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Master Service Agreement 2021
ONLINE MASTER SERVICES AGREEMENT
This Segment Online Master Services Agreement (“Agreement”) is entered into by and between Segment.io, Inc. (“Segment”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Modifications: You acknowledge and agree that Segment may modify the terms and conditions of this Agreement in accordance with Section 15 (Modifications).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Segment services. Segment offers a suite of Services for data integration, data governance and audience management, as further described below and in the Documentation.
1.2. Additional Services. If included on an Order Form, Customer may also receive access to additional Segment services that may be used with Connections (e.g. Personas or Protocols). The features of any additional services are further described in the applicable Order Form. For clarity, any additional services are considered part of the Services for purposes of this Agreement.
“Customer Data” means any data that Customer submits to the Services, including data that it collects from Customer Properties or retrieves from other Sources through the Services, including as may be incorporated in any Customer reports or output generated by the Services. Customer Data does not, however, include any Segment or third-party templates, technology or data.
“Customer Materials” means materials, systems and other resources that Customer provides to Segment in connection with Technical Services.
“Documentation” means the end user technical documentation provided with the Services, as may be modified from time to time.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws.
“Service(s)” means the specific Segment proprietary hosted service(s) (e.g. Connections, Protocols, Personas) specified on an Order Form, including any related Segment dashboards, APIs and Segment Code. “Services” do not include Technical Services.
“Technical Services” means premium support, implementation or other technical services provided by Segment, as set forth in an Order Form.
“Usage Data” means Segment’s technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Destinations). For clarity, Usage Data does not include Customer Data.
1.4. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer shall purchase and Segment shall provide the Services and any related Technical Services (as further described in Section 9 below) as specified in the applicable Order Form.
1.6. Use Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Segment); (e) copy, modify or create any derivative work of the Services or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (g) publicly disseminate performance information regarding the Services.
1.7. Storage and Processing of Customer Data. During each Subscription Term, Segment may store certain Customer Data submitted from Sources to enable various features and functionality of the Services, including for “replay” and re-sending of Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Services may be stored and processed by Segment in the United States or in other countries as approved or directed by Customer (e.g., through Customer’s selection of a regional option through the Services). For clarity, nothing in this Section 1.7 prohibits Segment from transmitting Customer Data to Customer’s designated Destinations as part of the Services.
1.8. Data Protection Addendum. The parties agree to comply with the terms of the Data Protection Addendum attached as Exhibit B.
2. Customer OBLIGATIONS
2.1. Data Collection. Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Services dashboard and Documentation, enabling a third-party Destination involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Destination’s provider may be sent directly to Customer’s accounts with that Destination, rather than passing through the Services.
2.2. Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Segment that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Online Privacy Protection Act, European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Segment the rights in Section 4.1 and Customer’s building, tracking, using or sharing of any user profiles, traits or audiences), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Services with any Source or Destination, Customer authorizes Segment to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. In addition, in order to provide the Services to Customer and improve Segment’s integrations with Sources and Destinations, Segment may also disclose Customer’s status as a Segment customer and related technical Services data to the providers of Customer’s Sources and Destinations.
2.3. No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Segment is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services is neither HIPAA nor PCI DSS compliant. Segment shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
2.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Segment from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Customer Materials, Customer Data or breach or alleged breach by Customer of Sections 2.2 (Rights in Customer Data) or 2.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Segment (at Customer’s expense for reasonable out-of-pocket costs).
3. SECURITY. Segment agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data, as further described in Segment’s Information Security Policy attached as Exhibit A. However, Segment shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Segment’s control.
4.1. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Segment. Subject to the terms of this Agreement, Customer hereby grants to Segment a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.
4.2. Segment Technology. This is a subscription agreement for access to and use of the Services. Customer agrees that Segment or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, Technical Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Segment may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for Segment’s other lawful business purposes. Except as expressly set forth in this Agreement, no rights in the Services or any Segment technology are granted to Customer.
4.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Segment product or service to Segment (“Feedback”). Segment may freely use or exploit Feedback in connection with any of its products or services.
