Conviva Leadership
Customer Agreement
Rev. November 03, 2016
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Conviva Products and Services (as defined below) are provided by Conviva Inc., located at 989 East Hillsdale Blvd., Fourth Floor, Foster City, California 94404 USA (“Conviva” or “Us”). Your use of Conviva Products and Services is governed by this Customer Agreement and such other commercial terms as set forth in the applicable Order Form(s) that reference this Customer Agreement and that you accepted by clicking, signing or otherwise accepting through an exchange of forms, or the like (all together, the “Agreement”). Your Affiliates may enter into Order Forms with Conviva, in which case the Products and Services ordered shall be provided solely to the contracting Affiliate (unless specifically agreed otherwise in the applicable Order Form) and the Affiliate, which shall be the customer for purposes of this Customer Agreement, shall be responsible for compliance with the terms of the Order Form and this Customer Agreement.
If you use the Conviva Products and Services as an employee of or for the benefit of your company, you represent that you have the power and authority to accept this Customer Agreement on behalf of your company. Your company will be the customer under this Customer Agreement. By accepting (electronically or otherwise) the terms of this Customer Agreement, or by accessing or using the Conviva Products or Services, you consent to the terms and conditions of this Customer Agreement on behalf of yourself and the company on whose behalf you will use the Conviva Products and Services. The effective date of this Customer Agreement is the date that you accept (electronically or otherwise) the terms of this Customer Agreement or the date of your first access to or use of the Conviva Products or Services, whichever occurs first. If you do not agree to the terms and conditions of this Customer Agreement or if you do not have the power and authority to accept the terms and conditions of this Customer Agreement on behalf of your company, you may not use the Conviva Products and Services and Conviva is unwilling to provide you with access to them.
PART I: TERMS
1.1 Services. Subject to the terms and conditions of this Agreement, Conviva will provide you with access to and use of the Services listed in the applicable Order Form in accordance with the terms thereof. To the extent any application program interfaces (“APIs”), libraries, software development kits (“SDKs”) or other software (collectively, “Software”) are provided or made available to you in connection with the Services, Conviva hereby grants you a limited, personal, non-exclusive, non-transferable (except as otherwise expressly permitted herein), worldwide, royalty-free license, without the right of sublicense, to use the Software for the applicable Order Form Term and for the sole purpose of integrating your Player(s) (as specified in each Order Form) with the Services. You agree to work in good faith with Conviva to integrate the Player(s) with the Services and to use commercially reasonable efforts to make all of your latest production Player integrations accessible to Conviva solely for test purposes during the applicable Order Form Term. You may not permit a Subcontractor to access or use the Software without Conviva’s prior written consent (email sufficient by an authorized representative of Conviva), and you shall be fully responsible for and liable to Conviva for your Subcontractor’s use of the Software in compliance with the terms of this Customer Agreement.
1.2 Products. If you have ordered any Conviva data products (“Products”) as listed in the applicable Order Form, Conviva will provide you with the Products and you are hereby granted a limited, personal, non-exclusive, nontransferable, worldwide, royalty-free right and license, without the right of sublicense, to use the Products for the applicable Order Form Term and for your internal analysis purposes only.
1.3 You will establish a password or other procedures for verifying that only your designated employees have access to any administrative and other functions of the Services. You are responsible for maintaining the security of your account, passwords (including administrative and user passwords) and files, and for all uses of your account and any Software provided. You shall not share with, nor allow access to, any third party any such account or passwords, or the Software, Products or Services, without the prior written consent of Conviva.
1.4 You may not knowingly provide to any person, or export or re-export, or allow the export or re-export of, the Software, Products or Services or anything related thereto or any direct product thereof, in violation of any applicable laws or regulations or otherwise.
2. Service Level Agreement; Professional Services; Service Incidents. Conviva shall provide the Services in accordance with the terms of the Service Level Agreement stated in Part II below (“Service Level Agreement”), which is incorporated by reference herein. In addition, as part of the Services, Conviva shall remotely provide integration assistance for initial integration of your Player(s) as specified in the applicable Order Form, including setup, validation and revalidation (“Professional Services”). You may request Conviva’s assistance with a Service incident (“Incident”) by submitting a support ticket at http://support.conviva.com. The Incident will be classified according to the applicable Incident Level definition, and Conviva will use commercially reasonable efforts to address the Incident in accordance with this classification and the following:
| Incident Level | Target Response Time |
| P0 (Critical) |
Platinum Premium: 30 min. (24x7x365) Gold Premium: 30 min. (24x7x365) Basic Support: 30 min. (24x7x365) |
| P1 (Urgent) |
Platinum Premium: 1 business hour Gold Premium: 2 business hours Basic Support: 4 business hours |
| P2 (Moderate) |
Platinum Premium: 8 business hours Gold Premium: 12 business hours Basic Support: 16 business hours |
Business hours are 8:00am to 6:00pm in your time zone, Monday through Friday, excluding standard Conviva holidays. You may view the status of Conviva’s response to your Service Incident reports online at http://support.conviva.com.
