STELLAR OS™ SOFTWARE AS A SERVICE (SAAS) AGREEMENT
(“SAAS TERMS AND CONDITIONS”)
These Stellar OS™ SAAS Terms and Conditions (the “Terms and Conditions”) are entered into by and between New Sun Road P.B.C. (“NSR”) and you (“Customer”) upon acceptance and written acknowledgment by NSR of an order (“Order Form”) referencing these Terms and Conditions.
The following capitalized terms shall have the following meanings whenever used in this Agreement. Definitions used herein in the singular, where the context so permits shall be deemed to include the plural and vice versa:
“Agreement” means these SAAS Terms and Conditions and incorporates the relevant Order Form(s) ordering the SAAS Services.
“Component Manufacturer” means any or all of the manufacturers of the Customer’s solar microgrid or power system components, and includes, but is not limited to, the manufacturers of the solar panels, inverters, batteries, charge controllers, rectifiers, plant meters, customer meters, sensors, and networking equipment not otherwise provided by NSR.
“Content” means any and all data, software, information, and other material, in any format obtained from the Customer, its Component Manufacturers, and any third-party data, and/or content service providers, and made available to the NSR through the Software and through Customer’s use of the Services.
“Customer Data” means non-public data, information, and other content that is collected, downloaded, or otherwise received directly or indirectly from Customer to enable the provision of the Services.
“Customer Failure” means any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under this Agreement. “Initial Service Term” shall mean the Initial Service Term set out in the Order Form. “Force Majeure Event” has the meaning set out in Section 11.
“Pilot Period” means the Pilot Period (if any) set out in the Order Form.
“Other Applications” means any on or offline software application created or provided by Customer’s Component Manufacturers.
“Order Form” means a written order document entered into between NSR and Customer, including a Purchase Order Acknowledgment, or in the case of an accepted quote, an invoice issued by NSR for access to the Services to be provided hereunder. “Personally Identifiable Information” (PII) means any information provided to NSR, by or at the direction of the Customer, in the course of the NSR’s performance under this Agreement, that individually or in combination with other information in the NSR’s possession or control, does, or can identify a specific individual, or from which a specific individual may be identified, contacted or located.
“Software” means the NSR’s proprietary Stellar OS™ platform (“Stellar”), a cloud-based software power monitoring and control platform, that provides power system operators real-time insights into the performance of their systems, enables remote customer meter control and entire system data management and includes, but is not limited to, all updates, revisions, improvements, and modifications of the foregoing that NSR provides remote access to and use of as part of the Services. “Service Capacity” means the service capacity levels as set out in the Order Form.
“Services” means the cloud-based Stellar OS™ Software services provided by NSR and listed in the Order Form, which enable the remote processing of solar-based power system component data and the remote management, operation and control of solar power systems.
“User” means an individual authorized by Customer to use the Services ordered by Customer under the Order Form.
1. SUBJECT MATTER
1.1 The subject matter of this Agreement is the use of the Stellar Software (hereinafter the Software) by the Customer. The Software is the web-based power-system monitoring, control, and management software, used by renewable energy power system operators to streamline, control and optimize the management of their power systems.
1.2 This Agreement regulates all relations between NSR and the Customer regarding the use of the Software.
2. SAAS SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement and pursuant to the applicable Order Form, NSR will use commercially reasonable efforts to provide the Services to the Customer, in accordance with these Terms and Conditions and Service Level Terms set out in Annexure A.
2.2 NSR shall use commercially reasonable efforts to ensure that the Services are available 24 hours a day, 7 days a week, except for in the case of (a) planned downtime, of which the NSR shall give advance notice, or (b) unavailability caused by circumstances beyond NSR’s reasonable control, including a Force Majeure Event, Internet service provider failure or delay, or denial of service attack, or (c) the Exceptions listed in Annexure A ( Service Level Terms).
2.3 Subject to the terms of this Agreement, Order Form, and Customers payment obligations, NSR hereby grants Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable right to access and use the Services in accordance with the Agreement.
2.4 As part of the registration process, Customer will identify an administrative user name and password for Customer’s NSR account. The person opening the account, represents that he/she has the legal authority to bind the Customer to the terms of this Agreement.
