(a) website located at https://www.endgame.io/ and all associated web pages, websites, and social media pages (collectively, the “Website”);

(b) the Endgame platform; and

(c) services (including applications) and products accessible via the Website or otherwise made available to you by us (together with the Website and the Endgame platform the “Services”).

BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 13, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND ENDGAME WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.

We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to your access to and use of some or all of our Services (“Supplemental Terms”), including:

●      Our Acceptable Use Policy, which applies to your use of all of our Services;

●      Our Data Processing Addendum, which govern our access to Customers’ CRM data; and

●      Our Privacy Policy, which governs the use of all our Services.

Any Supplemental Terms become part of your agreement with us if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of those changes by any reasonable means, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.

1. Endgame Services

(a) Endgame Services License. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services, solely for your internal business purposes during the Term and in accordance with the product and user documentation, training materials, specifications, Acceptable Use Policies and other similar materials made available to you relating to the Services (collectively, “Documentation”). You acknowledge and agree that: (i) this license does not confer any rights to access the source code of the Services or to create derivative works based thereon; (ii) that all rights not expressly granted are reserved by us, and (iii) this license does not extend to accessing the Services’ source code, derivative creation, or any form of reverse engineering. For clarity, any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

(b) Documentation License. Subject to the terms and conditions contained in this Agreement, we hereby grant you a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for your internal business purposes in connection with your use of the Services.

2. Eligibility and Use Restrictions

(a) Age. If you are under 18 years of age (or the age of legal majority where you live), you may not use our Services.

(b) Authorization. If you register, access or use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms (other than in this Section 2(a)) will include that person or entity, (b) you represent that you are authorized to enter into these Terms on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us. If you are an entity using any Services pursuant to these Terms, you are responsible for your Authorized Users’ (including employees and representatives) use of the Services, including ensuring they comply with these Terms.

(c) Use Restrictions. You acknowledge that the Services’ Output (as defined below) are for guidance only and should not be solely relied upon for decision-making. You bear full responsibility for decisions made based on the Services’ Outputs, and we are not liable for any consequences arising from such decisions.

(d) Authorized Users. You may not allow any third party other than individuals affiliated with you (“Authorized Users”) to access or use the Services.  You may permit Authorized Users to access and use the Services as authorized pursuant to these Terms, provided that you ensure each Authorized User complies with all applicable terms and conditions of these Terms. You are liable for the acts or omissions of Authorized Users in connection with their access to and use of the Services. Your access to and use of the Services and your use of any Output must comply with these Terms. Without limiting the forgoing: (i) if you access or use our Services free of charge (such a user, a “Free User”), you may only use the Services for personal and not for any commercial purpose; (ii) if you access or use our Services through a paid subscription plan (such a user, a “Paid User”), you may use the Services for commercial purposes, but in either case, your access and use of the Services and any Output must still comply with the Acceptable Use Policy.

3. Your Information

(a) You may provide certain information to Endgame in connection with your access to or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive communications from Endgame via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Endgame in connection with the Services is accurate.

(b) Privacy Policy. For information about how we collect, use, share, and otherwise process information about you, please review our Privacy Policy.

4. Accounts

We may require that you create an account in order to use some or all of our Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. 

5. Data; GenAI Features

(a) Ownership of Customer Data. Except for Endgame Technology (as defined below), as between Endgame and Customer, Customer retains all right, title and interest in and to all information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of you or any Authorized User through the Services (“Customer Data”), including all intellectual property rights therein. For the avoidance of doubt, Customer Data excludes Endgame Technology. You grant us during the Term a non-exclusive, worldwide, royalty-free right and license to access, use, store, reproduce, publicly perform, publicly display, modify, adapt, publish, translate, create derivative works from, distribute, and otherwise process the Customer Data to the extent necessary to provide the Services to you, including, without limitation, for the purpose of hosting, operating, improving and otherwise providing the Services during the Term.

(b) Use of Customer Data. You represent and warrant that: (a) you have obtained and will obtain and continue to have, during the Term all necessary licenses, rights, consents, and permissions to use, and to authorize us to process, analyze, and use the Customer Data as contemplated by this Agreement, including personal data; and (b) our access, use and other processing of the Customer Data in accordance with these Terms will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between you and any third party. You will indemnify us against any losses, damages, liabilities, expenses, and costs (including attorneys’ fees) incurred by us as a result of a breach of this representation.

