DATA  ACT CLOUD
SWITCHING ADDENDUM
 

Background

The parties have entered into an agreement regarding the Customer's access via the Internet to software (SaaS) provided by Quanos Solutions GmbH, Hugo-Junkers-Str. 15-17, 90411 Nuremberg, Germany (hereinafter "Quanos"), hereinafter "Main Agreement").

As a provider of data processing services, Quanos is subject to certain legal requirements under Regulation (EU) 2023/2854 of the European Parliament and of the Council of December 13, 2023, on harmonized rules on fair access and use of data (hereinafter "Data Act"). In particular, the Data Act obliges the provider of data processing services to provide the Customer with certain contractual clauses governing the conditions for the Customer to switch to other providers of such services or, where applicable, to an on-premises ICT infrastructure.  

In order to comply with the requirements applicable under the Data Act for contracts between the Customer and the provider of data processing services, the following contractual terms and conditions of this Data Act Cloud Switching Addendum (hereinafter "Addendum") shall apply between the parties. In the event of any conflict between the provisions of the Addendum and the Main Agreement, the provisions of this Addendum shall prevail.

1 SWITCHING DATA PROCESSING SERVICES

1.1
At the Customer's request, Quanos shall enable the Customer, in accordance with this Addendum, to switch immediately, but no later than within 30 calendar days after the expiry of the notice period specified in Section 1.2 (hereinafter "Transition Period") to switch to a data processing service offered by another data processing service provider or to port all exportable data and digital assets to an on-premises ICT infrastructure (hereinafter "Switching").

1.2
The Customer shall notify Quanos in writing of the Switching request two months before initiating the Switching (hereinafter “Switching Notification”). The Switching Notification shall include information which is required in order to enable Quanos to prepare for the Switching, including information about the data affected by the Switching Notification, as well as information about the destination of the data (the Customer's local ICT infrastructure or a third-party provider), and relevant technical specifications for such destination.

1.3
If the Switching is not technically feasible within the maximum transition period specified in Section 1.1, Quanos shall notify the Customer thereof within 14 working days as of Quanos’ receipt of the Switching Notification. Quanos shall duly justify the technical infeasibility and indicate the alternative transition period, which may not exceed seven months (hereinafter "Alternative Transition Period").

1.4
The Customer is entitled to extend the Transition Period or the Alternative Transition Period once by a period that it deems more appropriate for its own purposes (hereinafter "Extended Transition Period").

1.5
Quanos shall, within the Transition Period or an Alternative Transition Period or Extended Transition Period

1.5.1
provide the Customer and third parties authorized by the Customer with reasonable assistance in the Switching Process;

1.5.2
act with due care to maintain business continuity and continue the provision of the functions or services under the Main Agreement;

1.5.3
clearly inform the Customer of any known risks to continuity in the provision of the functions or services on the part of Quanos; and

1.5.4
ensure a high level of security is maintained throughout the Switching process, in particular the security of the data during their transfer and the continued security of the data during the retrieval period specified in Section 3 in accordance with applicable Union or national law.

1.6
Quanos is obliged to support the Customer's exit strategy relevant to the contractually agreed services, including by providing all relevant information, e.g., information on procedures for initiating the change of data processing services, the machine-readable data formats into which user data can be exported, the tools for data export — including open interfaces — and information on compatibility with harmonized standards or common specifications based on open interoperability specifications, information on known technical limitations and restrictions that could affect the completion of the Switching, and the estimated time required to complete the Switching.

2. LIST OF TRANSFERABLE DATA AND ASSETS AND LIST OF EXCLUDED DATA CATEGORIES

2.1
Appendix 1 to this Addendum contains an exhaustive specification of all categories of data and digital assets that can be ported during the Switching process, including all exportable data. This includes input and output data, including metadata, that is generated directly or indirectly through the Customer's use of the data processing service or jointly, except for assets or data belonging to Quanos or third parties that are protected by intellectual property rights or constitute trade secrets, provided that such exemptions do not impede or delay the transfer of the Customer's exportable data and digital assets.

2.2
Appendix 1 to this Addendum provides an exhaustive list of data categories specific to the internal functioning of Quanos' data processing service and excluded from the exportable data as defined in Section 2.1 above.

