Solgari End User License Agreement

This End User License Agreement (the “License”) is a legal agreement between you, the end user or the partner buying for resale to the end user, (the “Licensee” or “You” or “you”) and Solgari Limited (“Solgari” or “Licensor” or “we”) for your use of the Solgari Software or Service (the “Service” “Services” and applicable “Software”), and any Documentation you will need to avail of the  Services offered by the Licensor. If you purchased the Services granted hereunder through a Public or Private Offer (the ‘Offer’) from Microsoft Marketplace (‘Marketplace’), to the extent there is any conflict between this License and the Standard Contract for Marketplace (‘Marketplace Agreement’), this License shall prevail.

BY CONNECTING TO, ACTIVATING AND UTILISING THE SERVICES, YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. BY CONNECTING TO THE SERVICES YOU AGREE TO THE TERMS OF THIS LICENSE AND THE TERMS AND CONDITIONS AS CONTAINED IN THE MARKETPLACE AGREEMENT  WHICH WILL BIND YOU, THE END USER, AND WHERE RELEVANT YOUR EMPLOYEES OR WHERE YOU HAVE INCLUDED DETAILS OF A COMPANY OR OTHER LEGAL ENTITY THE PERSON WHOSE DETAILS ARE REGISTERED. 

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT ACTIVATE THE SERVICES, OR USE THE SERVICES.

NATURE OF THE DOCUMENT

This License is a legal agreement between you (the ”Licensee”) and Solgari which, in addition to Marketplace Agreement, contains the terms and conditions that must be complied with if you connect to Services (the ”Terms”) including the accompanying written or text materials (collectively the ”Software”). This License also applies to any and all other related or bundled Software, products, and/or suites, and their accompanying materials, and the terms and conditions of same are incorporated herein by reference. The acceptance of this License constitutes the acceptance of the terms and conditions associated with all other related or bundled Software, products and/or Services and you are bound by the terms and conditions of same. This License shall commence when you purchase the Services.

Solgari may vary or change any part of this License for any commercial, technical or operational reason and any material changes shall be notified to you advance.

1 GRANT AND SCOPE OF LICENSE

1.1 In consideration of you agreeing to abide by the terms of this License, the Licensor hereby grants to you, or where agreed by Solgari customers who you allow to be connected to the Services, a limited, non-exclusive, non-transferable, revocable license to utilise the Services, and to use the Services and or Software for your use only. All intellectual property rights in the Services and or Software shall be and at all times and for all purposes remain vested in the Licensor. This License is personal to you and cannot be assigned or transferred without Solgari’s consent.

2 LICENSEE’S UNDERTAKINGS

2.1 Except as expressly set out in this License or as permitted by any local law, you undertake not to:

2.1.1 Commercialise or attempt to commercialise the Services and or Software for your own or any thirds party use;

2.1.2 Make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Services and or Software;

2.1.3 Make any translation, adaptation, arrangement or any other alteration of the Services and or Software;

2.1.4 Make any form of distribution to the public of the Services and or Software, in whole or in part, or of copies thereof;

2.1.5 Disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the Services, the Software, or another product wholly or partially derived from any of the foregoing;

2.1.6 Assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Services and or Software or use the Service and or Software on behalf of any third party, or make available the same to any third party without the prior written consent of the Licensor;

2.1.7 Copy, adapt. modify or reverse compile the whole or any part of the Services and or Software (unless permitted by applicable law);

2.1.8 Remove or alter any copyright or other proprietary notice from the Services and or Software;

2.1.9 Rely on the Services and or Software in the event of an emergency; or

2.1.10 Use the Services and or Software for any unlawful or illegal purpose.

2.2 You hereby agree to indemnify and hold the Licensor and its licensors harmless from and against any liabilities, damages, judgments, losses, costs and expenses (including reasonable legal fees) arising out of your utilisation of the Services in a manner inconsistent with this License.