5. Subscription Term, FEES & PAYMENT
5.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve (12) month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
5.2. Fees and Payment. All fees are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Subscription Terms, Customer will pay all fees at the end of the month and (ii) for annual Subscription Terms, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 7 (Limited Warranty), Section 11 (Indemnification), Section 15.1 (Modifications to this Agreement) and (if applicable) the Service Level and Support Policy, all fees are non-refundable. Segment reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. Taxes. Segment’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Segment is solely responsible for taxes assessable against Segment based on Segment’s net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify Segment and shall pay Segment any additional amounts necessary to ensure that the net amount that Segment receives, after any deduction and withholding, equals the amount Segment would have received if no deduction or withholding had been required.
5.4. Overages. If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Segment reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
6. TERM AND TERMINATION
6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Suspension of Services. Without limiting Segment’s termination or other rights hereunder, Segment reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.5 (Access to the Services), 1.6 (Use Restrictions) or 2 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. When practicable, Segment will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing). Unless this Agreement has been terminated, Segment will cooperate to restore Customer’s access to the Services promptly after Segment verifies that Customer has resolved the issue requiring suspension.
6.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Segment technology), cease distributing any Segment Code installed on Customer Properties, and delete (or, at Segment’s request, return) any and all copies of the Documentation, any Segment passwords or access codes and any other Segment Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Segment may delete any such data as may have been stored by Segment at any time. Upon any expiration or termination of this Agreement, Segment shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Segment may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 3 (Security). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
6.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.6 (Use Restrictions), 2.4 (Indemnification by Customer), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 10 (Limitation of Remedies and Damages), 11 (Indemnification), 12 (Confidential Information), the disclaimers in Section 13 (Beta Releases), 15 (Modifications) and 16 (General Terms).
7. LIMITED WARRANTY
7.1. Limited Warranty. Segment warrants, for Customer’s benefit only, that the Services will operate in substantial conformity with the applicable Documentation. Segment’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Segment to use commercially reasonable efforts to correct the reported non-conformity, or if Segment determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to Beta Releases or any use of the Services provided on a no-charge or evaluation basis.
7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, THE SERVICES, TECHNICAL SERVICES and ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER SEGMENT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Segment does not warrant that Customer’s use of THE SERVICEs will be uninterrupted or error-free, nor does Segment warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND SEGMENT TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS REQUIRED BY LAWS. Segment SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Segment. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
8. Service Levels and support. During the Subscription Term, the Services will be subject to the standard service level and standard support terms at [URL] (“Service Level and Support Policy”).
9. TECHNICAL Services. Any purchased Technical Services will be as described in the relevant Order Form, subject to the fees and any additional terms in the Order Form. Customer will reimburse Segment for reasonable, pre-approved travel and lodging expenses incurred in providing Technical Services. For prepaid Technical Services, unless specified in the Order Form, Customer is paying for the availability and efforts of Segment personnel over the time period specified in the Order Form (e.g., up to eight hours in a week); any unused time expires at the end of such period (or at maximum, six (6) months after purchase) and may not be banked, accumulated or saved for future periods or purchases. To facilitate Technical Services, Customer will provide Segment with access to reasonably requested Customer Materials and cooperation and will designate an internal project manager to serve as Segment’s single point of contact. If Customer fails to do so, Segment’s obligation to provide Technical Services will be excused until Customer does. Segment will use Customer Materials only for purposes of providing Technical Services. If Segment provides deliverables as part of Technical Services, Customer may use the deliverables only as part of its authorized use of the Services, subject to the same terms as for the Services in Section 1 (Segment Services) and Section 2 (Customer Obligations).
10. Limitation of Remedies and Damages
10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SEGMENT DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
10.3. Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Sections 1.6 (Use Restrictions), 2.2 (Rights in Customer Data) or 2.3 (No Sensitive Personal Information); or (b) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 2.4 (Indemnification by Customer) or Segment’s indemnification obligations under Section 11 (Indemnification).