2.5 The Customer shall gain access to its account and the Services by logging in using its user name and password, and once registered, will be possible to add further users and set User accounts for each User. The Customer is responsible for: a) Keeping any account data, user login and password information, confidential at all times and taking all reasonable actions to avoid any third party gaining access to this information. In this respect “third party” also includes all employees and staff of the Customer that are not designated to use the Services; b) Immediately informing NSR in the case of loss, theft, or other disclosure of the account data or user login and passwords to a third party or in suspicion of misuse of the account data and to immediately change the password; c) Allowing the use of the account data to only designated Users.
2.6 Subject to the terms hereof, NSR will provide Customer with reasonable technical support services at no additional charge, in accordance with the terms set forth in Annexure B. NSR also provides additional fee-based professional services which may be requested by Customer and agreed to by NSR. Such fee-based services shall be provided at NSR’s discretion and may include services such as training and system configuration services. Such services shall be regulated by a separate Professional Services Agreement. 2.7 NSR reserves the right, in its sole discretion, to make changes to the Services that it deems necessary or useful to maintain or enhance the quality, cost efficiency, or delivery of Services, or to comply with applicable law.
2.8 NSR may directly or indirectly suspend, terminate or otherwise deny Customer and its Users or any other person access to or use of all or any part of the Services, without resulting obligation or liability, if a) NSR receives a judicial or government demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires NSR to do so or b) NSR believes, in good faith that Customer or its Users have failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement, or c) Customer or any of its User’s have been, or are likely to be involved in any fraudulent, misleading or unlawful activities. This section 2.8 does not limit any of NSR’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. PILOT PERIOD TRIAL USE OF SERVICES
3.1 If Customer is explicitly granted a Pilot Period trial use for a number of days after registration, as specified in the Order Form, NSR shall provide the Services to Customer at no charge on a limited trial basis for the duration of the Pilot Period, and where applicable, subject to the terms and conditions of a separate pilot agreement.
3.2 Customer shall use the Services during the Pilot Period only for the purposes of testing Service functionalities, and not for operational use.
3.3 Once the Pilot Period is complete, Customer’s Services will be interrupted and account will be deactivated unless Customer elects to continue using the Services for a yearly or quarterly fee based on the level of service provided. Should Customer fail to provide valid payment details or arrange for alternate payment method within three months after the termination of the Pilot Period, this Agreement automatically terminates after the Pilot Period.
3.4 The Services acquired for use during the Pilot Period are provided “AS IS” and NSR does not offer any warranties for such services.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by NSR or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
4.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and NSR’s standard published policies then in effect and all applicable laws and regulations.
4.3 The Software is designed to interoperate with Other Applications. In order for NSR to provide the Services, Customer may be required to obtain access to the Other Applications and may be required to grant NSR access to Customer’s account(s) for the Other Applications. Customer shall be responsible for ensuring continued access to the Other Applications and NSR shall not be responsible for any inaccuracies or failure in the provision of the Services if the provider of the Other Applications ceases to make the Other Applications available for interoperability.
4.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
5. PAYMENT OF FEES
5.1 Unless otherwise provided in the Order Form, the Services are purchased as subscriptions. Customer is entitled to increase or decrease connections during a subscription term. Should Customer elect to increase or decrease connections, NSR shall adjust the Service Fees accordingly, prorated for the portion of that subscription term remaining at the time of adjustment.
5.2 Customer will pay NSR the then applicable fees described in the Order Form for the Services and integration services (if applicable) in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
5.3 NSR reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that NSR has billed Customer incorrectly, Customer must contact NSR no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.4 NSR may choose to bill through an invoice, in which case, full payment for invoices issued must be received by NSR thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.5 NSR fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for paying all Taxes associated with Services purchased hereunder.
5.6 If NSR has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5, NSR will invoice Customer and Customer will pay that amount unless Customer provides NSR with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.7 Customer agrees that purchase of Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by NSR regarding future functionality or features.
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS
6.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of NSR includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data, information and other content, that is collected, downloaded or otherwise received directly or indirectly from Customer to enable the provision of the Services (“Customer Data”).
6.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
7. CUSTOMER DATA, PRIVACY AND INTELLECTUAL PROPERTY
7.1 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is provided to Customer as part of the Services.
7.2 NSR shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with integration services or support, and (c) all intellectual property rights related to any of the foregoing. The foregoing also includes any and all Software performance data and machine learning algorithms, and the results and output of such machine learning. No jointly owned intellectual property is created under or in connection with this Agreement.