3 LICENSOR’S UNDERTAKINGS

3.1 We shall indemnify you against any claim that your utilisation of the Services and or use or possession of the Software infringes the copyright of any third party provided:

3.1.1 we are immediately notified of any such claim;

3.1.2 you do not make any admissions of liability to the relevant third party;

3.1.3 we are given immediate and complete control of such claim, including the right to conduct the defence of any claim and to make any settlements as appropriate; and

3.1.4 the claim does not arise on foot of any of the circumstances set out in condition 2.1 above.

3.2 We shall have the right to replace, modify or change the Services and or Software to make the Services and or Software non-infringing or, alternatively, take back the Software and refund to you the price of the Software. This states the entire liability of the Licensor to you in respect of the infringement of the intellectual property rights of any third parties.

3.3 We shall deliver the Software as per the Service Level Agreement (‘SLA’) which is included in Appendix 1. The standard support tier is included in the Offer unless otherwise requested.

3.4 In conjunction with Clause 2 of the Customer Agreement, our Data Processing Agreement which is included in Appendix 2 will apply.

4 INTELLECTUAL PROPERTY RIGHTS

4.1 You acknowledge that all intellectual property rights, title and interest in the Services and or Software throughout the world belong to the Licensor (its licensors), that rights in the Services and Software are licensed (not sold) to you, and that you have no rights in, or to, the Services and or Software other than the right to use them in accordance with the terms of this License and Marketplace Agreement.

5 INTEGRITY OF DATA

5.1 You acknowledge that the Software has not been developed to meet your individual requirements and that it is, therefore, your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

5.2 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this License and Marketplace Agreement.

5.3 You agree that you are the best judge of the value and importance of the data held on your device, and not subject to the Marketplace Agreement, and that you will be solely responsible for:

5.3.1 instituting and operating all necessary back-up procedures, for your own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason; and

5.3.2 taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.

5.4 Except as expressly provided herein or in Marketplace Agreement and to the extent permitted under applicable law, all conditions and warranties (express or implied, statutory or otherwise) are excluded by the Licensor. Without prejudice to the generality of the foregoing, the Licensor does not warrant that the Software will achieve any intended result or that the operation by you of the Software will be uninterrupted or error free.

5.5 For the avoidance of doubt, the Licensor shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:

5.5.1 any use of the Software by you other than in accordance with the terms of this License or use of the Software for a purpose for which it was not designed;

5.5.2 any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Software;

5.5.3 any reverse assembly, reverse compilation, reverse engineering or adaptation of the whole or part of the Software;

5.5.4 alteration, modification, adjustment, translation, adaptation or enhancement made by you to the Software or any combination, connection, operation or use of the Software with any other equipment, software or Documentation;

5.5.5 any dissemination, sale, hire, lease offer or exposure for sale or distribution of the Software;

5.5.6 any item of third party hardware or software, even if if the Licensor has recommended such third party hardware or software;

5.5.7 any breach by you of your obligations under this License or of the Licensor’s intellectual property rights; or

5.5.8 any act, omission, negligence, fraud or default of or by you or your officers, employees, agents or contractors.

6 LICENSOR’S LIABILITY

6.1 Nothing in this License shall exclude or in any way limit the Licensor’s liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.

6.2 Subject to condition 6.1 and the Marketplace Agreement, the Licensor shall not be liable under or in connection with this License or any collateral contract for loss of income, loss of business profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, loss of, damage to or corruption of data or any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

6.3 Subject to condition 6.1 and condition 6.2, and the Marketplace Agreement, the Licensor’s maximum aggregate liability under or in connection with this License, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to the sums set out in Clause 8 of the Marketplace Agreement.

6.4 Subject to conditions 6.1, condition 6.2 and condition 6.3, and the Marketplace Agreement, the Licensor’s liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in Ireland.