10.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. INDEMNIFICATION. Segment shall defend Customer from and against any claim by a third party alleging that the Services when used as authorized under this Agreement infringes a U.S. patent or any copyright or trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Segment (including reasonable attorneys’ fees) resulting from such claim, provided that Segment has received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Segment to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation of Customer (at Segment’s expense for reasonable out-of-pocket costs). If Customer’s use of the Services is (or in Segment’s opinion is likely to be) enjoined, if required by settlement or if Segment determines such actions are reasonably necessary to avoid material liability, Segment may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Segment. The foregoing indemnification obligation of Segment shall not apply: (1) if the Services are modified by any party other than Segment, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with products or processes not provided by Segment, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Services; (5) if Customer settles or makes any admissions with respect to a claim without Segment’s prior written consent; or (6) to Beta Releases or any use of the Services provided on a no-charge or evaluation basis. THIS SECTION 11 SETS FORTH Segment’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
12. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Segment technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Segment without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Segment, the subcontractors referenced in Section 16.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
13. Beta Releases. Customer may receive access to a Service (or Service features) as an alpha, beta or early access offering (“Beta Releases”). Segment identifies all Beta Releases as such and any usage by Customer is optional. Use of a Beta Release is permitted only for Customer’s internal evaluation during the period designated by Segment (or if not designated, 30 days) and may be subject to additional terms provided by Segment and agreed by Customer. Segment may suspend or terminate Customer’s access to Beta Releases at any time for any reason. Beta Releases may be inoperable, incomplete or include features that Segment may never release, and their features and performance information are Segment’s Confidential Information. Notwithstanding anything else in this Agreement, Segment provides no warranty, service levels or support for Beta Releases and its liability for Beta Releases will not exceed US$50.
14. CO-MARKETING. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on Segment’s web site and in Segment promotional materials. Customer agrees that Segment may disclose Customer as a customer of Segment.
15.1. Modifications to this Agreement. Segment may modify the terms and conditions of this Agreement (which may include changes to Services pricing and plans, or modifications to the Service Level and Support Policy and the security terms described in Exhibit A (Information Security Policy) from time to time with notice to Customer in accordance with Section 16.5 (Notice). Unless a shorter period is specified by Segment (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If Segment specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies Segment in writing of its objection to the modifications within thirty (30) days after the date of such notice, Segment (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
16. GENERAL TERMS
16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities (any of the foregoing, a “Change of Control”). Notwithstanding the foregoing, with respect to any Change of Control by Customer: (a) Customer shall provide written notice to Segment of any such Change of Control either before or within five (5) days after its taking effect and (b) the assignee agrees in writing to assume all of the obligations of Customer under this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
16.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
16.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
16.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing. If to Segment, notices must be provided to the address set forth below (Segment Contact Information) and shall be deemed to have been received (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. If to Customer, Segment may provide notice to Customer’s email address on file or through the Services. Any email notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.
Segment Contact Information.
Legal notices should be sent to:
Attn: Segment Legal
100 California Street, Suite 700
San Francisco, CA 94111
With a copy also provided to: email@example.com
16.6. Any Customer notices, questions or complaints regarding the Services should be sent to the following email address: firstname.lastname@example.org Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
16.7. Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Segment may make changes to the Services, and Segment will update the applicable Documentation accordingly.
16.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
16.9. Subcontractors. Segment may use the services of subcontractors and permit them to exercise the rights granted to Segment in order to provide the Services and Technical Services under this Agreement. These subcontractors may include, for example, Segment’s hosting, infrastructure and CDN providers. Segment remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement.
16.10. Subpoenas. Nothing in this Agreement prevents Segment from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Segment shall use commercially reasonable efforts to notify Customer where permitted to do so.
16.11. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.12. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
16.13. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
INFORMATION SECURITY POLICY
Segment considers protection of Customer Data a top priority. As further described in this Segment Information Security Policy, Segment uses commercially reasonable organizational and technical measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data stored on systems under Segment’s control. Segment maintains these security measures in accordance with ISO 27001, 27017 and 27018.