7.3 Notwithstanding anything to the contrary, NSR shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, inferences derived from analysis of Customer Data), and NSR will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other NSR offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7.6 Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposures and that, in accessing and using the Software, Customer assumes such risks. NSR offers no representation, warranty, or guarantee that Customer Content will not be exposed or disclosed through errors or the actions of third parties.
7.7 NSR shall have no responsibility or liability for the accuracy of data uploaded to the Software by the Customer and its Users, or integrated with the Software through the software platforms of its Component Manufacturers.
Customer shall indemnify, defend and hold harmless NSR, its officers, directors, employees, agents, successors and assigns, from any and all third party claims, damages, costs (including reasonable attorney’s fees) arising out of the Customers use of the Services in a manner not authorized by this Agreement and/or applicable law, or the Customer, its Users, employees or personnel’s negligence or willful misconduct.
9. WARRANTY AND DISCLAIMER
9.1 NSR shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any integration services in a professional and workmanlike manner.
9.2 Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by NSR or by third-party providers, or because of other causes beyond NSR’s reasonable control, but NSR shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, NSR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, CONTENT AND INTEGRATION SERVICES ARE PROVIDED “AS IS” AND NSR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 10. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NSR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND NSR’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO NSR FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT NSR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. FORCE MAJEURE
In no event will either Party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by circumstances beyond such party’s control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbance, passage of Law or any action taken by a government or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeuere Event continues substantially uninterrupted for a period of 30 (thirty) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
12. TERM AND TERMINATION
12.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form or such other term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term or term specified in the Order Form (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
12.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
12.3 Upon any termination and request by Customer, NSR will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, and thereafter upon Customer request, NSR will delete stored Customer Data.
12.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
13.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.2 This Agreement is not assignable, transferable or sub-licensable by Customer except with NSR’s prior written consent. NSR may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
13.3 Unless expressly specified in this Agreement or Order Form, this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind NSR in any respect whatsoever.
13.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested
13.7 No failure or delay by either party in exercising any right under this Agreement, shall be construed as a waiver of that right.
13.8 This Agreement shall be governed by the laws of the State of California, U.S.A, without regard to its conflict of laws provisions and to the exclusive jurisdiction of the courts of San Francisco, California, U.S.A.
13.9 Customer agrees that NSR may identify it as a recipient of the Services and use Customer’s logo in sales presentations, marketing materials, and press releases, and to develop a brief customer profile for use by NSR on its website, www.newsunroad.com for promotional purposes.
13.10 The Services, Content, and other technology made available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit other users to access or use any Content in a U.S. embargoed country or in any U.S. export law or regulation.
Service Level Terms Service Levels Subject to the terms and conditions of this Agreement, NSR will use commercially reasonable efforts to make the Services available at least 99.5% of the time, measured over the course of each calendar month during the Initial Service Term (each calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” shall mean the Services are available for access and use by Customer over the Internet and operating in material accordance with the Services. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Users to access or use the Services that is due, in whole or in part, to any
a) access to or use of the Services by Customer or its Users, or using Customers user credentials in a manner that does not comply with this Agreement or the Services;
b) Customer Failure;
c) failure in Customer’s internet connectivity;
d) Force Majeure Event;
e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by NSR pursuant to this Agreement;
f) Scheduled Downtime; or
g) disabling, suspension, or termination of the Services pursuant to Section 2.8.
Service Level Remedies In the event of a Service Level Failure, NSR shall credit Customer 5% of the monthly Service fees for each period of 30 or more consecutive minutes of downtime beyond the Availability Requirement (each a “Service Credit”), subject to the following:
a) NSR shall have no obligation to issue any Service Credit and Customer will forfeit the right to receive Service Credits unless (i) Customer reports the Service Failure to NSR immediately on becoming aware of it, and (ii) requests that Service Credit in writing within 24 hours of the Service Level Failure;
b) Service Credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event;
c) NSR will only apply a credit to the month in which the incident occurred.
d) NSR’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of NSR to provide adequate service levels under this Agreement.
NSR will use commercially reasonable efforts to give Customer at least 24 hours prior notice of all scheduled maintenance and outages of the Services (“Scheduled Downtime”). Data Back-Up The Services do not replace the need for Customer to maintain regular data back-ups or redundant data archives. NSR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
Support Terms NSR will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of U.S Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org.