3. Confidentiality; Restrictions.
3.1 Confidentiality Obligations. Each party agrees to abide by the following confidentiality obligations with respect to the other party’s Confidential Information: (a) do not disclose it to any third party unless (i) the other party has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this Agreement, or (iii) the disclosure is necessary to comply with a valid court order, subpoena or is required to be disclosed by law or any regulatory or administrative body; (b) do not use it for any reason other than to exercise its rights and perform its obligation under this Agreement; and (c) protect it from unauthorized dissemination in the same manner as that party protects its own Confidential Information, and in any event with reasonable precautions (which include limiting access to employees and permitted Subcontractors on a “need-to-know” basis). If you believe you must disclose Conviva’s Confidential Information in accordance with 3.1 (a)(iii), then prior to disclosure you shall, to the extent legally permitted, promptly notify Conviva and cooperate with Conviva if Conviva chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or limit the nature or scope of the information to be disclosed. Conviva will do the same if it believes it must disclose your Confidential Information in these circumstances. Each Party acknowledges that the unauthorized disclosure or use of Confidential Information may cause irreparable harm to the other Party for which recovery of money damages would be inadequate, and the other Party will therefore be entitled to apply as a right for injunctive relief to protect its rights under this Agreement, in addition to any and all remedies available at law.
3.2 Restrictions. You will not, and will not permit any third party to, reverse engineer or otherwise attempt to discover the source code or underlying structure or algorithms of the Software, Products or Services (except to the extent such restrictions are contrary to applicable law), modify or create derivative works based on the Products, Services or Software, or otherwise use the Products, Services or Software except as expressly permitted by this Agreement.
4. Intellectual Property Rights. As between the Parties, Conviva and/or its licensors own and will retain all Intellectual Property Rights in and to the Products, Services (including Service Statistics) and Software. You are hereby granted a limited, personal, non-exclusive, nontransferable, worldwide, royalty-free right and license, without the right of sublicense, to use the Service Statistics contained in the analysis exported by the Services, for the applicable Order Form Term and for your internal analysis purposes only. You shall not disclose or provide, or provide access, to any third party any Products, Services (including without limitation the Service Statistics) or Software without Conviva’s prior written consent. Your only rights in the Products, Services (including without limitation the Service Statistics) and Software are the rights expressly granted in this Agreement, and all other rights are reserved by Conviva.
5. Payment of Fees. The fees are specified in the applicable Order Form (“Fees”), which shall be invoiced as of the Order Form Effective Date. Fees are due and payable within thirty (30) days of receipt of invoice, unless specified otherwise in the Order Form. Fees unpaid after the date due are subject to a finance charge of the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law. Conviva will be solely responsible for its income taxes in connection with this Agreement and you will be responsible for all sales, use and similar taxes, levies and duties imposed by the taxing authorities, if any. All Fees are exclusive of all such taxes, levies and duties. Without prejudice to any of its other rights or remedies, Conviva may restrict or suspend your access to further Software, Products and Services if payment is not made within five (5) business days of notice that payment is past due. All Order Forms are non-cancellable, and all Fees are non-refundable and non-creditable unless otherwise expressly stated in the applicable Order Form.
