License Options Data Processing Addendum Xtuple Open

1. License Options Data Processing Addendum Xtuple Open

The, which are applicable to any Hosted Services (as defined below), and the, which are applicable to any On-Premise licenses (as defined below), together with the and the, is a legal agreement between You and SmartBear (as defined below) that governs your access to, and use of, our Hosted Services and/or Software, whether purchased directly from SmartBear or a Reseller (collectively, the “EULA” or the “Agreement”). BY ACCEPTING THIS AGREEMENT, EITHER BY (1) CLICKING A BOX INDICATING YOUR ACCEPTANCE OR (2) EXECUTING A QUOTE OR ORDER, OR MAKING A PAYMENT AGAINST AN INVOICE OTHER SIMILAR DOCUMENT, THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. You may not access the Services if You are a competitor of SmartBear, except with Our prior written consent.

SmartBear Hosted Services Terms of Use 1. 'Affiliate' means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; for purposes hereof, 'control' means possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of an entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, control will be presumed to exist when an entity (a) owns or directly or indirectly controls fifty percent (50%) or more of the outstanding voting stock or other ownership interest of the applicable entity or (b) possesses, directly or indirectly, the power to elect or appoint fifty percent (50%) or more of the members of the applicable entity’s governing body. “Data” means (i) content, materials, or other information You post or otherwise submit to the Services; (ii) metadata or other information that is collected by virtue of your interaction with the Services; (iii) information You provide to SmartBear in connection with support activities, including file or screen sharing; and (iv) license and/or product usage data transmitted to SmartBear, at the time of registration, use or update. “Documentation” means the published and generally available on-line user and administrator materials SmartBear delivers or makes available with the Services, including on-line help, as updated from time to time.

“Hosted Services” means the services provided by SmartBear through which it makes the Software available to you as a service (SaaS) and hosted by SmartBear or its authorized third-party provider(s). “Maintenance and Support” mean those technical support and related services provided by SmartBear as set forth at.

'Order' means SmartBear’s online purchase order, quote or other document for placing orders entered into between You and SmartBear, which identifies the Services (including the applicable SmartBear product(s), license type, license model (duration or usage-based), quantity/term) ordered by You and any required access information. Any Order that has been accepted by SmartBear shall be deemed incorporated herein by reference. “Reseller” means an authorized reseller or distributor who may sell the Services to You.

'Software' means the SmartBear software provided as part of the Services pursuant to the applicable Order, and all Updates, in each case, access to which is provided by SmartBear. “Services” means the Hosted Services, together with Maintenance and Support, as provided to you during the Subscription Term based on the applicable Order. “Subscription” means Our grant of the right to access and use the Software through the Services for the period of time or usage-based limit set forth in the Order (the “Subscription Term”). “Update” means any subsequent release of the Software that SmartBear generally makes available to its SaaS customers as part of the Services; Updates do not include any Software that is marketed and priced separately by SmartBear as part of the Services.

The lessor license is required, under the terms of a lease agreement, to give another person the right to possess and use a motor vehicle. Franchised dealers do not have to apply for a separate lessor license to be able to lease the vehicles they are licensed to sell. If your Estimate/Order Form with Oracle for the NetSuite services was placed before April 16, 2018 and incorporates in the NetSuite Data Processing Addendum, then the April 2017 version of the Data Processing Addendum below applies to your orders unless it is otherwise specified in this Data Processing Addendum, the Estimate/Order Form, the. DATA PROCESSING ADDENDUM. Tax, drivers license or other government-issued identification numbers, (iii) health information identifiable to a particular individual; or (iv) any. Option a work with Subscriber to address Subscribers reasonable objections and thereafter.

“User” means an individual who is authorized by You to use the Services in accordance with this Agreement and the applicable license type set forth herein, and who has been supplied usage credentials. A User may include, but is not limited to, your employee, consultant, contractor and any agent with which You transact business.