1. Customer Data and Management. Segment limits its personnel’s access to Customer Data as follows:
1.1. Requires unique user access authorization through secure logins and passwords, including multi-factor authentication for Cloud Hosting administrator access and individually-assigned Secure Socket Shell (SSH) keys for external engineer access;
1.2. Limits the Customer Data available to Segment personnel on a “need to know” basis;
1.3. Restricts access to Segment’s production environment by Segment personnel on the basis of business need;
1.4. Encrypts user security credentials for production access; and
1.5. Prohibits Segment personnel from storing Customer Data on electronic portable storage devices such as computer laptops, portable drives and other similar devices.
1.6. Segment logically separates each of its customers’ data and maintains measures designed to prevent Customer Data from being exposed to or accessed by other customers.
2. Data Encryption. Segment provides industry-standard encryption for Customer Data as follows:
2.1. Implements encryption in transport and at rest;
2.2. Uses strong encryption methodologies to protect Customer Data, including AES 256-bit encryption for Customer Data stored in Segment’s production environment; and
2.3. Encrypts all Customer Data located in cloud storage while at rest.
3. Network Security, Physical Security and Environmental Controls
3.1. Segment uses firewalls, network access controls and other techniques designed to prevent unauthorized access to systems processing Customer Data.
3.2. Segment maintains measures designed to assess, test and apply security patches to all relevant systems and applications used to provide the Services.
3.3. Segment monitors privileged access to applications that process Customer Data, including cloud services.
3.4. The Services operate on Amazon Web Services (“AWS”) and Google Cloud (“GCS”) and are protected by the security and environmental controls of Amazon and Google, respectively. Detailed information about AWS security is available at https://aws.amazon.com/security/ and http://aws.amazon.com/security/sharing-the-security-responsibility/. For AWS SOC Reports, please see https://aws.amazon.com/compliance/soc-faqs/. Detailed information about GCS security is available at https://cloud.google.com/docs/tutorials#security.
3.5. Customer Data stored within AWS or GCS is encrypted at all times. AWS and GCS do not have access to unencrypted Customer Data.
4. Independent Security Assessments. Segment periodically assesses the security of its systems and the Services as follows:
4.1. Annual detailed security and vulnerability assessments of the Services conducted by independent third-party security experts that include a code analysis and a comprehensive security review. Segment shall attest to Customer the date of the most recent security and vulnerability assessment at Customer’s reasonable request.
4.2. Segment hires accredited third parties to perform audits and to attest to various compliance and certifications annually including ISO 27001, 27017, and 27018.
4.3. Bi-annual penetration testing of Segment systems and applications to test for exploits including, but not limited to, XSS, SQL injection, access controls, and CSRF.
4.4. Monthly vulnerability scanning.
5. Incident Response. If Segment becomes aware of unauthorized access or disclosure of Customer Data under its control (a “Breach”), Segment will:
5.1. Take reasonable measures to mitigate the harmful effects of the Breach and prevent further unauthorized access or disclosure.
5.2. Upon confirmation of the Breach, notify Customer in writing of the Breach without undue delay. Notwithstanding the foregoing, Segment is not required to make such notice to the extent prohibited by Laws, and Segment may delay such notice as requested by law enforcement and/or in light of Segment’s legitimate needs to investigate or remediate the matter before providing notice.
5.3. Each notice of a Breach will include:
5.3.1. The extent to which Customer Data has been, or is reasonably believed to have been, used, accessed, acquired or disclosed during the Breach;
5.3.2. A description of what happened, including the date of the Breach and the date of discovery of the Breach, if known;
5.3.3. The scope of the Breach, to the extent known; and
5.3.4. A description of Segment’s response to the Breach, including steps Segment has taken to mitigate the harm caused by the Breach.
6. Business Continuity Management
6.1. Segment maintains an appropriate business continuity and disaster recovery plan.
6.2. Segment maintains processes to ensure failover redundancy with its systems, networks and data storage.
7. Personnel Management
7.1. Segment performs employment verification, including proof of identity validation and criminal background checks for all new hires, including contract employees, in accordance with applicable law.
7.2. Segment provides training for its personnel who are involved in the processing of the Customer Data to ensure they do not collect, process or use Customer Data without authorization and that they keep Customer Data confidential, including following the termination of any role involving the Customer Data.