6.5 This License and the Marketplace Agreement sets out the full extent of the Licensor’s obligations and liabilities in respect of the supply of the Services and or Software. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this License and the Marketplace Agreement. Any condition, warranty, representation or other terms concerning the supply of the Services and or Software which might otherwise be implied into, or incorporated in, this License, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

7 TERMINATION

7.1 This License is effective until terminated in accordance with the Marketplace Agreement.

7.2 The Licensor may terminate this License immediately without notice to you if:

7.2.1 you commit a material or persistent breach of this License which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so including non payment of Marketplace invoices; or

7.3 Upon termination for any reason:

7.3.1 all rights granted to you under this License shall cease;

7.3.2 you must cease all activities authorised by this License and Agreement; and

7.3.3 you must immediately pay to the Licensor any sums due to the Licensor under this License.

8 TRANSFERS OF RIGHTS AND OBLIGATIONS

8.1 This License is binding on you and us and on our respective successors and assigns.

8.2 You may not transfer, assign, charge or otherwise dispose of this License and Marketplace Agreement, or any of your rights or obligations arising under it, without our prior written consent. The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this License and Marketplace Agreement, or any of his rights or obligations arising under it, at any time during the term of the License and Marketplace Agreement.

9 EVENTS OUTSIDE THE LICENSOR’S CONTROL

9.1 The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this License that is caused by an event outside his reasonable control (Force Majeure Event).

9.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of public or private telecommunications networks, the acts, decrees, legislation, regulations or restrictions of any government, epidemic or pandemic.

9.3 The Licensor’s performance under this License is deemed to be suspended for the period that the Force Majeure Event continues, and he will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this License may be performed despite the Force Majeure Event.

10 AMENDMENTS TO THE LICENSE

10.1 The Licensor and its licensors reserve the right, at their sole discretion, to amend, add or delete, any of the terms and conditions of this License when the Software is upgraded, effective upon prior notice as follows:

The Licensor will post notification of any such changes to this License on the Solgari website and will provide a link to the revised version of this License, and may provide such other notice as the Licensor may elect in its sole discretion.

If any future changes to this License are unacceptable to you or cause you to no longer be in compliance with this License, you may terminate this License in accordance with the terms herein and the Marketplace Agreement.  Your use of any updated or modified Software or your continued use of the Software following notice of changes to this License as described above means you accept any and all such changes. The Licensor and its licensors may change, modify, suspend, or discontinue any aspect of the Software and/or the Service at any time provided in accordance with the Marketplace Agreement.The Licensor may also impose limits on certain features of the Software without notice or liability provided in accordance with the Marketplace Agreement. You disclaim any right, title or interest, monetary or otherwise, in any feature or content contained in the Services and Software.

11 WAIVERS

11.1 If the Licensor fails, at any time during the term of this License to insist on strict performance of any of your obligations under this License or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this License this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

11.2 A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

11.3 No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

12 CONFIDENTIAL INFORMATION

12.1 The Services, the Software and any associated Documentation (the “Documentation”) contain confidential information of the Licensor and all copyright, trademarks and all other intellectual property rights in and to the Services, the Software and Documentation are and shall remain the sole and exclusive property of the Licensor. Nothing in this License shall confer any rights in any trade name, business name or trademark of the Licensor on you. The provisions of this Clause 12 shall continue to operate after the termination of this License.

13 SEVERABILITY

13.1 If any of the terms of this License are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

14 ENTIRE AGREEMENT

14.1 This License, the Marketplace Agreement and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

14.2 We each acknowledge that, in entering into this License, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this License except as expressly stated in this License.

14.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this License (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in this License and Marketplace Agreement.

15 LAW AND JURISDICTION

15.1 This License is governed by the laws of the jurisdiction that you are a resident of. Any dispute arising from, or related to, any term of this License shall be subject to the non-exclusive jurisdiction of the courts of that jurisdiction.

16 ACCEPTANCE

16.1 By utilising the Services and Software you are deemed to have read, understood and accepted all the Terms of this License for all the Services offered by Solgari as highlighted in this License and Marketplace Agreement.