“You” or “Company” means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity. If You acquire access to, and use, the Services from in the United States or Canada, “We”, “Us”, “Our” or “SmartBear” means SmartBear Software Inc., a Delaware corporation with its principal place of business at 450 Artisan Way, Somerville, MA 02145. If You acquire access to, and use, the Services from outside of the United States or Canada, “We”, “Us”, “Our” or “SmartBear” means SmartBear (Ireland) Limited with its principal place of business at Mayoralty House, Flood Street, Galway, Ireland. Free Trial Version. If You register for a free Subscription trial, SmartBear will make the applicable Services available to You on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which You registered or ordered the applicable Services. The Trial Version may be used only to review evaluate and demonstrate, for Your internal purposes; the Services and may have limited features. The Trial Version may cease operating after the applicable time period or number of uses based on an internal metering mechanism within the Trial Version itself.

Regardless of any such metering, You must stop use of the Services at the end of such period or number of uses. You shall not (a) access or use the Trial Version of the Services under more than one username, (b) disclose the results of performance benchmarks obtained using the Trial Version to any third party without SmartBear’s prior written consent, (c) use the Trial Version for any commercial training or any application deployment or ultimate production purpose, or (d) use the Trial Version other than for the sole purpose of determining whether to purchase a license to access and use the Services. ANY DATA YOU ENTER INTO A TRIAL VERSION, AND ANY CONFIGURATIONS MADE TO THE TRIAL VERSION BY OR FOR YOU DURING ANY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A LICENSE TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 16 (LIMITED WARRANTY; REMEDIES), DURING A FREE TRIAL, THE TRIAL VERSION AND ANY APPLICABLE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY AND SMARTBEAR HAS NO RESPONSIBILITY FOR DATA RETENTION OR RESULTS FROM TRIALS.

Services Grants. Subject to the terms of this Agreement and during the Subscription Term, SmartBear grants You a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Services, Documentation, and, if any, associated media and materials, and, if applicable, third party software programs supplied by SmartBear solely (i) to access and use the Services as listed in the applicable Order and (ii) for Your internal business purposes. You may access and use the Services as permitted by the license type purchased, which license type is (i) specified in the applicable Order and (ii) subject to the further terms below applicable to the relevant product. License Types. The license granted in Section 4 are subject to all terms and conditions set forth in this Agreement, including the following applicable terms (as specified in the applicable Order): Single (Named) Licensee: all Services licensed under these terms are single licensee, meaning it can be activated by only one User, with a unique username and password. Access to the Services may not be reassigned other than for the permanent transfer of the access license to the Services to another User if the eligible User is no longer employed by You.

An eligible User may access the Services with a unique username and password on one device at a time. Floating (Concurrent) License: all Software licensed under these terms can be activated for different users and machine combinations, but only one at a time and has a floating license key. The number of running instances of the Software or the number of individuals simultaneously having access to the Software may not exceed at any one time the number of floating seats licensed. One computer or computing device shall be designated as the “license server”, where the license is installed, and all other devices will require access to the license server to run the Software.

Usage-Based License: access to the Services licensed under these terms is (i) licensed on a time-based or unit-based basis during the Subscription Term as set forth in an Order and (ii) restricted to a computer or computing device, which is applicable to the AlertSite and VirtServer products. Freeware or Free Version License: all Services licensed under these terms are licensed to an individual User who is specifically named in the Services registration and may only be used on one computer or computing device at a time. These licenses are not eligible for Maintenance and Support other than the materials and discussion groups that may be accessed generally via the SmartBear online community at. License Restrictions. Your use of the Services is limited to the number of units, duration and such other usage restrictions as are set forth on an Order and herein. SmartBear and its licensors and suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to You hereunder, and retain all rights, title and interest in and to the Services.

“ Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law. For the purposes of these Data Processing Addendum, Company shall be considered the Controller. SmartBear, however, reserves the right to Process as a Controller anonymized, de-identified, or otherwise obfuscated information, including metadata and aggregated data, for research and analytics and to support and improve the Services or Software. “ Personal Data” means any information relating to an identified or identifiable natural person (also referred to herein as a “ Data Subject”) that is Processed by SmartBear on behalf of Company pursuant to the terms of the Agreement. Unless otherwise specified by applicable law, hashed, anonymized, encrypted or otherwise obfuscated or de-identified IP addresses and email addresses, device IDs, or machine IDs, or other similarly obfuscated data, and city, regional or country level geo-location information, shall not be deemed to be Personal Data under these Data Processing Addendum.