(c) Service and Model Data.   As you (including your Authorized Users) interact with the Services, the Services (i) collect Service Data (as defined below) pertaining to the performance of the Services and measures of the operation of the Services, and (ii) processes Customer Data by artificial intelligence and other algorithms to create artificial intelligence models (“Model Data”). Model Data does not identify you or Customer Data. You acknowledge that, as between Endgame and Customer, Endgame owns all right, title, and interest, including all intellectual property rights, in and to the Service Data and Model Data. Provided that the data is aggregated and anonymized, we may use Service Data and Model Data for any purpose, including, without limitation, the purposes of providing, maintaining, developing, and improving the Services and other Endgame technology. We may monitor and inspect the traffic on our network, including any related logs, as necessary to perform the Services. “Service Data” means all data, models, observations, reports, analyses, statistics, databases, and other information created, compiled, analyzed, generated, or derived by Endgame from server, network or traffic data generated by us in the course of providing the Services.

(d) Sample Data. As part of the Services, we may make available to you sample data (including from third-party sources) which you may use solely for your internal, non-production use during the Term (“Sample Data”). You acknowledge that Sample Data is example data only, which may not be complete, current, or accurate. In addition to other restrictions on how the Services may be used, you will not (and will not permit any third party to) copy or export any Sample Data and agrees that we may delete or require you to cease using Sample Data at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SAMPLE DATA IS PROVIDED “AS IS” AND ENDGAME WILL NOT PROVIDE ANY WARRANTY, INDEMNITY OR OTHER OBLIGATIONS WITH RESPECT TO SAMPLE DATA.

(e) GenAI Features. The Services may enable you to use certain features that implement one or more generative artificial intelligence models or tools (the “Generative AI Features”). The Generative AI Features may allow you to insert or upload as input text, images, video, audio or other content (“Input”). Based on the Input, you may generate and receive as output content such as text, images, video, or audio (“Output”). With the exception of our intellectual property and proprietary technology and information (including Endgame Technology) which we own, Output is deemed Customer Data and owned by you. Your access to and use of the Services, including for the purposes of providing Input to the Services and receiving Output from the Services, is subject to our Acceptable Use Policy. If you choose to make any of your information publicly available through the Services or otherwise, you do so at your own risk.

(f) Rights to your Customer Data. Except for the license you grant below, and otherwise as stated in this Agreement, as between you and Endgame, you retain all rights in and to your Customer Data.

(g) License to Customer Data. You grant us during the Term a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers) right and license to access, use, store, reproduce, display, modify, adapt, publish, translate, create derivative works of, distribute, publicly perform, publicly display, and otherwise process the Customer Data to the extent necessary to provide the Services to you, including, without limitation, for the purpose of hosting, operating, improving and otherwise providing the Services. The foregoing license includes, for clarity, the right to develop and improve our products and services, including machine learning and artificial intelligence models and rendering tools. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding Customer Data that you may have under any applicable law or under any legal theory.

(h) Necessary Rights. You may not provide Input or create Output for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that the Customer Data, and our use of the Customer Data, will not violate any rights of any person or entity, or cause injury to any person or entity.

(i) Data Deletion and Opt Out. You may request for us to delete your personal data and you may request to opt out of our use of your personal data for improving our Services. Please see our Privacy Policy https://www.endgame.io/privacy for more information.

(j) Moderation. We do not undertake to review all Customer Data, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any Customer Data. Although we have no obligation to screen, edit, or monitor Customer Data, we may:

                      (i) delete or remove Customer Data or refuse to post any Customer Data at any time and for any reason with or without notice, including for any violations of applicable law or these Terms;

                      (ii) terminate or suspend your access to all or part of the Services, temporarily or permanently, if the Customer Data is reasonably likely, in our sole determination, to violate applicable law or these Terms;

                      (iii) take any action with respect to the Customer Data that is necessary or appropriate, in our sole discretion, to ensure compliance with applicable law and these Terms, or to protect our rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and

                      (iv) as permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any Customer Data on or through the Services.

