contribute to any damage, destruction, loss or corruption of or to any systems, equipment or data in the control or possession of Redstor while conducting any such audit or inspection; and

8.3.10    this paragraph 8.3 is subject to paragraph 8.4.

8.4     The Licensee acknowledges and accepts that relevant contractual terms agreed with Sub-Processor(s) may mean that Redstor or Customer may not be able to undertake or facilitate an information request or audit or inspection of any or all Sub-Processors pursuant to paragraph 8.3 and:

8.4.1     the Licensee’s rights under paragraph 8.3 shall not apply to the extent inconsistent with relevant contractual terms agreed with Sub-Processor(s);

8.4.2     to the extent any information request, audit or inspection of any Sub-Processor are permitted in accordance with this paragraph 8.4, equivalent restrictions and obligations on the Licensee to those in paragraphs 8.3.1 to 8.3.10 (inclusive) shall apply together with any additional or more extensive restrictions and obligations applicable in the circumstances; and

8.4.3     paragraphs 5.3.1 and 8.3 shall be construed accordingly.

8.5     Notwithstanding paragraph 8.4, Redstor shall ensure that it has appropriate mechanisms in place to ensure its Sub-Processors meet their obligations under Data Protection Laws and Redstor’s obligations in respect of Protected Data under the EULA. The Licensee accepts that the provisions of paragraph 8.4 shall satisfy Redstor’s obligations in that regard.

9. Breach notification

9.1     In respect of any Personal Data Breach involving Protected Data, Redstor shall, without undue delay (and in any event within 72 hours):

9.1.1     notify the Licensee of the Personal Data Breach; and

9.1.2     provide the Licensee with details of the Personal Data Breach.

10. Deletion of Protected Data and copies

Following the end of the provision of the Services (or any part) relating to the processing of Protected Data Redstor shall dispose of Protected Data in accordance with its obligations under the EULA. Redstor shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Protected Data undertaken in accordance with the EULA.

11. Compensation and claims

11.1     Redstor shall be liable for Data Protection Losses (howsoever arising, whether in contract, tort (including negligence) or otherwise) under or in connection with the EULA:

11.1.1     only to the extent caused by the processing of Protected Data under the EULA and directly resulting from Redstor’s breach of the EULA; and

11.1.2     in no circumstances to the extent that any Data Protection Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of the EULA by the Licensee (including in accordance with paragraph 3.1.3(b)).

11.2     If a party receives a compensation claim from a person relating to processing of Protected Data in connection with the EULA or the Services, it shall promptly provide the other party with notice and full details of such claim. The party with conduct of the action shall:

11.2.1     make no admission of liability nor agree to any settlement or compromise of the relevant claim without the prior written consent of the other party (which shall not be unreasonably withheld or delayed); and

11.2.2     consult fully with the other party in relation to any such action but the terms of any settlement or compromise of the claim will be exclusively the decision of the party that is responsible under the EULA for paying the compensation.

11.3     The parties agree that the Licensee shall not be entitled to claim back from Redstor any part of any compensation paid by the Licensee in respect of such damage to the extent that the Licensee is liable to indemnify or otherwise compensate Redstor in accordance with the EULA.

11.4     This paragraph 11 is intended to apply to the allocation of liability for Data Protection Losses as between the parties, including with respect to compensation to Data Subjects, notwithstanding any provisions under Data Protection Laws to the contrary, except:

11.4.1     to the extent not permitted by Applicable Law (including Data Protection Laws); and

11.4.2     that it does not affect the liability of either party to any Data Subject.

12.  Survival

This Data Protection Addendum (as Updated from time to time) shall survive termination (for any reason) or expiry of the EULA and continue until no Protected Data remains in the possession or control of Redstor or any Sub-Processor, except that paragraphs 10 to 12 (inclusive) shall continue indefinitely.

Schedule 1

Data processing details

Subject-matter of processing:

Performance of respective rights and obligations under the EULA and delivery and receipt of the Services under the EULA;

Duration of the processing:

Until the earlier of final termination or final expiry of the EULA, except as otherwise expressly stated in the EULA;

Nature and purpose of the processing:

Processing in accordance with the rights and obligations of the parties under the EULA;

processing as reasonably required to provide the Services; and

processing as initiated, requested or instructed by Authorised Users in connection with their use of the Services, or by the Licensee, in each case in a manner consistent with the EULA;

Type of Personal Data:

Personal Data including legal and other names, titles, positions, e-mail addresses, and phone numbers as further outlined in the EULA;

Categories of Data Subjects:

Categories of data subjects including customers, resellers, partners and employees as further outlined inyees as further outlined in the EULA.

Schedule 2

List of Sub-Processors

Company Name Sub-processing activities Location
Microsoft Inc. License server hosting EU
Ciklum UK Ltd Software development Spain
SoftwareHut sp. z. o. o. Software development Poland