“ Sensitive Data”: Company is solely responsible for obtaining all required consents for Processing any special categories of data or sensitive data. The SmartBear Services and Software are designed to be for general use. They are content-neutral and are not designed to meet the requirements for sensitive data such as classified military or defense information, law enforcement data, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation or any other data deemed to be sensitive by Company or applicable law. European Data: If Personal Data is transferred under the Agreement from the European Economic Area or Switzerland by Company as controller to SmartBear as Processor, or otherwise by SmartBear as Processor, to a jurisdiction which the European Commission or, where relevant, the Swiss Federal Data Protection and Information Commissioner, has determined does not ensure an adequate level of protection of Personal Data, then SmartBear will subscribe to an appropriate legal instrument for the international transfer of data (such as the EU-U.S. Privacy Shield Framework) or take such other measures as may be required under applicable Data Protection Laws and Regulations. SmartBear will inform Company of any new Subprocessor who, to SmartBear’s actual knowledge, will be Processing Personal Data of Company and who is engaged during the term of the Agreement by updating the URL or Customer portal or account information or by email before the new Subprocessor processes Company Personal Data.

If Company can reasonably show that the appointment of a new Subprocessor will have a material adverse effect on SmartBear’s ability to comply with applicable Data Protection Laws and Regulations, then Company must promptly notify SmartBear in writing within fifteen (15) business days thereafter of its reasonable basis for objection to the use of a new Subprocessor. Upon receipt of Company’s written objection, Company and SmartBear will work together without unreasonable delay to recommend an alternative arrangement. If the following conditions apply: a) a mutually acceptable and reasonable alternative arrangement is not found; b) Company has a termination right under applicable Data Protection Laws and Regulations, and c) Company has provided prompt written notice under this Section, then Company may terminate the Service Agreement only with respect to those services that cannot be provided by SmartBear without the use of the new Subprocessor. Unless prohibited by applicable Data Protection Laws and Regulations, in the event of such early termination by Company, SmartBear can retain or require payment for Services or Software through the end of Company’s current contract term for the terminated services. To the extent Company does not have the ability to access Personal Data to correct, amend, delete it, refrain from Processing it, or provide it in portable form, upon request from a Data Subject (to the extent that such Data Subject is entitled to such rights under applicable Data Protection Laws and Regulations) in connection with the SmartBear Service, SmartBear will assist Company with any reasonable request to do so. If a Data Subject should apply directly to SmartBear to request access to, correction or deletion of Personal Data in connection with the services provided to Company by SmartBear, SmartBear will promptly notify Company of the request and will provide Company with reasonable assistance in processing any such request.

If required by applicable Data Protection Laws and Regulations, then, upon reasonable notice (not less than thirty (30) days in advance) and at mutually agreed times no more than once per year, SmartBear shall provide to Company, its authorized representatives, and/or independent inspection body designated by Company (i) access to records of SmartBear’s Processing of Personal Data; and (ii) reasonable assistance and cooperation of SmartBear 's relevant staff for the purpose of auditing SmartBear's compliance with its obligations under this Agreement. SmartBear reserves the right, in its sole discretion, to restrict access to its proprietary information, including but not limited to its network architecture, internal and external test procedures, results and remediation plans.

Company will use best efforts to minimize disruption to the SmartBear Service or business operations. Company further agrees that (i) personnel (or designated third parties) performing said audits will be bound by confidentiality obligations; (ii) all findings will be deemed SmartBear’s Confidential Information; (iii) Company will share all findings with SmartBear; and (iv) SmartBear will classify and remediate findings in accordance with its risk management program. Taking into account the nature of the Processing and the information available to SmartBear, SmartBear shall, upon Company’s written request, provide Company with reasonable cooperation and assistance needed to fulfil Company’s obligations under applicable Data Protection Laws and Regulations to carry out a data protection impact assessment related to Company’s use of the SmartBear Services or Software. Such cooperation and assistance is provided to the extent Company does not otherwise have access to the relevant information, to the extent such information is available to SmartBear, and that it will not compromise the security of SmartBear’s systems or the data of other SmartBear customers. To the extent required by applicable Data Protection Laws and Regulations, SmartBear shall provide reasonable assistance to Company in respect of Company’s prior consultations with the Supervisory Authority.

