Data Act Addendum

1. Background

1.1 This Data Act Addendum is based on the EU Data Act and attached to the General Terms (available at Aiven General Online Terms and Conditions or Aiven Marketplace Terms and Conditions if the Customer purchases through a marketplace) and forms an inseparable part of the Agreement entered into by Aiven and the Customer with respect to Cloud Services that are deemed as a Data Processing Service as specified in Appendix 1 below (“Eligible Services”). This Data Act Addendum sets out the terms and conditions under which Customer can exercise their Switching rights for Eligible Service(s) under the EU Data Act.

2. Definitions

2.1 Capitalized terms used in this Data Act Addendum but not defined in the Agreement shall have the meaning given to them in the EU Data Act.

3. Switching Rights; Notice, Transition, and Retrieval Period

3.1 The Customer may by a two (2) month’s written notice to Aiven (“Notice Period”) inform of its intention to:

a) Switching to a different provider of Data Processing Services, covering the Same Service Type, including porting the Customer’s Exportable Data and Digital Assets to the different provider of Data Processing Services, in which case the Customer shall provide Aiven with the necessary details regarding the Switching;

b) port the Customer’s Exportable Data and Digital Assets to the Customer’s on-premises ICT infrastructure; or

c) not switch to a different provider of Data Processing Services or to an on-premises ICT infrastructure, but erase the Customer’s Exportable Data and Digital Assets from the Cloud Services.

3.2 The Customer’s request under Section 3.1 (a) or Section 3.1 (b) shall be completed without undue delay and in any case within a thirty (30) day period (“Transition Period”) which starts after expiry of the Notice Period. Expiry of the Transition Period commences a thirty (30) day data retrieval period, during which the Customer may utilize the Switching Tools to retrieve and port their data (“Retrieval Period”). The Customer’s request under Section 3.1 (c) shall be completed by the end of the Notice Period. The Customer’s duly authorized representative shall notify Aiven upon successfully completing the Switching process and in absence of such confirmation provided by the Customer the Agreement, including Fees, will continue on its existing terms.

3.3 Notwithstanding Section 3.2, the Customer acknowledges that Aiven provides Switching Tools (as are described in Section 4) to fulfill the switching process described in Section 3.1. While Aiven is committed to providing the Switching Tools available for the Customer’s use, the actual time for the Customer to complete, via the Switching Tools, the download, transfer, and integration of Exportable Data and Digital Assets may vary depending on factors beyond Aiven's control, including but not limited to the Customer's network bandwidth, IT infrastructure, and amount of Customer’s Exportable Data. If factors outside the direct control of Aiven result in delays on the Customer completing its request under Section 3.1, Aiven shall not be deemed to be in breach of the Agreement.

3.4 Where the Customer’s request under Section 3.1 cannot be completed during the Transition Period due to technical unfeasibility, then Aiven, or the Customer (depending on whether the unfeasibility is due to factors under the Customer’s control), shall notify the other Party within fourteen (14) working days from the Customer’s request and shall duly justify the technical unfeasibility and indicate an alternative Transition Period for up to seven (7) months.

3.5 The Customer shall have the right to extend the Transition Period once (1) for a period that the Customer deems appropriate for its own purposes. In that case, the Customer must notify Aiven in writing of their intention until the end of the original Transition Period and indicate the alternative Transitional Period. Aiven shall confirm the receipt of such extension notice without undue delay.

3.6 During the Notice Period, Transition Period, including an extension to the Transition Period as described above (if any) and Retrieval Period, the Agreement shall remain in force and any Fees shall continue to apply.

3.7 The Customer shall cooperate in good faith to make the switching process effective, enable the timely transfer of data and maintain the continuity of the Data Processing Service. In case of Customer’s request under Section 3.1 (a), the Customer shall be responsible for ensuring that the destination provider cooperates in good faith to make the switching process effective. In addition, the Customer undertakes to take all reasonable measures to achieve effective Switching.

3.8 The Customer is solely responsible for completing its requests under Section 3.1, including by porting its Exportable Data and Digital Assets, by using the Switching Tools made available by Aiven, and for importing and implementing of the Exportable Data and Digital Assets in the Customer’s systems or systems of a third-party destination provider.

3.9 For avoidance of doubt, as set forth in Section 4.4 of the General Terms, Aiven is not obliged to store any data the Customer transmits to the Cloud Services. If the Customer does not use the Switching Tools for porting its Exportable Data and Digital Assets, to fulfill the Customer’s rights described in Section 3.1, Aiven shall delete the data pursuant to Section 12.5 of the General Terms.