7.3. Segment conducts routine and random monitoring of employee systems activity.
7.4. Upon employee termination, whether voluntary or involuntary, Segment immediately disables all access to Segment systems, including Segment’s physical facilities.
DATA PROTECTION ADDENDUM
This Data Protection Addendum (“Addendum”) is part of the Agreement between Segment and Customer and applies to Segment’s Processing of Customer Personal Data under the Agreement.
For purposes of this Addendum, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this Addendum have the meanings given in the Agreement.
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
b. “CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.
c. “Customer Personal Data” means any Customer Data (as defined in the Agreement) that is Personal Data. For purposes of this Addendum, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom Segment has a direct business relationship.
d. “Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data, including, where applicable, EU Data Protection Law and the CCPA.
e. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
f. “EU Data Protection Law” means European Union Regulation 2016/679 (“GDPR”) and any national legislation implementing GDPR, as amended from time to time.
g. “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
h. “Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Data Protection Laws.
i. “Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data being Processed by Segment. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.
j. “Subprocessor” means any third party authorized by Segment or its Affiliates to Process any Customer Personal Data.
k. “Third Party Subprocessor” means any Subprocessor who is not an Affiliate of Segment.
3. General; Termination
a. This Addendum forms part of the Agreement and except as expressly set forth in this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum shall govern.
b. Any liabilities arising under this Addendum are subject to the limitations of liability in the Agreement.
c. This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
d. This Addendum will automatically terminate upon expiration or termination of the Agreement.
4. Scope of this Addendum
This Addendum applies to Segment’s Processing of Customer Personal Data under the Agreement, except that Annex A (EU Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by the CCPA.
5. Role and Scope of the Processing
a. Segment will Process Customer Data only in accordance with Customer’s instructions. By entering into the Agreement, Customer instructs Segment to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by Segment as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes Segment to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.
b. For clarity, nothing in this Addendum limits Segment from transmitting Customer Data to and among Sources and Destinations as directed by Customer through the Services. The parties agree that neither Sources nor Destinations are Subprocessors of Segment and that, between the parties, Customer is solely responsible for the Processing of Customer Personal Data by, and other acts and omissions of, Sources and Destinations or parties associated therewith.
a. Customer specifically authorizes Segment to use its Affiliates as Subprocessors, and generally authorizes Segment to engage Third Party Subprocessors to Process Customer Personal Data. Segment:
(i) shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and
(ii) remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause Segment to breach any of its obligations under this Addendum.
b. A list of Segment’s Subprocessors, including their functions and locations, is available at https://segment.com/docs/legal/subprocessors/ or such other website as Segment may designate (“Subprocessor Page”), and may be updated by Segment from time to time in accordance with this Addendum.
c. When any new Third Party Subprocessor is engaged, Segment will notify Customer of the engagement, which notice may be given by updating the Subprocessor Page and via a message through Customer’s Segment Workspace. Segment will give such notice at least ten (10) calendar days before the new Subprocessor Processes any Customer Personal Data, except that if Segment reasonably believes engaging a new Subprocessor on an expedited basis is necessary to protect the confidentiality, integrity or availability of the Customer Personal Data or avoid material disruption to the Services, Segment will give such notice as soon as reasonably practicable. If, within five (5) calendar days after such notice, Customer notifies Segment in writing that Customer objects to Segment’s appointment of a new Third Party Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith and whether they can be resolved. If the parties are not able to mutually agree to a resolution of such concerns, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience.
a. Segment shall implement and maintain technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with Segment’s security standards referenced in the Agreement (“Security Measures”).
b. Customer is responsible for reviewing the information made available by Segment relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Segment’s obligations as compared to those reflected in such terms as of the Effective Date).
c. Upon becoming aware of a confirmed Security Incident, Segment shall notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of Segment’s legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps Segment recommends Customer take to address the Security Incident. Without prejudice to Segment’s obligations under this Section 7.c., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. Segment’s notification of or response to a Security Incident under this Section 7.c. will not be construed as an acknowledgement by Segment of any fault or liability with respect to the Security Incident.
d. Customer agrees that, without limitation of Segment’s obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
8. Data Subject Requests
Segment shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If Segment receives a request from a Data Subject in relation to their Customer Personal Data, Segment will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
9. Return or Deletion of Data
a. Segment shall, within sixty (60) days after request by Customer following the termination or expiration of the Agreement, delete all of the Customer Personal Data from Segment’s systems.
b. Notwithstanding the foregoing, Customer understands that Segment may retain Customer Personal Data if required by law, which data will remain subject to the requirements of this Addendum.
