Amendment No. 1 to the Standard Contract (Marketplace)

Last updated June 1, 2023.

This Amendment No. 1 to the Standard Contract (“Amendment”) is made and entered into by and between Customer and Fonoa Technologies Limited (“Publisher”). This Amendment is intended to modify certain terms of the Standard Contract executed by the parties within the Marketplace (“Standard Contract”).

The terms of this Amendment are incorporated by reference in the Standard Contract (together, the Standard Contract and this Amendment shall further also be referred to as “Agreement”).

Except as specifically stated herein, each defined term used in this Amendment shall have the same meaning as is assigned to it in the Standard Contract. In the event of an inconsistency or conflict between the Standard Contract and this Amendment, the terms and conditions of this Amendment shall govern and control.

Recital

WHEREAS, Customer and Publisher desire to affect the purchase of the Offering under the terms of the Standard Contract, with the amendments set forth below.

Agreement

Section 1 (License to Offerings), paragraph 1.2 (Duration of licenses) of the Standard Contract shall be amended to reflect that:

a) Licenses shall be granted to Customer for the initial subscription period as stated in the applicable Order (“Initial Term”). After the expiry of the Initial Term, the term of an Order and the relevant licences shall automatically renew for successive 1 (one) year periods, unless a non-renewal notice has been delivered by a Party no later than 60 days before the expiration of the initial subscription term, except if specified otherwise in the relevant Order.

Section 2 (Privacy), paragraph 2.1 (EU Standard Contractual Clauses) shall be amended to reflect that:

a) A transfer of Customer Data out of the European Union, European Economic Area, and Switzerland may take place without Publisher’s executing of the Standard Contractual Clauses or any other authorisation where the Commission has decided that the third country, a territory or one or more specified sectors within that third country, or the international organisation in question ensures an adequate level of protection.

Section 2 (Privacy), paragraph 2.3 (Processing of Personal Data; GDPR), point b. (Processing Details) and d. (Use of Subprocessors) shall be amended to reflect that:

a) Where Publisher processes Personal Data of Customer’s representatives and personnel (including employees and contractors) for the purpose of (1) ensuring the proper and efficient performance of the contract, including by enabling Customer’s personnel to access the Offering (for example, via a dashboard or any other tool made available by Publisher), (2) keeping records of the contractual relationship, (3) maintaining, evaluating, developing and improving Publisher’s services and (4) business communication generally, Publisher is a separate controller of such Personal Data;

b) Processing activities listed in point (a) are not governed by the Agreement, and Personal Data processed for the above purposes shall not be considered “Customer Data”. Use of such Personal Data is governed by each Party’s respective privacy notice. Publisher’s privacy notice is made available to Customer via the Marketplace, and Customer shall be responsible for ensuring that Publisher’s privacy notice is made available to the relevant data subjects;

c) Customer hereby consents to the following subprocessors that Fonoa uses to provide the Offering:

Section 3 (Confidentiality), paragraph 3.5 (Duration of Confidentiality obligation) shall be amended to reflect that:

a) Confidentiality obligations set out in the Agreement apply: (1) for Customer Data, until deleted by Publisher; and (2) for other types of Confidential Information, confidentiality obligations shall survive the expiration or termination of the Agreement and shall remain effective to the maximum extent permitted under the applicable law.

Section 8 (Limitation of Liability), point a. (Subscriptions) shall be amended to reflect that:

a) Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident.

b) Publisher’s maximum liability to Customer for any unauthorised access, use, or disclosure of Customer Data due to a breach of Publisher’s obligations under Section II(6) (Security), Publisher’s maximum liability to Customer will not exceed three times (3x) the amount Customer paid for the Offering during the 12 months before the incident.

Section 11 (Miscellaneous), paragraph 11.10 (Applicable law) shall be amended to reflect that:

a) The Agreement and any dispute(s) or claim(s) arising out of or in connection with it or its subject matter or formation (including non-contractual dispute(s) or claim(s)) shall be governed by and construed in accordance with the laws of Ireland without regard to conflict of law principles.

b) The Parties irrevocably consent and agree to arbitrate any dispute relating to or arising out of the Agreement, the services provided by Publisher and/or the termination of the Agreement, and irrevocably agree that all claims in respect of such suit or proceeding shall be determined only in arbitration, including the arbitrability of any such claim or dispute. The Parties agree that such arbitration shall be held in Dublin, Ireland in English, pursuant to the then current JAMS Rules of Arbitration. The arbitrator shall issue a written ruling and the prevailing party shall be entitled to an award of reasonable costs and expenses, including reasonable attorneys’ fees. Judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, with respect to matters involving intellectual property and/or injunctive relief, either party may seek relief in any court of competent jurisdiction (and is not limited to resolution through arbitration).