This Data Act addendum (“Addendum”) amends the agreement (“Agreement”) between Zesty Tech Ltd. and its affiliates or subsidiaries (“Zesty” or “Company”) and the licensee, user, customer, client (interchangeably, defined herein as “Customer”). This Addendum applies solely to the provision of Data Processing Service identified in Annex A, to Customers who are headquartered in the European Union and are subject to Regulation (EU) 2023/2854 of the European Parliament and of the Council on harmonized rules on fair access to and use of data (“Data Act“).
This Addendum sets out the rights and obligations pursuant to Chapter VI of the Data Act and forms an integral part of the Agreement. Capitalized terms not defined herein have the meanings ascribed in the Agreement or the Data Act. This Addendum will be deemed accepted by the Customer by (1) clicking a box indicating acceptance, (2) acknowledging acceptance of this Addendum in a separate document, or (3) by referencing or incorporating the Addendum into the Agreement. Customers agree that this Addendum is incorporated by reference into their Agreement with Zesty.
In the event of any conflict between this Addendum and any other contractual terms or documents, this Addendum shall prevail with respect to the matters it addresses.
1. DEFINITIONS
“Customer Data and Assets” means any and all data, information, metadata, including directly or indirectly generated, or cogenerated as part of the Data Processing Service, and as further defined in the Agreement as Customer Content.
“Exportable Data” means any part of the Customer Data and Assets that can be extracted under this Addendum and do not contain Zesty’s intellectual property rights, trade secret, technology, insights, predictions, or otherwise includes Usage Data (as defined in the Agreement).
“Provider” shall refer to a Data Processing Provider other than the Company.
“Switching” as defined in Art. 2(34) Data Act, means the process of extracting, transforming and uploading the Customer Data and Assets and transferring it to a Provider, or on-premises ICT, all subject to the Switching Request.
2. REQUEST PROCESS
2.1. Customer may request at any time during a Term, with a 2-month notification period (“Notice Period”), either to : (a) switch and migrate the applicable Exportable Data to a different third party service provider or to its own on-premises infrastructure, including the location, destination and applicable technical specifications (“Switching Request”); or (b) delete the Exportable Data (“Deletion Request”).
2.2. The Switching Request or Deletion Request shall be provided in the format attached herein as Annex B and sent to: support@zesty.co.
3. DELETION PROCESS
3.1. Zesty will support a Customer’s Deletion Request to the extent permitted by applicable law, by deleting the Exportable Data in accordance with the procedures and timeframes specified in the Agreement, however no later than within the Notice Period.
4. SWITCHING PROCEDURE
4.1. Upon the Company’s receipt of the Switching Request, Zesty shall provide the Customer with written instructions and any related Documentation to enable the Customer to technically and independently switch and migrate the applicable Exportable Data to a different third party service provider or to the Customer’s own on-premises infrastructure.
4.2. If required, (a) Company shall provide reasonable assistance to Customer (“Switching Assistance“); (b) maintain business continuance and provision of the Services in accordance with the Agreement (subject to Customer’s continuance of payment), including by maintaining security levels as provided under the Agreement; and (c) provide Customer with needed information to conduct the Switching.
4.3. Company hereby informs Customer that the following Services and data sets are explicitly exempt from the Switching procedure (“Excluded Services and Data“):
- 4.3.1. Usage Data, and any data or information owned or developed by Company, including Insights, predictions, and complex analytics generated through proprietary algorithms, that includes Company’s trade secrets, or exposure of Company’s trade secrets or intellectual property.
- 4.3.2. Evaluation Products as defined in the Agreement, or other limited services.
- 4.3.3. Static technical information (actual documents not generated by the Service, such as manuals, instructions, invoices).
- 4.3.4. Services or features that could reasonably risk or harm the Service continuity.
- 4.3.5. If most Services provided to Customer are custom built, include specifications developed specifically for the Customer (which are not provided in a broad commercial scale) or any Service provided by using Professional Services, to the extent applicable.
4.4. Customer shall promptly notify Zesty in writing upon completion of a successful Switching, Customer is responsible for testing and validating the Switching prior to providing confirmation. To the extent Customer did not provide confirmation and Zesty requests written confirmation, if Customer fails to provide such confirmation within ten (10) business days, Zesty may deem the Switching was successful (“Completion Date“).
4.5. To the extent applicable and technically feasible, Customer may request Zesty to retain the Exportable Data for up to thirty (30) days following the Completion Date (“Retrieval Period“). Customer shall continue to pay all charges in accordance with the Agreement during any Retrieval Period. Upon expiration of the Retrieval Period, Zesty reserves the right to delete Exportable Data, subject to its standard data deletion practices, except as required under applicable laws.