6. Our Intellectual Property

(a) Ownership. We or our licensors (other than Endgame) retain and exclusively own all rights, title and interest in and to the Services and its content (including Model Data, Service Data, data, databases, libraries, development tools, designs, software, artwork, photos, videos, music, sounds, text, information and other materials posted, provided or otherwise made available through the Services), including all intellectual proprietary rights, whether registered or not, which include, but are not limited to, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, and any authorized or unauthorized enhancements, updates, upgrades, improvements, translations, adaptations, or other modifications to or reproductions or derivative works thereof (collectively, “Endgame Technology”), subject to Endgame’s ownership of the Customer Data.

The Endgame Technology, including each of the proprietary elements described in the preceding sentence, are the sole property of Endgame and/or our licensors (other than Customer) and is protected by copyright, trademark, patent, trade secret, and other intellectual property laws and unfair competition laws of the United States, foreign jurisdictions, and international conventions.

(b) Trademarks. The name “Endgame” and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Endgame and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

(c) Feedback. You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Endgame or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in Endgame’s sole discretion. Endgame will exclusively own all improvements to, or new, Endgame products, services, or Services based on any Feedback. You understand that Endgame may treat Feedback as nonconfidential.

7. Subscription Services; Payment

(a) Subscriptions. To access and use certain Services, you may be required to enroll in a subscription payment plan (a “Recurring Subscription”). Your Recurring Subscription will automatically renew until you cancel it or your Recurring Subscription is otherwise terminated. You authorize us to store your payment method information and to automatically charge your payment method(s) for the amount of your Recurring Subscription with no further action required by you. The length of your Recurring Subscription will be provided when you make your purchase. In the event that we are unable to charge your payment method(s) as authorized by you when you enrolled in a Recurring Subscription, we may in our sole discretion (i) suspend your access to the Services until payment is received, or (ii) seek to update your payment method information through third-party sources (i.e., your bank or a payment processor) to continue charging your payment method as authorized by you. You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, we will not refund any subscription fees already paid to us. Following any cancellation, however, you will continue to have access to the applicable Services through the end of your current subscription period. Endgame may change the prices charged for Recurring Subscriptions at any time by posting updated pricing through the Services; provided, however, that the prices for your Recurring Subscription will remain in force for the duration of the subscription period for which you have paid. After that period ends, your use of the applicable Services will be charged at the then-current subscription price. If you do not agree to these price changes, you must cancel your Recurring Subscription at least thirty (30) days before the changes take effect. If you do not cancel, your Recurring Subscription will automatically renew at the then-current price at the time of renewal and for the same duration as the initial subscription term, and Endgame will charge your on-file payment card or method on the first day of the renewal of the subscription term.

(b) Payment. You represent and warrant that you have the right to use any payment method that you submit in connection with a payment. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us.  You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.

(c) Refunds and Exchanges. All sales are final. We may offer refunds in our sole discretion.

(d) Reservation of Rights. Endgame reserves the right - including without prior notice - to impose conditions on the honoring of any coupon, discount, or similar promotion, to bar any user from making any transaction, to alter the payment option for services, and to refuse to provide any user with any Service.

8. Copyright Complaints

(a) Our Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who infringe the intellectual property rights of others (our "DMCA Policy").

(b) Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringes any copyright that you own or control, you may notify Endgame’s designated agent (your notification, a “DMCA Notice”) as follows: 

By Certified Mail:       

Endgame Labs, Inc.
Attn: Copyright Agent
548 Market St. PMB 29172
San Francisco CA 94104

By Email:                    

legal@endgame.io

Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Endgame for certain costs and damages.

9. Third-party Services and Content

(a) Our Services rely on or interoperate with third-party products and services, including without limitation, hosting providers, artificial intelligence services, communications technologies, IoT platforms, third-party app stores, data storage services, communications technologies, and internet and mobile operators (collectively, “Third-Party Services”). These Third-Party Services are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services.

(b) Open-Source Materials may be utilized in connection with providing our Services and certain results from performance of the Services may contain Open-Source Materials. “Open-Source Materials” means software source code, documentation, and related source materials that are licensed to the public on an open-source basis by Endgame or one or more third-party contributors to such code, documentation, and materials, including modifications and other contributions thereto. Open-Source Materials are not part of the Services, and Customer’s and other licensees’ rights, duties, and responsibilities with respect to Open-Source Materials, including any rights to use, download, copy, modify, or redistribute Open Source Materials, will be governed solely by the terms and conditions set forth in the applicable open source license agreement, or agreements, pursuant to which such Open Source Materials are licensed to the public and not by any rights granted by Endgame to Customer pursuant to this Agreement. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for such Open-Source Materials.