Annex A – EU Annex
1. Definitions; Processing of Data
a. Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Segment Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
b. Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Segment’s provision of the Services; (b) the duration of the Processing is from Segment’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Segment in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the Agreement.
d. Segment’s Compliance with Instructions. Segment will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case Segment will notify Customer (unless that law prohibits Segment from doing so).
2. Data Security
a. Segment Security Measures, Controls and Assistance
(i) Segment will (taking into account the nature of the Processing of Customer Personal Data and the information available to Segment) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.
(ii) Segment will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Segment without delay and instruct their employee to contact Segment directly via email@example.com or such other email address as directed at the time.
b. Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Segment’s Processing of Customer Personal Data, Customer will exercise such audit right, and Segment will fulfill its corresponding obligations, as follows:
(i) Segment shall make available to Customer relevant information regarding Segment’s Processing of Customer Personal Data under this Addendum in the form of Segment’s most recent ISO 27001, ISO 27017 or ISO 27018 certifications or similar audit reports (“Third Party Reports”).
(ii) Not more than once per calendar year and at Customer’s expense, Customer may audit Segment’s Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. Segment will provide written responses to the extent the requested information is necessary to confirm Segment’s compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Segment confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Segment under this Section 2.b. constitutes Segment’s Confidential Information under the Agreement.
(iii) If a third party is to conduct an audit under this Section 2.b., Segment may object to the auditor if the auditor is, in Segment’s reasonable opinion, not independent, a competitor of Segment or otherwise unqualified. Such objection by Segment will require Customer to appoint another auditor or conduct the audit itself.
(iv) Customer will promptly notify Segment of any non-compliance discovered during the course of an audit and provide Segment any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that Segment’s Processing of Customer Personal Data complies with this Addendum.
(v) Customer shall reimburse Segment for any time expended by Segment or its Subprocessors in connection with any audits under this Section 2.b. at Segment’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Addendum shall be construed to require Segment to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require Segment to breach any duties of confidentiality.
3. Impact Assessments and Consultations
Segment may (taking into account the nature of the Processing and the information available to Segment) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Segment’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.
4. Data Transfers
a. Data Processing Facilities. Segment may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Segment or its Subprocessors maintain facilities. Subject to Segment’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.
b. Privacy Shield. To the extent that Segment Processes any Customer Personal Data of individuals in the EU or Switzerland in the United States, then Segment shall protect such Customer Personal Data in accordance with the Privacy Shield Principles and Supplemental Principles of the EU-U.S. and Swiss Privacy Shield Frameworks (“Privacy Shield”). If Segment is unable to comply with this requirement, Segment shall inform Customer.
c. Standard Contractual Clauses. If Customer is established in the EU and transfers Customer Personal Data out of the EU to Segment in a country not deemed by the European Commission to have adequate data protection, and the Privacy Shield ceases to be a basis by which Customer may lawfully make such transfer to Segment under Chapter V of the GDPR, and no lawful alternative basis for such transfer applies, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this Addendum. In furtherance of the foregoing, the parties agree that:
(i) for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Segment will act as the data importer;
(ii) for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;
(iii) for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
(iv) upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
(v) the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
(vi) Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Segment of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
(vii) certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and
(viii) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.
Annex B - California Annex
1. For purposes of this Annex B, the terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA.
2. With respect to Customer Personal Data, Segment is a service provider under the CCPA.
3. Segment will not (a) sell Customer Personal Data; (b) retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Segment and Customer.
4. The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 5 of this Addendum is integral to and encompassed by Segment’s provision of the Services and the direct business relationship between the parties.
5. Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that Segment’s access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.