6. Termination. The term of this Agreement will begin on the Effective Date and will end when the last Order Form expires, unless this Agreement is terminated sooner by either party as permitted herein. Each Order Form will have its own Order Form Term. Without affecting any other right or remedy available to it, either party may terminate this Agreement or an Order Form on written notice if the other party materially breaches this Agreement or the Order Form and (where such breach is remediable) does not cure such breach within thirty (30) days after notice of such breach. In addition, either party may terminate this Agreement or an Order Form without notice upon: (a) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (b) the other party’s making an assignment for the benefit of creditors, or (c) the other party’s dissolution or ceasing to do business. Termination of this Agreement or any Order Form shall not affect any rights, remedies, liabilities or obligations of the Parties, including the payment of amounts due or the right to claim damages in respect of any breach of the Agreement and/or Order Form, which have accrued up to the date of such termination. Upon any such termination or expiration, the provisions of Sections 3, 4, 5, 6, 7.2, 8, 9, 12, 13 and 14 shall survive and shall continue in full force and effect in accordance with their terms. For the avoidance of doubt, termination of an Order Form shall not terminate any other Order Form in effect or this Agreement, which shall continue in full force and effect in accordance with these terms.
7. Warranties; Disclaimer.
7.1 Conviva warrants that (a) the Services will operate in conformity with the description of the Services set forth in the applicable Order Form, (b) it will perform the Professional Services in a professional and workmanlike manner with employees having a level of skill commensurate with the requirements of this Agreement, (c) it will use commercially reasonable and industry standard methods to prevent the introduction of any viruses, disabling devices, Trojans, time bombs or other malicious code in the Software.
7.2 Except for the warranties in Section 7.1, Conviva hereby disclaims all warranties, conditions, representations or other terms, whether oral or written, express or implied, including without limitation all implied warranties and/or conditions of satisfactory quality, merchantability and fitness for a particular purpose.
8. Limitation of Liability.
8.1 In no event will either party, under any circumstances or any theory of liability, be liable to the other party for any indirect, punitive, incidental, special or consequential damages of any kind, arising from this Agreement, or the use of the Software, Products or Services provided to you hereunder, or the delay or inability to use the Services (including any lost revenue, sales, profits or business opportunities).
8.2 Each party’s total aggregate liability arising out of or in connection with this Agreement shall be limited to an amount equal to the Fees paid or payable by you to Conviva hereunder in the twelve (12) month period ending on the date that a claim or demand is first asserted, in each case whether based in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, strict liability or otherwise, and even if either party has been advised of the possibility of damages. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy and to the maximum extent permitted under applicable law.
8.3 The exclusions of liability in Sections 8.1 and 8.2 shall not apply to either party’s breach of Section 3.
9. Indemnification.
9.1 Conviva will, at its own expense, defend (or at its sole option, settle) any claim, suit or proceeding asserted against you by a third party that any Product, Service or Software obtained from Conviva under this Agreement directly infringes any patent, copyright, trademark or trade secret of such third party (“Claim”). Conviva will indemnify you for any damages suffered and costs reasonably incurred by you that are directly attributable to such Claim and that are assessed against you in a final, non-appealable judgment from a court of competent jurisdiction or agreed upon by Conviva in a settlement.
9.2 Notwithstanding the foregoing, Conviva will have no obligation under this Section 9 or otherwise to defend or indemnify you with respect to any Claim to the extent such Claim is based on any of the following: (i) any unauthorized use, reproduction, or distribution of any Product, Service or Software, or any breach of this Agreement by you, (ii) Conviva’s compliance with any specifications supplied by you which cannot be reasonably implemented in a non-infringing manner, (iii) any combination of any Product, Service or Software with other products, equipment, software, uses or data not supplied, authorized or required in writing by Conviva, if the Claim would have been avoided without such combination, (iv) any modification of any Product, Service or Software by any person other than Conviva or its authorized agents or contractors, if the Claim would have been avoided without such modification, or (v) continued use of the unmodified Product, Service or Software after Conviva has provided you with a work-around or modification that would have avoided the Claim without materially adversely affecting the functionality or availability of the Product, Service or Software. Further, if Conviva reasonably believes that all or any portion of any Product, Service or Software, or the use thereof, is likely to become the subject of a Claim, Conviva may elect at its discretion: (a) to procure, at Conviva’s expense, the right for you to continue using the Product, Service or Software in accordance with the terms hereof, (b) to replace or modify the allegedly infringing Product, Service or Software to make it non-infringing with at least equivalent functionality or performance, or (c) in the event the preceding is infeasible or not commercially practicable, Conviva may, in its sole discretion, terminate this Agreement or the applicable Order Form upon notice to you and refund any prepaid amounts for the affected unused Product, Service and/or Software.