16.2 None of the provisions of this License shall be interpreted as to deprive you of any rights.

APPENDIX A – SERVICE LEVEL AGREEMENT

Our Commitment to You

• We commit that our Service will be available for a minimum 99.999% of the time 24/5 and 9999% of the time 24/7 provided you have subscribed for 24/7 support.
• All availability commitments are contingent upon your required IT services being available. Performance will not be measured whilst your systems or Microsoft Azure, Teams or Dynamics 365 are unavailable to us or where changes that impact our interface have been made without our prior knowledge. Notice of changes that affect our interfaces to your systems must be made to us at least 14 days in advance.
• We will give at least 72 hours-notice of any planned down time of the service that is likely to last for more than 5 minutes and that the system will never be intentionally taken down during normal business hours.
• Support hours are 09:00 – 17:00 Monday – Friday local time excluding bank holidays, when 24/7 support is not included in the contract.
  • We will address any fault that you report to us according to the following schedule on a best efforts basis with the initial response time based on your chosen support subscription and when we are first informed by you of the issue and the priority response level has been agreed:

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

If the Service Availability (‘SA’) from Monday to Friday for a specific calendar month is below the guaranteed level, excluding Scheduled Maintenance time, we will credit your account as per the grid below.

Service Outage is limited to severity 1 issues only and means that your users do not have their prime customer communication channel available. Service availability is measured against the 99.9% global communications network SLA and is deem to be breached if it goes below this.

SLA penalties are calculated as follows:

To receive a refund for downtime, you must be in good standing with us (i.e., all accounts are up to date, and you are not in breach of the Agreement). Monthly penalties will be applied to the following month’s invoice. If you have terminated this Agreement in accordance with Clause 8.1 or 8.2, and the SLA is breached in the month prior to the termination, we will make a payment to you in line with the monthly penalty payable.

Responsibilities

Service provisioning & set up responsibilities.

Our Responsibility

• We will provision and provide the Service as described above.
• We will deliver the IP Desk Phones, if required, pre-configured for each user extension.
• We will support you remotely during the set-up process including following the customer on-boarding protocol.
• We will provide technical and customer support as per the SLA and the support protocol document.
• We will provide online training or onsite training as requested by you as part of your requirements.

Your Responsibility

• You will provide the network capability including enough bandwidth to 92KB per concurrent call and 250KB per concurrent video call.
• Where applicable you will notify us in advance of any changes relevant to communications in Microsoft Teams and Dynamics 365 or any other platform you have asked us to integrate with.
• You will provide an in-house or external IT resource who will be responsible for the following:
• Setting Quality of Service and turning off any NAT Helper such as ALG on the network.
• Allow traffic from our IP and ports over your firewall and/or VPN/Proxy server.
• Notify us of any changes to network infrastructure such as IP addresses, firmware and equipment upgrades or other changes that may affect the Solgari service.

APPENDIX B – DATA PROCESSING AGREEMENT

• Instructions

In this Data Processing Agreement you shall act as Data Controller and we shall act as Data Processor, regarding any Personal Data.  You hereby instruct us to carry out the Processing Services. When carrying out the Processing Services, we shall only process Personal Data in accordance with the instructions from you and only for the purposes authorized by you.  Data will only be kept for clear and legal purposes.  All Data will be processed fairly and in keeping with the purpose for which it was obtained.  The Data collected by us shall only be the Data provided by you which can include employee names, extension numbers, DDI, email addresses and how you or your employees use the services including recorded communication data relating to SMS, Calls, Chat and Video.

You shall make available the appropriate power of attorney, for us to act on your behalf regarding the signing of the standard contractual clauses, after you approve specifically and in writing any relevant sub-processor.  You shall ensure that you have the proper authority to furnish Data to us relating to you or your employees.

We will use the Data for administering and managing the service provided to you which shall include quality of service monitoring, providing you with information about the service, conducting market research and analysis to enhance the service on offer, sending you communications and newsletters, notifying you about changes to products and services and verifying your identity.

Certain non-personal Data collected may be transferred to third parties in connection with operating our business.  By submitting Data (including personal Data) you agree to the transfer, storing and processing of this Data by us.  Data may be disclosed by us to our professional advisors to seek advice, service providers such as payment processors, delivery service providers, technology providers and our business partners.