If required by applicable Data Protection Laws and Regulations, in the event that SmartBear is unable to comply with its obligations stated in these Data Processing Addendum, SmartBear shall promptly notify Company, and Company may take any one or more of the following actions: (i) suspend the transfer of Personal Data to SmartBear; (ii) require SmartBear to cease Processing Personal Data; or (iii) demand the return or destruction of Personal Data. Unless Company has additional rights or remedies under applicable law, this is the full extent of Company’s remedies.

Upon termination or expiration of the Agreement or these Data Processing Addendum, or at any time at Company’s reasonable written request, SmartBear shall: return to Company or destroy all Personal Data, except that, to the extent permitted by applicable Data Protection Laws and Regulations, SmartBear may retain a copy of any Personal Data (or permitted portion thereof) for SmartBear’s business records (including for billing and auditing purposes), for research, analysis and support purposes, and as otherwise required for compliance with applicable Data Protection Laws and Regulations.

XTuple Data Processing Addendum (DPA) This Data Processing Addendum (“Addendum”), effective May 25, 2018, forms part of any agreement, including terms and conditions or Terms of Use (“Agreement”) by and between the organization signing or accepting below (“Data Controller”) and OPENMFG,LLC d/b/a xTuple. (“xTuple”), and sets forth the terms and conditions relating to the parties obligations to protect EU Personal Data associated with services rendered by xTuple to Data Controller pursuant to the Agreement. All terms defined or used in the Agreement shall have the same meaning in this Addendum unless otherwise specified. Whereas Data Controller may provide xTuple, a company located in the United States, with access to personally identifiable information about European Economic Area individuals to act as a Processor in connection with services performed by xTuple for or on behalf of Data Controller pursuant to the Agreement; Now therefore, good and valuable consideration, the sufficiency of which is hereby acknowledged, Data Controller and xTuple agree as follows: SECTION I — DEFINITIONS 1. “Controller” means any person or organization that, alone or jointly with others, determines the purposes and means of the Processing of EU Personal Data. “EU Personal Data” means personally identifiable information about individuals located in the European Union and may include, but not limited to, the following: (i) categories of data subjects: customers, vendors, or employees and (ii) types of personal data: names, telephone numbers or email addresses. “GDPR” means the European Union General Data Protection Regulation.

“Process(es)” or “Processing” of EU Personal Data means any operation or set of operations that is performed on EU Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure or dissemination, and erasure or destruction. “Processor” means any natural or legal person, public authority, agency, or other body that Processes EU Personal Data on behalf of Controller. SECTION II — PRIVACY, CONFIDENTIALITY, AND INFORMATION SECURITY 1. Authority to Process EU Personal Data (a) Data Controller and xTuple agree that Data Controller is the Controller and xTuple is the Processor of EU Personal Data, except in those instances when Data Controller is a Processor, in which case xTuple is a subprocessor.

(b) These Addendum terms do not apply where xTuple is a Controller of EU Personal Data. (c) xTuple will Process EU Personal Data only with Data Controller’s written instructions and solely for the following purposes, (a) on behalf of and for the benefit of Data Controller in connection with the Agreement; and (b) to carry out its obligations pursuant to this Addendum, the Agreement, and (c) as required by applicable law.

License Options Data Processing Addendum Xtuple Open

(d) Data Controller will have the exclusive authority to determine the purposes for and means of Processing EU Personal Data. (e) This Addendum and the Agreement are Data Controller’s complete instructions to xTuple for the Processing of EU Personal Data. All additional instructions shall be made as a written amendment to this Addendum signed by both parties. Disclosure of and Access to EU Personal Data (a) xTuple will hold all EU Personal Data in confidence.