9.3 Conviva’s obligations to defend and indemnify you with respect to a particular Claim are subject to the following conditions: (a) you must promptly give Conviva written notice of the Claim; (b) you must give Conviva sole control and authority over the defense and settlement of the Claim, provided that you is entitled to participate in its own defense at its sole expense; (c) you must provide Conviva with all information it has regarding the Claim and cooperate with Conviva when Conviva defends or attempts to settle the Claim; and (d) you shall whenever and wherever possible take all reasonable steps to mitigate its losses that at the subject of the Claim. Conviva may, without your consent, settle a Claim that (i) creates no liability to you, (ii) does not impair your rights hereunder, and (iii) does not require you to make any admission of liability. Except as expressly stated in this Section 9, Conviva has no obligation or liability to you for any actual or alleged infringement related to the Software, Products or Services provided by Conviva under this Agreement.
10. Publicity/Use of Trademarks. The parties agree to work together in good faith to create and release a joint press release announcing your use of Conviva’s Products and/or Services. Also, both parties may disclose the relationship to third parties, but the details of this Customer Agreement and any Order Form hereunder will be treated as Confidential Information. In connection with its permitted activities under this Agreement, each party may use the trademarks of the other party, but only in the form and manner approved in advance in writing by the other party, and in accordance with the quality standards and usage guidelines of the other party, and only in connection with the Products and Services provided to you under the Agreement.
11. Assignment. You may not transfer or assign your rights under this Agreement to any other person in any manner (by assignment, operation of law or otherwise) unless you have obtained written consent from Conviva. If you attempt to transfer or assign any of your license rights without Conviva’s consent, the transfer or assignment will be ineffective, null, and void (and you will be in material breach of this Agreement).
12. Notices. Any notice, approval, consent or other communication intended to have legal effect under this Agreement must be given to the other party in writing and delivered by email, by express courier delivery service or by certified mail, and in each instance will be deemed given upon dispatch, provided proof of actual delivery is retained. In the event of email notice, one of the two (2) follow-up hard copy methods specified above shall be commenced within two (2) business days, and delivery is effective on email dispatch, provided proof of actual delivery of the follow-up hard copy method is retained. All notices or approvals that you send to Conviva shall be sent to its General Counsel at the address specified above, or as otherwise specified by Conviva in writing. Conviva will send all notices and approvals to you at the email address specified in the applicable Order Form. If your email address is not set forth on the applicable Order Form, then notice may be made to the email address for the primary business contact then-noticed under the Agreement, on file with either Partner or Conviva.
13. Governing Law. This Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by the laws of the State of California, without regard to its conflicts of law provisions. Each party irrevocably agrees that the state courts located in San Mateo County, California, USA, or the federal courts located in the Northern District of California, USA, shall have exclusive venue and jurisdiction to settle all actions and disputes relating in any manner to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
14. General. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond its reasonable control, including without limitation governmental action, acts of terrorism, earthquake or other acts of God, labor conditions, power failures and utilities or telecommunications failures (collectively, “Force Majeure Events”). This Agreement and any applicable attachments and Order Forms are the entire agreement between the Parties concerning its subject matter, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral). Each party acknowledges that it does not rely upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Agreement or not) except those expressly set out in this Agreement and that the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for damages for breach of contract under this Agreement. However, any confidentiality or nondisclosure agreements that Conviva previously entered into with you will remain in effect (according to their terms) with respect to the confidential information disclosed thereunder. No waiver, change or modification to this Agreement or any Order Form will be effective unless in writing signed by both Parties. This Agreement may be amended only by means of a written instrument signed by authorized representatives of both Parties that specifically refers to this Agreement and states the Parties’ intention to amend it. No additional or inconsistent terms on any purchase order or similar document you submits to Conviva will be binding on Conviva or have any legal effect. The Parties agree that this Agreement may be signed by manual or electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event any provision of this Agreement shall be determined to be void, illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.
PART II: SERVICE LEVEL AGREEMENT
1. Availability (Uptime) Target. Conviva shall use commercially reasonable efforts to provide Availability of the Services at least 99.9% of each month (“Availability Target”).
2. Availability Calculation. “Availability” is calculated as follows: ([# of minutes in month] – [# of minutes per month Services are Unavailable]) / [# of minutes in month].