• Applicable Law
  • When carrying out the obligations under the Agreement, we shall comply with all Applicable Data Protection Laws including the General Data Protection Regulation (GDPR) (EU) (2016/679) and further with local Applicable Data Processor Laws.

• We shall deal promptly and appropriately with your requests for assistance to ensure compliance of the processing of the Personal Data with Applicable Data Protection Laws.

If we:

1. determine we are unable for any reason to comply with our obligations under this Agreement and we cannot cure this inability to comply; or;
2. become aware of any circumstance or change in the Applicable Data Protection Laws, that is likely to have a material adverse effect on our ability to meet our obligations under this Data Processing Agreement;
   • We shall promptly, but within 24 hours, if possible, notify you thereof, in which case you will have the right to temporarily suspend the Processing Services until such time the Processing Services are adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible within thirty (30) days, you shall have the right to terminate the relevant part of the Processing Services by us.

• Security We shall implement appropriate technical, physical, and organizational security measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, or access, and against all other forms of unlawful Processing Services (including, but not limited to, unnecessary collection or further Processing Services). These measures shall, taking into account the state of the art and the costs of the implementation and execution of the measures, ensure an adequate level of protection taking into account the risks involved in the Processing Services and the nature of the Personal Data to be secured.

• Non-Disclosure & Confidentiality We shall keep Personal Data confidential and shall not Disclose Personal Data in any way to any Third Party without your prior written approval, except where in accordance with the Agreement, (i) the Disclosure is necessary for the normal and expected performance of the Processing Services, or (ii) where Personal Data need to be Disclosed to a competent public authority to comply with a legal obligation.

• We shall for a minimum period of six (6) months, unless Applicable Data Protection Laws provides otherwise, keep a record of any Disclosure that is made, including, but not limited to:

1. Name and address of the third Party to which Personal Data was Disclosed;
2. Personal Data which was Disclosed;
3. Date and time on which Personal Data was Disclosed; and
4. Purpose of Disclosure.

We shall provide staff access to Personal Data only to the extent necessary to perform the Processing. We shall provide our staff (employees and if applicable hired personnel) access to Personal Data only to the extent necessary to perform the Processing Services. We shall ensure that any staff we authorise to have access to Personal Data Processed on our behalf, shall respect, and maintain the confidentiality and security of such Personal Data.

• Sub-Processors

We shall not permit sub-processors to Process Personal Data without your prior written consent. Any authorisation by you to use any sub-processor, is on the condition that we remain fully liable to you for the sub-processor’s performance of the contract, as well as for any acts or omissions of the sub-processor in regard of its Processing Services.

• Notifications
  • We shall promptly, and in any case within twenty-four (24) hours where possible, inform you if:

1. we receive an inquiry, a subpoena or a request for inspection or audit from a competent public authority relating to the Processing Services, unless we are otherwise prohibited by law from making such disclosure.
2. we intend to Disclose Personal Data to any competent public authority.
3. if we detect or reasonably suspects that a material data Security Breach has occurred.

Such notice shall be sent per e-mail to the Customer Contract Manager, with a copy to your Legal Department. In case of a Data Security Breach, we shall take adequate remedial measures as soon as possible. Furthermore, we shall without undue delay , provide you with all relevant information (that can be provided in that time frame, due to the difficulty and complexity of the breach) as requested by you regarding the any relevant Data Security Breach but at all times regarding any Security Breach. We shall fully cooperate with you to develop and execute a response plan to address the relevant Security Breach. We shall at your request cooperate adequately, informing the Individuals involved.

• Co-operation, Complaints, Requests & Inquiries

We shall use our best endeavours to deal promptly and appropriately with your inquiries related to the Processing Services.In the event we have direct contact with a client of yours, we shall promptly inform you of any complaints, requests or inquiries received from Individuals, including but not limited to requests to correct, delete, or block Personal Data. We shall not respond to the individuals directly unless specifically instructed by you, in which case we shall respond within a reasonable period, and in any case within three (3) weeks after receipt of the respective complaint, request or inquiry. In any event we shall cooperate with you to address and resolve any such complaints, requests or inquiries. We shall maintain in place procedures to enable compliance with such complaints, requests, or inquiries.