NSR will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days
Personally Identifiable Information and Processing Purposes
In the course of using the Services, Customer may provide PII such as names, date of birth, phone numbers, email address, home address, and meter location of their customers and Users.
The Customer retains control of the PII and bears the sole responsibility for compliance obligations under all applicable federal, state, and foreign laws and regulations relating to the processing, protection, or privacy of the Personal Information in any relevant jurisdiction (the “Privacy and Data Protection Requirements”), including providing any required notices and obtaining any required consents, and for the processing instructions it gives to NSR. Customer shall have the sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired the Personal Information.
NSR will promptly comply with any Customer request or instruction requiring NSR to amend, transfer, or delete the Personal Information, or to stop, mitigate, or remedy any unauthorized processing unless such action would violate NSR’s privacy and data protection obligations. NSR will promptly notify the Customer if, in its opinion, the Customer’s instructions would not comply with NSR’s privacy and data protection obligations.
NSR will reasonably assist the Customer with meeting the Customer’s compliance obligations under the Privacy and Data Protection Requirements, taking into account the nature of NSR’s processing and the information available to NSR.
NSR will promptly notify the Customer of any changes to Privacy and Data Protection Requirements that may adversely affect NSR’s performance of the SAAS Agreement.
The Customer acknowledges that NSR is under no duty to investigate the completeness, accuracy, or sufficiency of any specific Customer instructions from authorized persons or the PII other than as required under the Privacy and Data Protection Requirements.
NSR will limit access to PII to:
(a) are informed of the PII’s confidential nature and use restrictions;
(b) have undertaken training on the Privacy and Data Protection Requirements relating to handling PII and how it applies to their particular duties; and
NSR will take reasonable steps to ensure the reliability, integrity, and trustworthiness of all of NSR’s employees with access to the PII.
NSR will make reasonable efforts to implement appropriate technical and organizational measures designed to safeguard PII against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage.
NSR will take reasonable precautions to preserve the integrity of any PII it processes and to prevent any corruption or loss of the PII.
Security Breaches and Personal Information Loss.
NSR will promptly notify the Customer if any PII is lost or destroyed or becomes damaged, corrupted, or unusable. NSR will restore such PII at its own expense.
NSR will within 24 hours notify the other party if it becomes aware of:
(a) any unauthorized or unlawful processing of the PII; or
(b) any Security Breach.
Immediately following any unauthorized or unlawful PII processing or Security Breach, the parties will coordinate with each other to investigate the matter. NSR will reasonably cooperate with the Customer in the Customer’s handling of the matter.
NSR will not inform any third party of any Security Breach without first obtaining the Customer’s prior written consent, except when law or regulation requires it. NSR agrees that the Customer has the sole right to determine:
(a) whether to provide notice of the Security Breach to any Data Subjects, regulators, law enforcement agencies, or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.
Complaints, Data Subject Requests, and Third Party Rights.
NSR must notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates to the PII processing or to either party’s compliance with the Privacy and Data Protection Requirements.
NSR will notify the Customer within 7 working days if it receives a request from an individual who is the subject of PII (a “Data Subject”) for access to their PII.
Term and Termination.
(a) the SAAS Agreement remains in effect; or
(b) NSR retains any PII related to the SAAS Agreement in its possession or control (the “Term”).
If a change in any Privacy and Data Protection Requirement prevents either party from fulfilling all or part of its SAAS Agreement obligations, the parties will suspend the processing of PII until that processing complies with the new requirements. If the parties are unable to bring the Personal Information processing into compliance with the Privacy and Data Protection Requirement within 30, they may terminate the SAAS Agreement upon written notice to the other party.
Data Return and Destruction.
At the Customer’s request, NSR will give the Customer a copy of or access to all or part of the Customer’s PII in its possession or control in the format and on the media reasonably specified by the Customer.
On termination of the SAAS Agreement for any reason or expiration of its term, NSR shall securely destroy or, if directed in writing by the Customer, return and not retain, all or any PII related to this agreement in its possession or control.
If any law, regulation, or government or regulatory body requires NSR to retain any documents or materials that NSR would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. NSR may only use this retained Personal Information for the required retention reason or audit purposes.
NSR will certify in writing that it has destroyed the Personal Information within 7 days after it completes the destruction.