3. MINIMUM PERIOD FOR DATA RETRIEVAL

Quanos will allow the Customer to retrieve the data affected by the Switching for a period of 30 calendar days after the Transition Period, Alternative Transition Period, or extended Transition Period (hereinafter "Retrieval Period").

4 TERMINATION OF MAIN AGREEMENT

The Main Agreement shall be deemed terminated once the Switching has been successfully completed. Quanos will inform the Customer of the successful completion of the Switching.

5. DATA DELETION

After the end of the Retrieval Period or after the end of an agreed alternative period at a later date, Quanos will fully erase all exportable data and digital assets that are generated directly by the Customer or relate directly to the Customer, provided that the Switching process has been completed successfully.

6 TRANSFER FEES

Quanos will charge the Customer the Switching charges specified in the individual contract for the support services provided in connection with a Switching until January 12, 2027. If no Switching charges are specified in the individual contract, no Switching charges will be charged. 

6.1
Switching charges means charges, other than standard service fees or early termination penalties, that Quanos charges the Customer for the actions mandated by the Data Act for switching to the system of a different provider or to on-premises ICT infrastructure. Switching fees include, without limitation, costs charged to the Customer for extracting Customer’s data through the network from the ICT infrastructure of a provider of data processing services to the system of a different provider or to on-premises ICT infrastructure ("data egress charges") or costs for specific support services during the Switching process. The amount of Switching charges will not exceed the costs incurred by Quanos that are directly linked to the Switching process concerned. The possibility of charging data egress charges after January 12, 2027, in accordance with Section 34 (2) of the Data Act, remains unaffected by this.

7 NOTIFICATION BY THE CUSTOMER

7.1
After the maximum notice period has expired, the Customer may notify Quanos of its decision to take one or more of the following measures:

7.1.1
Switch to another data processing service provider, in which case the Customer shall provide the necessary information about this provider;

7.1.2
Switch to an on-premises ICT infrastructure;

7.1.3
Erasure of its exportable data and digital assets.

8 REFERENCE TO QUANOS WEBSITES

The jurisdiction agreed between the parties, which governs the provision of data processing services, is set out in the Quanos General Terms and Conditions Software as a Service (hereinafter "SaaS GTC") available at quanos.com/agb/software-as-a-service/. The ICT infrastructure of the data processing services may also be subject to the jurisdiction of the registered office of the subcontractors listed in Annex 3 (Subcontracting Relationships) of Exhibit 2 (Data Processing Agreement (Art. 28 (3) GDPR)) of the SaaS GTC. Appendix 2 (Technical and Organizational Measures) of Exhibit 2 (Data Processing Agreement (Art. 28 (3) GDPR)) of the SaaS GTC also contains a general description of the technical, organizational, and contractual measures that Quanos has taken to prevent international government access to or international government transfer of non-personal data stored in the Union if such access or transfer would be contrary to Union law or the national law of the Member State concerned.

9 COMPENSATION FOR EARLY TERMINATION OF MAIN AGREEMENT

9.1
If a Switching results in the termination of the Main Agreement before the end of the agreed term of the Main Agreement, Quanos may charge the Customer an amount corresponding to the fees that would have been payable by the Customer without such termination up to the next possible termination date on the date of receipt of the Switching  Notification by Quanos, less any costs that Quanos would have incurred up to that point but which are no longer incurred due to the early termination (the "Early Termination Fees"). Any increase in future fees that would have been incurred if the Main Agreement had continued without the Switching shall not be taken into account. 

9.2
The Early Termination Fees shall be due and payable upon termination of the Main Agreement in accordance with Section 4 of this Addendum. To the extent that such due date is earlier than the due dates of the fees that the Customer would have had to pay without the Switching, the Early Termination Fees shall be discounted appropriately. If the Customer has already paid fees in advance in accordance with the Main Agreement for the period after the end of the Main Agreement in accordance with Section 4 of this Addendum, the costs that Quanos would have incurred for this period from the performance of the Main Agreement but will no longer incur due to the early termination shall be reimbursed to the Customer.

10 MISCELLANEOUS

10.1
This Addendum is governed by German law, excluding the rules of private international law that would lead to the application of another law.

10.2
The exclusive place of jurisdiction for all disputes arising from or in connection with this Addendum is Nuremberg. Quanos is also entitled to bring legal action at the Customer's place of business or at any other competent court.

10.3
Should individual provisions of this Addendum be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the Addendum.

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