(c) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.

(d) We have no obligation to monitor Third-Party Services or Third-Party Content, and we may block or disable access to any Third-Party Services or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Services may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Services). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.

10. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend (at our option), and hold harmless Endgame and our officers, directors, agents, partners, licensors, employees and agents from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to: (a) your access to or use of the Services; (b) the Customer Data or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services or the Customer Data. You will cooperate with Endgame in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys' fees). Endgame will have control of the defense or settlement, at Endgame's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Endgame.

11. Disclaimers

Your expressly acknowledge and agree that your use of the Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Services) is at your sole risk. To the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including the Lead Enhancement Information, Third-Party Content and Third-Party Services), are provided “as is” and “as available” without warranties of any kind, either express or implied. Endgame disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. You acknowledge that the Services use artificial intelligence and machine learning which are probabilistic in nature and may produce outputs that are not accurate, reliable, or appropriate. In addition, Endgame does not represent or warrant that our Services, Output, or any other content provided therein or therewith (including the Lead Enhancement Information, Third-Party Content and Third-Party Services) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Services) will be uninterrupted. While Endgame attempts to make your use of our Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Services) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Services) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services. All disclaimers of any kind (including in this Section 11 and elsewhere in these Terms) are made for the benefit of all Endgame and Endgame’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as our and their respective successors and assigns.

12. Limitation of Liability

(a) To the fullest extent permitted by applicable law, Endgame (and its affiliates, parent companies, directors, officers, agents, employees, partners, licensors, contractors, permitted successors and permitted assigns) will not be liable to you or any third party under any theory of liability (whether based in contract, tort, negligence, warranty, or otherwise) for any indirect, consequential, exemplary, incidental, punitive, special, moral, or exemplary damages whatsoever, including, without limitation, damages for lost profits, loss of data, business interruption or any other commercial damages or losses arising out of or related to this Agreement, including, without limitation, your inability to use the Services, whether or not damage was foreseeable and even if Endgame has been advised of the possibility of such damages and notwithstanding the failure of any agreed or other remedy of its essential purpose.

(b) The total liability of Endgame for any claim arising out of or relating to this Agreement or our Services, regardless of the form of the action, is limited to the greater of: (i) One Thousand Dollars (USD $1,000); and (ii) the amount paid by you to use our Services in the twelve (12) months preceding the claim.

(c) Some jurisdictions do not allow the limitation of certain damages, in which case some of the limitations above may not apply to you.

13. Dispute Resolution; Binding Arbitration

Please read this Section 13 carefully because it requires you and Endgame to arbitrate certain disputes and claims and limits the manner in which we can seek relief from each other. Arbitration precludes you and Endgame from suing in court or having a jury trial.  You and Endgame agree that arbitration will be solely on an individual basis and not as a class arbitration, class action, or any other kind of representative proceeding. Endgame and you are each waiving the right to trial by a jury.

Follow the instructions below if you wish to opt out of the requirement of arbitration on an individual basis. No class or representative actions or arbitrations are allowed under this arbitration agreement.

(a) Informal Dispute Resolution Prior to Arbitration. For any dispute or claim between you and Endgame relating to this Agreement or our Services, including any privacy or data security claims, (collectively, “Disputes”, and each a “Dispute”), you and Endgame agree to attempt to first resolve the Claim informally via the following process:

●      If you assert a Dispute against Endgame, you will first contact Endgame by sending a written notice of your Dispute to Endgame by email to legal@endgame.io. If Endgame asserts a Dispute against you, Endgame will contact you by sending a written notice of Endgame’s Dispute to you via email to the primary email address associated with your account.

●      If you and Endgame cannot reach an agreement to resolve the Dispute within thirty (30) days after you or Endgame receives the applicable notice, then either Party may submit the Dispute to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Endgame first send the applicable notice so that the Parties can engage in this informal dispute-resolution process.

