Raidboxes GmbH (Provider) Terms and Conditions relating to the Data Act

1. Definitions

For the purposes of these Terms and Conditions, the following terms shall be defined exclusively as follows:

Customer
The customer of the Provider.

Clause
Any clause of these Terms and Conditions.

Data
Any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recordings.

Data Act
Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (Data Act).

Data Processing Service
A digital service provided to the Customer that enables ubiquitous and on-demand network access to a shared pool of configurable, scalable and elastic computing resources of a centralised, distributed or highly distributed nature, which can be rapidly provisioned and released with minimal management effort or interaction with the Provider or a destination service provider.

Exportable Data
The input and output data, including metadata, directly or indirectly generated or co-generated by the Customer’s use of the Provider’s Data Processing Service, excluding any assets or data protected by intellectual property rights or constituting trade secrets of the Provider or third parties.

On-Premises ICT
Infrastructure ICT infrastructure and computing resources owned, rented or leased by the Customer, located in the Customer’s own data centre and operated by the Customer or a third party.

Retrieval Period
The period during which the Customer may retrieve its Data and digital assets, as specified in Clause 5.

Services
Services or products provided by the Provider to the Customer that fall within the definition of a Data Processing Service under the Data Act.

Service Provider
A provider of data processing services other than the Provider.

Provider
Raidboxes GmbH.

Switching
The process whereby the Customer intends to switch from using the Provider’s Data Processing Service to another data processing service of the same service type, another service offered by a different provider of data processing services, or to an On-Premises ICT Infrastructure.

2. Scope of Application

The Provider has expressly specified on its dedicated technical documentation website which of its Services fall within the scope of the Data Act. Services not listed there are excluded.

These Terms and Conditions shall be read in conjunction with the Provider’s General Terms and Conditions. In the event of any conflict between these Terms and Conditions and the General Terms and Conditions, these Terms and Conditions shall prevail, except with regard to provisions concerning liability or indemnification.

The following obligations of the Provider and rights of the Customer shall apply only where the Customer requests (a) Switching to another Service Provider offering the same type of Data Processing Service as the Provider, (b) Switching to an On-Premises ICT Infrastructure managed by the Customer, or (c) the complete erasure of Exportable Data and digital assets.

The Provider’s obligations and the Customer’s rights shall apply only where the Customer terminates the Provider’s Services and invokes one of the options set out in (a), (b) or (c).

3. Term and Termination

The Customer may, at any time during the term of the Services, elect to terminate and/or switch all or part of the Services to another Service Provider by complying with these specific Terms and Conditions.

If the Customer wishes to terminate the Services or exercise its right to switch Service Providers, the Customer shall notify the Provider in writing whether it intends to:

• switch to another provider of data processing services, in which case the necessary details of the other Service Provider shall be provided;
• switch to the Customer’s On-Premises ICT Infrastructure; or
• refrain from Switching and instead solely erase the Exportable Data and digital assets.

Any such Switching notification from the Customer shall be deemed to have been received by the Provider on the next business day.

The Services, or the affected part thereof, shall terminate on the date on which the Customer notifies the Provider in writing that the Switching process has been successfully completed.

If the Customer does not notify the Provider of the successful completion or failure of the Switching process, the Provider may request confirmation from the Customer as to whether the Switching process has been successfully completed. If the Customer does not confirm successful Switching within thirty (30) days from the date of such request, the Switching process shall be deemed unsuccessful; the Services shall not terminate and shall continue under the existing terms and conditions. For the avoidance of doubt, in the event of unsuccessful Switching, the Customer shall remain liable for all fees and charges under the existing Services and their applicable terms and conditions.

Where the Customer has requested the erasure of its Exportable Data and digital assets, the Services shall terminate upon expiry of the maximum period specified in Clause 4.1.

4. Transitional Period

The Customer shall allow the Provider a maximum of sixty (60) days from the date on which the Provider receives the Customer’s Switching notification to initiate the Switching process.

Following the initiation of the Switching process, the Customer shall allow the Provider up to thirty (30) days to facilitate the transition of the Services to another Service Provider.

If the Provider is unable to comply with the transitional period specified in Clause 4.2 for technical reasons, the Provider shall:

• inform the Customer in writing within fourteen (14) working days of receipt of the written Switching notification;
• specify an alternative transitional period not exceeding seven (7) months from the date of the Customer’s Switching notification; and
• provide justification for the extension and any technical infeasibility.

Clause 4.2.1 above shall not apply where the delay is caused by the Customer or the destination service provider failing to fulfil the prerequisites communicated by the Provider.

Any such notification of extension by the Provider shall be deemed to have been received by the Customer on the next business day.

The Services shall continue throughout the extended period, and the applicable remuneration shall be governed by the original agreement between the Parties.

Where the Customer considers it appropriate for its own purposes, the Customer may extend the transitional period by up to ninety (90) days. The corresponding notification shall specify the intended extension in days.

• The Services shall continue throughout the extended period, and the applicable remuneration shall be governed by the original agreement between the Parties.

5. Retrieval of Data and Digital Assets

The Customer shall retrieve or erase its Data and digital assets within thirty (30) days following the expiry of the transitional period specified in Clause 4.

6. Assistance During the Transitional Period

The provider shall provide the customer and any third parties authorised by the customer with economically reasonable support from the start of the switching prThe Provider shall provide the Customer and third parties authorised by the Customer with commercially reasonable assistance from the commencement of the Switching process and throughout its duration.