3. Notice for Planned and Emergency Unavailability. Except as otherwise agreed by the parties in advance, Conviva will provide Customer with at least 72 hours advance notice (via e-mail) of all planned maintenance activities, which maintenance shall occur during a maintenance window between 10:00 PM and 02:00 AM Pacific Time on one day per week, between Monday through Thursday (primarily on Wednesday). In addition, Conviva reserves the right to undertake emergency maintenance on notice that is commercially practicable under the circumstances. Conviva shall not be liable for Unavailability during such emergency maintenance periods provided that such emergency maintenance is reasonably circumscribed.
4. Service Credits. Customer’s sole and exclusive remedy, and Conviva’s sole and exclusive liability, in the event Conviva fails to meet the Availability Target is that Conviva will provide Customer with a Service Credit in accordance with the terms of this Section. To receive Service Credits, Customer must submit a written request to ar@conviva.com within fifteen (15) days after the end of the month in which the Services were Unavailable. Conviva will credit Customer (or refund to Customer, where credit is not possible (such as for the last month of a Term)) a percentage of Customer’s effective monthly Services fee for the month affected, based on the following chart:
| Availability per Month | Service Credit (as % of Effective Monthly Services Fee) |
| <99.9-99.0 | 5% |
| <99.0%-98.5% | 12.5% |
| <98.5%-98.0% | 25% |
| <98.0% | 50% |
PART III: DEFINITIONS
“Affiliate” means an entity that is controlled by, controls or is under common control with a party, where “control” means the direct or indirect ownership of more than fifty percent (50%) of the shares or interests entitled to vote for the directors thereof or the equivalent, for so long as such entitlement exists, or equivalent power over management thereof.
“Confidential Information” of Conviva means (a) the Products (in any form), Services, Service Statistics, Software, documentation, data sheets, Feedback, and all ideas and information (such as algorithms) contained or embodied in any of the foregoing; (b) the prices, discounts, payment terms, and other information in or attached to the Order Forms; and (c) any other confidential or proprietary information that Conviva provides to you in connection with this Agreement. Your “Confidential Information” means any confidential or proprietary information in (i) written form that you provide to Conviva for Conviva to fulfill your orders and its obligations under this Agreement, and (ii) oral form that you provide to Conviva in order to receive the Software, Products and Services; as long as you notify Conviva at the time of disclosure that such information is to be treated as confidential under this Agreement. Also, Confidential Information of either party does not include any of the following: (1) information that has become generally available to the public, through no fault by you (in the case of Conviva Confidential Information) or Conviva (in the case of your Confidential Information) and that is not still regarded as a trade secret under laws governing information that was negligently or maliciously distributed; (2) information that the receiving party had already obtained in a tangible form, through lawful means, before obtaining it under this Agreement; (3) information that the receiving party developed independently, without the use of any materials or information obtained from the other party in connection with this Agreement; (4) information that the receiving party has lawfully obtained, in a tangible form, from a third party that had the right to provide it to the receiving party; or (5) information that the disclosing party releases for publication in writing.
“Feedback” means any ideas or suggestions you voluntarily provide to Conviva (in any manner, whether in writing, orally or otherwise) regarding any Software, Product or Service, including possible enhancements or improvements thereto.
“Incident Level: P0 (Critical)” means the Services are completely unavailable and/or you cannot use the Services due solely to a Services failure.
“Incident Level: P1 (Urgent)” means a significant functional component of the Services is unavailable and/or your use of such component is impaired due solely to a Services failure.
“Incident Level: P2 (Moderate)” means a non-significant functional component of the Services is unavailable and/or your use of such component is impaired due solely to a Services failure.
“Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, database rights, and trademark rights (including service marks and trade names), and any applications for these rights, in all countries.
“Order Form” means a mutually-agreed writing signed by each party that provides for the purchase and sale of any Product or Service and that references this Customer Agreement, including, among other things, the licensed scope of viewer hours or views available for consumption and the licensed total peak concurrent usage (“Capacity”).
“Order Form Effective Date” is the date of last signature on an Order Form, unless expressly identified otherwise in the Order Form.
“Order Form Term” commences on the Order Form Effective Date and expires at the end of the Subscription Term identified on the Order Form.
“Products” means the data reports and other products of Conviva listed in an applicable Order Form.
“Services” means the Conviva services listed in an Order Form.
“Service Statistics” means all statistics computed by the Services.
“Subcontractor” is a third party that (a) is bound by a contract with you to provide services to you, and (b) has been approved by Conviva to have access to any Software, Products, Services or other Confidential Information of Conviva in compliance with the terms of this Agreement.
“Subscription Term” means the duration indicated in each Order Form of the subscription to use the Products and Services ordered under that Order Form.