5. TERMINATION
5.1. Support Services. Subject to Customer’s compliance with the payment obligations under this Agreement and the applicable Order, Customer will be entitled to receive the Support Services.
5.2. Professional Services. Company is not obligated to provide any Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work to this Agreement (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference. To the extent of any conflict between the terms and conditions of this Agreement and a Professional Services SOW, the former shall prevail, unless and to the extent that the Professional Services SOW expressly states otherwise.
5.3. General. Services will be performed by Company, its Affiliates, and/or Channel Partners (if applicable), and are provided for the benefit of Customer only. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Services (in whole or in part) to a third party contractor, and Company shall remain primarily responsible for such contractor’s performance of the Services. Unless expressly agreed otherwise in writing, Services shall be carried out remotely, and any physical attendance at Customer’s offices or other locations requested by Customer, if agreed to by Company, shall be charged at Company’s then-current rates, and Company shall also be entitled to reimbursement for travel and lodging costs and expenses incurred.
6. PAYMENT
6.1. To the extent applicable, and to the extent the Switching Request accrued prior to January 12, 2027, Company reserves the right to charge costs of reasonable Switching Assistance subject to the Professional Services rates set out in Annex C attached herein.
6.2. Each invoice will be due and payable upon receipt by Customer, including the current subscription fees and, if applicable, early termination fees as set out in Annex C, unless otherwise specified in the Agreement.
7. PARTIES OBLIGATIONS
7.1. The Parties shall cooperate in good faith to facilitate the Switching procedure, ensure timely transfer of data, and maintain the continuity of the Data Processing Service.
7.2. As between the Parties, Customer is responsible for the importing of the Exportable Data and Digital Assets on its own systems or on the Provider’s systems.
7.3. The obligations, including confidentiality obligations, arise from the Agreement shall stay in full force and effect during the Switching procedure.
7.4. It is Customer’s sole responsibility to ensure that Customer has all rights and permissions concerning the Switching or the Deletion Requests and Exportable Data before exercising its rights hereunder. Customer assumes full responsibility for the successful Switching or deletion, on impacted parties, such as Users, employees and Customer Affiliates (collectively, “Impacted Parties”) and shall indemnify Zesty against any claim, demand, suit or proceeding made or brought against Zesty by Impacted Parties alleging that the Switching or Deletion Request infringes such Impacted Party’s rights or licenses.
7.5. In no event shall Zesty or its affiliates have any liability to Customer or an Impacted Party, under this Addendum for any damages, losses, costs, or expenses arising out of or in connection with the Switching or the Deletion Request. This exclusion of liability includes, but is not limited to, any issues related to Exportable Data integrity or loss, system downtime, compatibility issues, or any other disruptions or failures that may occur during or as a result of the Switching or the Deletion Request.
Annex A
Data Processing Service
CUR data processing.
*The Data Processing Service shall not be deemed to include any Professional Services as defined in the Agreement, any on-prem integration or solutions uniquely provided.
Annex B – Request Formatting
Switching Request
[Date]
To: [Company name and address for communications]
Customer Contact Information: [Name], [Email]
Customer Authorized Representative Information (if applicable): [Name], [Email]
Agreement: [name and details of Agreement]
Switching Option:
Data Processing Provider other than the Company
New Provider Name: […]
New Provider Contact Information: […]
On-premises ICT infrastructure
Preferred Exportable Data: […]
Destination and technical specifications for new Provider/ Customer on-premises infrastructure: […]
[Signature of Customer’s authorized representative]
Deletion Request
[Date]
To: [Company name and address for communications]
Customer Contact Information: [Name], [Email]
Customer Authorized Representative Information (if applicable): [Name], [Email]
Agreement: [name and details of Agreement]
Preferred Exportable Data: [All Exportable Data covered by the Agreement] or [provide explicit Exportable Data subject to deletion]
Preferred Deletion Date: […]
[Signature of Customer’s authorized representative]
Annex C – Fees
The charges to be paid by the Customer for Switching-related services provided by the Company are as follows:
Service Type | Unit | Rate |
Standard data extraction (per request) | Fixed fee | $500 |
Migration support services | Fixed fee | $500 |
Extended storage beyond Retrieval Period | Per month | $500 |
Custom export scripting | Per hour | $500 /hour |
In the absence of a specific rate for any of the Switching-related services, a default rate of $500 per hour shall apply.
*Valid until 12 January 2027
Should the Customer choose to exercise its switching right under the EU Data Act, the following termination fees will apply for the remainder of the then-current subscription term:
1. Fixed Fee: The Customer must pay the monthly fixed fee multiplied by the number of months remaining until the termination date of the current subscription term.
2. Variable Fee: The Customer must pay an amount equal to the average of the fees paid to Zesty during the last three months of the subscription, multiplied by the number of months remaining until the termination date of the current subscription term.