(b) Disputes Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Endgame, including any disputes in which you or Endgame seek injunctive or other equitable relief for the alleged unlawful use of your or Endgame’s intellectual property or other infringement of your or Endgame’s intellectual property rights (“IP Disputes”), all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that are not resolved in accordance with Section 13(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. The arbitration shall be administered by the American Arbitration Association (“AAA”), according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to AAA’s Commercial Arbitration Rules and Mediation Procedures in effect at the time the Claim arose (the “Rules”), as modified by this Agreement.  The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court. The remedies and reliefs rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction. If you are a “Consumer,” meaning that you only use the Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between Customer and Endgame, as modified by this Agreement. The Rules are available at the AAA website www.adr.org.

(c) Arbitration Fees. Customer and Endgame will each be responsible for arbitration fees in accordance with the applicable Rules and this Agreement. If you are a Consumer and such costs are determined by the arbitrator to be prohibitive compared to litigation costs, Endgame will pay as much of Customer’s arbitration costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).

(d) Arbitration Procedure and Location. Customer or Endgame may initiate arbitration of any Claim not resolved during the informal resolution period by filing a demand for arbitration with AAA. Instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. Customer will send any demand for arbitration to Endgame by certified mail addressed to Endgame Labs Inc., 548 Market St. PMB 29172, San Francisco CA 94104 or by email to legal@endgame.io. Endgame will send any demand for arbitration to Customer by certified mail or email using the contact information Customer has provided to Endgame.

(e) Arbitrations will be conducted in the English language by a single arbitrator. Customer and Endgame agree that the arbitrator will be bound by this Agreement.

(f) For Claims in which the claimant seeks less than USD $25,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $25,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required, the hearing will take place in the Central District of the State of California, unless the arbitrator determines that this would pose a hardship for Customer, in which case the location for any in-person hearing will be determined by the applicable Rules. The arbitrator (not a judge or jury) will resolve all Claims in arbitration. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless Endgame and Customer agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

(g) One Year to Assert Claims. To the extent permitted by law, any Claim by Customer or Endgame against the other must be filed within one (1) year after the Claim arose; otherwise, the Claim is permanently barred, which means that Customer and Endgame will no longer have the right to assert that Claim.

(h) Opting Out of Arbitration. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email by certified mail addressed to:

Endgame Labs, Inc.
Attn: Legal Department – Arbitration Opt-Out
548 Market St. PMB 29172
San Francisco CA 94104

In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 13.

(i) Rejection of Future Arbitration Changes.  You may reject any change we make to Section 13 (except address changes) by personally signing and sending us notice within thirty (30) days of the change by certified mail addressed to:

Endgame Labs, Inc.
Attn: Legal Department – Arbitration Opt-Out
548 Market St. PMB 29172
San Francisco CA 94104

If you do, the most recent version of Section 13 before the change you rejected will apply.

(j) Severability. If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 13 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.

14. Governing Law

This Agreement shall be governed by the law of the state in which data exporter is established. Where such law does not allow for third party beneficiary rights, they shall be governed by the law of another state that does allow for third-party beneficiary rights. The Parties agree that any claims will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any claim is not subject to arbitration pursuant to Section 13, then the state and federal courts located in the Central District of the State of California, will have exclusive jurisdiction. You and Endgame waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the state in which he/she has his/her habitual residence. The Parties agree to submit themselves to the jurisdiction of such courts.

15. Confidentiatlity

Endgame and Customer may disclose to each other information identified at the time of disclosure as confidential or which should be reasonably known by the receiving Party to be confidential (“Confidential Information”), which may include information concerning their respective businesses and technology. The Services, Model Data, Services Data, and other Endgame Technology are the Confidential Information of Endgame, and Customer Data is the Confidential Information of Customer, in each case without any marking or further designation. Except as authorized herein, the receiving Party will (i) hold in confidence and not disclose any Confidential Information of the disclosing Party to third parties, and (ii) not use Confidential Information of the disclosing Party 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 need to know, provided that such representatives are bound to confidentiality obligations no less protective of the disclosing Party than this Section and that the receiving Party remains responsible for compliance by any such representative with the terms of this Section. These restrictions on disclosure will not apply to any information which: (a) is or becomes generally known or publicly available through no act or omission of the receiving Party; (b) is known by the receiving Party without confidentiality restriction at the time of receiving such information, as shown by written records; or (c) is furnished to the receiving Party by a third party without confidentiality restriction. 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 reasonably cooperates in any effort to obtain confidential treatment. The receiving Party acknowledges that disclosure of  the disclosing Party’s 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 will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

It will not, however, be a breach of this Section 15 or any other provision of this Agreement for Endgame to generate model outputs for another customer that are the same or similar to model Outputs generated for Customer. The Parties acknowledge that due to the nature of machine learning, models may produce the same or similar outputs in response to prompts from different customers.