• Return & Erasure of Personal Data
  • All Personal Data shall be immediately returned to you upon your first request. We shall not retain Personal Data any longer than necessary for the purposes of performing its obligations under the Data Processing Agreement and the Agreement.

• Upon termination of the Agreement, we shall, at your option return the Personal Data and copies thereof to you or shall securely destroy such Personal Data, except to the extent the Data Processing Agreement or Applicable Processor Law provides otherwise. In that case, we shall no longer process the Personal Data, except to the extent required by the Agreement or Applicable Data Processor Law.  You may require us to promptly, confirm and warrant in writing that we have returned, deleted, or destroyed all copies of Personal Data.

• Transfer of Personal Data
  • We shall not transfer Personal Data to any Non-adequate Country outside EEA or make such Personal Data accessible from any such Non-adequate Country without your prior written approval.

• Any transfer of Personal Data outside the EEA to a Third Party in a Non-adequate Country shall be governed by the terms of a data transfer agreement, which will contain standard contractual clauses as published in the Decision of the European Commission of February 5, 2010 (Decision 2010/87/EC). We and you will work together to apply for and obtain any permit, authorization or consent that may be required under Applicable Local Law in respect of the implementation of the solution described in this Clause.

• Obligation to Renegotiate Agreement
  • Each year, or sooner if so dictated by circumstances, parties shall evaluate the Processing Services in line with the regular SLA governance and meeting structure. If changes are required in the Processing Services by us, parties shall amend the Data Processing Agreement to comply with Applicable Data Protection Law and Applicable Data Processor Law.

• We shall immediately inform you of any circumstances which may be relevant in this respect, including, but not limited to:

1. material changes in the services provided by a sub-processor;
2. a take-over or merger of Supplier or any of its sub-processors.

• Rights of Individuals

This clause is applicable in the following situations:

1. We are permitted by you to use sub-processors situated outside the EEA and the transfer is based on Safe Harbour; and
2. where the standard contractual clauses as referenced in Clause 9.2 should have been applicable in accordance with this Agreement, but were not met of not rightfully met for whichever reason. If the EU clauses would have been applicable, this clause would have been applicable as well.

The Individual can enforce our data protection obligations under this Data Processing Agreement directly against us in cases where you have factually disappeared or have ceased to exist in law unless any successor entity has assumed the our entire legal obligations by contract or by operation of law, as a result of which it takes on your rights and obligations, in which case the individual can enforce them against such entity.

If an Individual is not able to bring a claim for compensation against you, arising out of a breach by us (or his sub-processor) of any of its obligations under this Data Processing Agreement, because you have factually disappeared or ceased to exist in law or has become insolvent, We agree that the individual may issue a claim against us as if it were you, unless any successor entity has assumed the entire of your legal obligations by contract or by operation of law, in which case the Individual can enforce its rights against such entity. We may not rely on a breach by a sub-processor of its obligations to avoid its own liabilities.

Annex: Definitions

“Applicable Data Processor Law” shall mean the Data Protection Laws that are applicable to Supplier as the Data Processor of the Personal Data;

“Applicable Data Protection Law” means all laws, rules, regulations, governmental requirements, codes as well as international, federal, state, provincial laws applicable to Customer as the Data Controller of the Personal Data;

“Data Controller” shall mean the entity or natural person which alone or jointly with others determines the purposes and means of the Processing of Personal Data.

“Data Processor” shall mean the entity or natural person which Processes Personal Data on behalf of a Data Controller.

“Data Security Breach” shall mean the unauthorized acquisition, access, use or Disclosure of Personal Data.

“Disclosure” or “Disclose” or “Disclosed” shall mean any form of disclosure of Personal Data to (including remote access by) an unauthorised Employee or any unauthorised Third Party;.