4. Aiven’s Obligations; Switching Tools

4.1 Aiven shall support the Customer’s exit strategy by providing the Customer with self-service automated switching tools as the available procedure for switching and porting of Exportable Data and Digital Assets which the Customer may use to fulfill Switching under Section 3.1, as described in more detail in the Appendix 1 (“Switching Tools”).

4.2 Aiven's obligation for the Customer’s request under Section 3.1 is limited to making the Switching Tools available in accordance with the Agreement during the duration of the Customer's active subscription to the applicable Cloud Services. Aiven has no obligation to make the Switching Tools available after the Customer’s subscription has ended.

4.3 During the Transition Period, Aiven shall:

a) provide reasonable assistance to the Customer and third parties authorized by the Customer in the switching process by providing the Customer with relevant information;

b) act with due care to maintain business continuity, and continue the provision of the functions or Services under the Agreement;

c) provide clear information concerning known risks to continuity in the provision of the Services; and

d) ensure that a high level of security is maintained throughout the switching process.

4.4 Aiven shall cooperate in good faith to make the switching process effective, enable the timely transfer of data and maintain the continuity of the Cloud Service.

4.5 Aiven shall delete the Customer’s data uploaded to the Cloud Services as further described in Section 12.5 of the General Terms.

4.6 Aiven is not responsible for ensuring that the Exportable Data and/or Digital Assets are usable to the Customer or a third-party authorized by the Customer after completion of the switching process.

5. Termination of the Agreement based on the EU Data Act

5.1. Should the Customer exercise its rights under the EU Data Act, as described in Section 3.1 above, the Eligible Services shall be deemed terminated, and the Customer shall be notified of such termination:

i) in case of Section 3.1 (a) or Section 3.1 (b) upon the later date of a) successful completion of the Switching process; or b) the Notice Period; or

ii) in case of Section 3.1 (c), at the end of the Notice Period.

6. Early Termination Fee

6.1 Provided that the Parties have agreed on an Order Form for Cloud Services for a fixed term duration with a minimum Fee commitment and the Customer uses its right to terminate the Agreement under the Section 3.1, the Customer shall have an obligation to pay 100% of the unpaid portion of the remaining Fees committed by the Customer for the full duration of the fixed term as an early termination fee.

6.2 Any Fees paid upfront by the Customer are non-refundable and non-cancellable, and the Customer shall not be entitled to a refund.

6.3 Notwithstanding anything contrary, the Early Termination Fee shall become immediately due and payable upon the effective date of termination, and shall survive the termination of the Agreement.

7. Other Terms

7.1 Aiven shall have the right to update this Data Act Addendum at its sole discretion.

7.2 If the EU Data Act is repealed, or if the EU Data Act is materially amended to limit the Customer’s switching rights under the Data Act, then these Data Act Contractual Clauses on Switching and Exit will no longer apply or Aiven may change them as appropriate.

Appendix 1 - Switching Tools and Information

Aiven supports self-service Switching Tools which the Customer may use to port their data off from Aiven Cloud Services that are deemed Data Processing Services subject to the EU Data Act. The Switching Tools, including the categories of Exportable Data, may vary depending on service. The table below provides information, subject to the EU Data Act, with respect to Aiven’s Cloud Services that are Data Processing Services, including information on switching and exit specific to the Data Processing Service in question.

1. Switching Tools; Exportable Data and Digital Assets; Exempted categories of Data and Digital Assets

2. ICT infrastructure jurisdiction

Pursuant to Article 28(1)(a) of the Data Act, Aiven makes information available regarding the locations of ICT infrastructure used for the Data Processing Services. The Customer acknowledges that the Subprocessor and location/region depend on which Subprocessor and region Customer independently selects. Information regarding the locations are available at: https://aiven.io/subprocessors.

Subject to the Article 28(1)(b) of the Data Act, if a governmental body sends Aiven a demand for the data input into the Cloud Services, Aiven will do its best efforts to redirect the governmental body to request that data directly from the Customer. If compelled to disclose Customer Data to a governmental body, then Aiven will only disclose the Personal Data strictly to the extent it is legally required to do so and shall give the Customer reasonable notice of the demand to allow the Customer to seek a protective order or other appropriate remedy unless Aiven is legally prohibited from doing so.

3. Amendments to the Switching Tools

Due to the inherent nature of the Cloud Services including the associated Switching Tools associated with the Cloud Services, Aiven reserves the right to make changes to the Switching Tools at any time.