The Provider shall make available the documentation necessary to complete the Switching process and provide reasonable technical assistance.

If any issues are identified during the Switching process, the Provider and the Customer shall analyse their causes in good faith and agree on appropriate solutions.

The Provider shall exercise due care to ensure business continuity and continue providing the functions or Services agreed under the Agreement.

The Provider shall maintain the existing level of security throughout the Switching process, particularly with regard to the security of Data during transmission. Under no circumstances shall the level of security exceed that provided during the provision of the Services.

The Provider shall make commercially reasonable efforts to assist the Customer in Switching to another Service Provider or terminating the Services.

The Provider shall not be obliged to carry out individual development work, bespoke integrations, custom exporters, data mapping, data transformation, data validation or hands-on migration activities as part of the Switching process, unless the Parties agree to such work in a written statement of work, subject to separate remuneration payable by the Customer.

7. Switching Plan

Where relevant due to the complexity of Switching to another Service Provider, the Parties may agree on a detailed switching and exit plan (the “Plan”).

8. Customer Obligations

The Customer undertakes to take all reasonable measures to ensure effective Switching within the agreed timeframe, including fulfilling the prerequisites communicated by the Provider. The Customer shall be responsible for importing and implementing Data and digital assets into its own systems or those of a Service Provider.

The Customer or any third party authorised by the Customer, including the Service Provider, shall respect the intellectual property rights relating to materials provided by the Provider as part of the Switching process, as well as the Provider’s trade secrets.

The Customer may grant access to such materials and, where necessary, sublicense them to third parties or a Service Provider only to the extent strictly necessary to carry out the Switching process. Such access or sublicensing shall be permitted exclusively until the end of the agreed transitional period (including any alternative transitional period) and shall at all times comply with confidentiality obligations and respect the intellectual property rights granted by the Provider.

The Customer acknowledges that personal data processed in connection with the Switching process shall remain subject to Regulation (EU) 2016/679 (the “GDPR”) and applicable national data protection laws, and that the Customer shall bear full responsibility for compliance with such legislation during the Switching process.

9. Unsuccessful Switching

In the event of an unsuccessful Switching process, the Parties shall cooperate in good faith to identify and resolve the relevant issue, improve the Switching process and achieve its successful completion, ensure the timely transfer of Data, and maintain continuity of the Services.

10. Business Continuity

The Provider shall ensure continuity of the Services until termination of the Agreement and the Services.

11. Fees

If the Customer terminates the Agreement before the expiry of the fixed or initial term, the Customer shall remain liable to the Provider for all fees and charges that would have accrued during the remainder of the fixed or initial term as if the Agreement had continued unchanged. The exact amount payable shall be specified by the Provider either upon conclusion of the Agreement or upon termination.

12. Risks and Security

The Provider shall inform the Customer if there is any known risk to the continuity of the Services during the Switching process.

The Provider shall ensure that security is maintained until termination of the Agreement and the Services, in accordance with the arrangements agreed for the Services.

13. Exportable Data and Digital Assets

The Customer may access all relevant information regarding the categories of Data and digital assets relating to the Services, all Exportable Data, and any exclusions from Exportable Data on the Provider’s dedicated technical documentation website.

14. Erasure Guarantee

Following the expiry of the agreed Retrieval Period and upon successful completion of the Switching process, the Provider shall erase all Exportable Data and digital assets generated by the Customer or directly relating to the Customer from environments controlled by the Provider; provided, however, that the Provider may retain:

• (i) Exportable Data that the Provider is required to retain under EU law, national law or other applicable legal provisions (including statutory archiving obligations);
• (ii) Exportable Data and digital assets stored in backups until their erasure in accordance with the Provider’s standard backup retention and overwrite cycles; and
• (iii) Exportable Data and digital assets subject to a legal hold;

in each case, only for the period necessary.

15. Liability

Each Party’s liability arising under these Terms and Conditions shall be limited to the limitation of liability specified in the Provider’s General Terms and Conditions.

16. Non-Applicability

In the case of customised solutions developed specifically at the Customer’s request, the Provider may charge the Customer for assistance with the Switching process.

Where the Service is provided to meet the Customer’s requirements for a testing and evaluation environment or an IT environment, none of the obligations relating to Switching Service Providers set out in these Terms and Conditions shall apply.

Neither these Terms and Conditions nor the contractual relationship between the Provider and the Customer shall oblige the Provider to disclose or transfer:

• (a) materials protected by intellectual property rights (IPR) belonging to the Provider or third parties; or
• (b) information constituting trade secrets of the Provider or third parties.

Where the refusal to make Data available to the Customer is based on the protection of intellectual property rights or trade secrets, the Provider shall limit such refusal to what is strictly necessary (including by means of redaction or aggregation).

17. Territorial Scope

These Terms and Conditions shall apply to Customers established in the European Union or the European Economic Area. The Provider may update these Terms and Conditions as necessary to reflect future regulatory or implementing acts under the Data Act.

18. Governing Law and Jurisdiction

These Terms and Conditions, as well as any disputes or claims arising out of or in connection with them, shall be governed by the same applicable law and subject to the same jurisdiction of the courts (or any other agreed dispute resolution procedure) as specified in the Provider’s General Terms and Conditions.