“Unavailable” (and variations thereof) mean the Services are not available for access and use through your Internet connection, excluding the time that the Services are not available due to (a) maintenance as set forth in Section 3 of the Service Level Agreement; (b) reasons of a force majeure event or events outside Conviva’s reasonable control; (c) issues arising from misuse or mis-configuration of the Services by you or your agents, end customers or third-party contractors; and (d) your exceeding the Capacity that you have reserved in advance.
“You” (and variations thereof) means the person or entity that accepts (electronically or otherwise) the terms and conditions of this Customer Agreement as the customer (i.e., you or the company on behalf you use or access the Conviva Products and Services).
PART IV: ADDITIONAL TERMS FOR EU COUNTRY MEMBERS
If you are domiciled in any member country of the European Union, then the following additional terms apply:
1. Governing Law. Notwithstanding Section 13 of Part I above, the Customer Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by the laws of England and Wales, without regard to its conflicts of law provisions. Each party irrevocably agrees that the courts of England and Wales shall have exclusive venue and jurisdiction to settle all actions and disputes relating in any manner to this Agreement.
2. Termination. In addition to Section 6 of Part I above, either party may terminate the Customer Agreement or an Order Form without notice if the other party suspends or threatens to suspend payment of its debts or is unable to pay its debts as and when they fall due or admits inability to pay its debts or is deemed unable to pay it debts within the meaning of section 123 of the Insolvency Act 1986, or an any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the aforementioned events.
3. Compliance with Anti-Bribery Laws. Each party acknowledges its responsibilities under the Bribery Act 2010 of the United Kingdom and represents and covenants that it has not and will not offer, give, solicit or accept any bribe from any person, organization or company with the intent to coerce or induce the other party, or an employee or agent of the other party, to act improperly in the course of its duties under the Customer Agreement.
4. Data Protection.
4.1 In computing the Service Statistics, the Software, Products and Services do not collect behavioral or other information that is personally identifiable to you or any of your end users. The Services initially relate to an IP address, which may in some geographic regions be considered personal data for purposes of local or regional data privacy laws or regulations (for such regions, “User Personal Data”). Conviva does not retain, nor store in persistent storage, any IP addresses in any such geographic regions, except as expressly instructed by you. As between you and Conviva, you are the data controller and Conviva is the data processor in relation to the processing of any such User Personal Data by the Services. As the data controller, you shall be responsible for ensuring that all User Personal Data is provided to Conviva and processed in compliance with applicable data protection laws.
4.2 Conviva shall, if processing User Personal Data as a data processor: (i) only process User Personal Data on your behalf to the extent and in such a manner as is necessary to provide the Products and Services and perform its obligations under this Agreement, or as may be required by applicable law, and for no other purpose without your prior written consent; (ii) process User Personal Data only on and in accordance with your instructions and as set forth in this Agreement; (iii) keep User Personal Data confidential and ensure that appropriate technical and organizational measures are taken by it (and any person to whom it is authorized to disclose such User Personal Data) against the unauthorized or unlawful processing of such User Personal Data; (iv) without prejudice to the generality of the foregoing, and with regard to the state of technological development and the cost of implementing any such measures, ensure a level of security appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage, and the nature of the User Personal Data to be protected; and (v) not transfer User Personal Data outside the European Economic Area (“EEA“) to countries whose laws the EEA has acknowledged may provide a lower standard of data protection than exists in the EEA, without your prior written consent. For purposes of sub-section (v) immediately above, the parties acknowledge and agree that the provision of the Products, Services and/or Software may involve a transfer of User Personal Data from Conviva to its Affiliates (if any) and third party data processors engaged in the provision of the Services and located outside the EEA.
4.3 Conviva may authorize third party subcontractors to process the User Personal Data in connection with the Services and its obligations hereunder. Conviva shall use all reasonable commercial endeavors to ensure that any such subcontractors only process User Personal Data on the basis of a written contract which imposes on and secures from such subcontractors’ obligations that are substantially the same as those contained in and imposed on Conviva under this section.
4.4 Conviva relies on you for direction as to the extent to which Conviva is entitled to use and process the User Personal Data. Consequently, Conviva will not be liable for any claim brought by a data subject to the extent that such action or omission resulted directly from your instructions. You agree to comply in all respects with any applicable laws, regulations, standards and guidelines applicable to the processing of personal data.