“EEA” (European Economic Area) shall mean all Member States of the European Union, Norway, Iceland, Liechtenstein and, for purposes of this Annex, Switzerland and the UK.

“Employee” shall mean any employee, agent, contractor, work-for-hire or any other person working on behalf of, or under the instruction or supervision of, Supplier.

“GDPR” means General Data Protection Regulation (GDPR) (EU) (2016/679)

“Individual” shall mean any individual whose Personal Data is Processed by Data Processor during the performance of the Agreement.

“Non-adequate Country” means a country that is deemed not to provide an adequate level of protection for Personal Data within the meaning of  General Data Protection Regulation (GDPR) (EU) (2016/679);

“Personal Data” means data which relate to a living individual who can be identified: from those date, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (as defined in the Data Protection Act 1998 and GDPR).

“Processing Services” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage , adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available (including the granting of remote access), alignment or combination, blocking, erasure or destruction.

“Processing”, “Process” or “Processed” shall mean any operation that is performed on Personal Data, regarding the Processing Service.

APPENDIX A – SERVICE LEVEL AGREEMENT

Our Commitment to You

• We commit that our Service will be available for a minimum 99.999% of the time 24/5 and 99.999% of the time 24/7 provided you have subscribed for 24/7 support.
• All availability commitments are contingent upon your required IT services being available. Performance will not be measured whilst your systems or Microsoft Azure, Teams or Dynamics 365 are unavailable to us or where changes that impact our interface have been made without our prior knowledge. Notice of changes that affect our interfaces to your systems must be made to us at least 14 days in advance.
• We will give at least 72 hours-notice of any planned down time of the service that is likely to last for more than 5 minutes and that the system will never be intentionally taken down during normal business hours.
• Support hours are 09:00 – 17:00 Monday – Friday local time excluding bank holidays, when 24/7 support is not included in the contract.
  • We will address any fault that you report to us according to the following schedule on a best efforts basis with the initial response time based on your chosen support subscription and when we are first informed by you of the issue and the priority response level has been agreed:

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

* To be followed when no other schedule has been agreed with the contact person for the ticket in question.

If the Service Availability (‘SA’) from Monday to Friday for a specific calendar month is below the guaranteed level, excluding Scheduled Maintenance time, we will credit your account as per the grid below.

Service Outage is limited to severity 1 issues only and means that your users do not have their prime customer communication channel available. Service availability is measured against the 99.9% global communications network SLA and is deem to be breached if it goes below this.

SLA penalties are calculated as follows:

To receive a refund for downtime, you must be in good standing with us (i.e., all accounts are up to date and you are not in breach of the Agreement). Monthly penalties will be applied to the following month’s invoice. If you have terminated this Agreement in accordance with Clause 8.1 or 8.2, and the SLA is breached in the month prior to the termination, we will make a payment to you in line with the monthly penalty payable.

Responsibilities

Service provisioning & set up responsibilities.

Our Responsibility

• We will provision and provide the Service as described above.
• We will deliver the IP Desk Phones, if required, pre-configured for each user extension.
• We will support you remotely during the set-up process including following the customer on-boarding protocol.
• We will provide technical and customer support as per the SLA and the support protocol document.
• We will provide online training or onsite training as requested by you as part of your requirements.

Your Responsibility

• You will provide the network capability including enough bandwidth to 92KB per concurrent call and 250KB per concurrent video call.
• Where applicable you will notify us in advance of any changes relevant to communications in Microsoft Dynamics 365 or any other platform you have asked us to integrate with.
• You will provide an in-house or external IT resource who will be responsible for the following:
• Setting Quality of Service and turning off any NAT Helper such as ALG on the network.
• Allow traffic from our IP and ports over your firewall and/or VPN/Proxy server.
• Unboxing, setting up and plugging in the delivered IP Desk Phones.
• Notify us of any changes to network infrastructure such as IP addresses, firmware and equipment upgrades or other changes that may affect the Solgari service.