16. Term; Termination

(a) The “Term” of this Agreement commences upon your acceptance of this Agreement, as evidenced by your mutually signed agreement betweeen You and Endgame, youregistering a user account or otherwise accessing or using the Services. These Terms are effective until you perform each of the following: (i) stop using our Services, (ii) uninstall and delete any copies in your possession, (iii) cancel any account, and (iv) cancel all active subscriptions. You may stop using the Services at any time. Please refer to Section 7 (Subscription Services; Payments) for information on how you can cancel your subscription or any automatic renewals. 

(b) We may terminate this Agreement at any time and for any reason by providing you with notice. Your rights under this Agreement will terminate automatically if you fail to comply with any of its provisions. 

(c) Upon expiration, termination, or cancellation of these Terms for any reason, (a) you must cease all use of the Services and uninstall and delete all copies of all apps or software included with the Services in your possession, and (b) all rights and obligations of both parties to these Terms, including all licenses granted under these Terms, will immediately terminate. The provisions of these Terms that are by their nature intended to survive termination or expiration of these Terms will so survive.  You acknowledge that following termination, you will have no further access to any Customer Data via the Services.

17. Suspension of Services

We may suspend your or any Authorized User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine: (a) your or an Authorized User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems of any other Endgame customers, or (iii) could subject us, our affiliates, or any third party to liability; (b) you are in breach of your payment obligations; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Services: (a) you remain responsible for all fees you have incurred during or prior to the period of suspension; and (b) you will not be entitled to any refund or credit for any period of suspension.  

18. Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent and warrant that you are not located in a country or territory that is subject to economic sanctions or trade embargoes imposed by the U.S. Government (including Belarus, Cuba, Iran, North Korea, Russia, Syria, and the occupied regions of Ukraine), that you are not listed on identified on any U.S. Government list of sanctioned parties, and that you will comply fully with all relevant export laws and regulations of the United States and other international trade laws applicable to your use of the Services.

19. Miscellaneous

(a) We reserve the right to modify the Services or to suspend or terminate providing all or part of the Services at any time or to charge, modify, or waive any fees required to use the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of the Services, such as by sending an email or providing a notice through the Services. All modifications and additions to the Services will be governed by these Terms, unless otherwise expressly stated by us in writing. Customer also has the right to stop using the Compute Service at any time.

(b) You will not assign, subcontract, delegate, or otherwise transfer this Agreement, or your rights and obligations hereunder, without obtaining the prior written consent of one of our authorized representatives, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be void. We may assign this Agreement or delegate our obligations hereunder, in whole or in part, without your consent, to any person or entity at any time. This Agreement will be binding upon the parties and their respective successors and permitted assigns.

(c) The Parties are independent contractors, and no employment, agency, or joint venture is created hereunder.

(d) You will not copy, imitate, or otherwise use, in whole or in part, any of our trademarks or logos, unless agreed to in writing by us.

(e) Endgame’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. This Agreement reflects the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, representations, statements, and understandings of the Parties. Except as otherwise provided herein, these Terms are intended solely for the benefit of the Parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.

(f) The section titles in these Terms are for convenience only and have no legal or contractual effect. Lists of examples following “including” or “e.g.” or similar words are not exhaustive (that is, they are interpreted to include “without limitation”). All monetary amounts are expressed in U.S. dollars. URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs. The word “or” will be deemed an inclusive “or”.

(g) If any portion of these Terms is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision(s) will be severed from these Terms; (b) severance of the unenforceable or unlawful provision(s) will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision(s) may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the Parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

(h) If you have a question or complaint regarding the Services, please send an email to support@endgame.io. You may also contact us by writing to:

Endgame Labs, Inc.
548 Market St PMB 29172
San Francisco, CA 94104

Note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

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Acceptable Use Policy

Last Updated: July 19, 2024

This Acceptable Use Policy supplements the Endgame Terms of Service (“Terms of Service”) and applies to your access and use of our Services, Inputs you provide to the Services, and your use of Outputs you create through the Services (including your use outside our Website and our Services). Capitalized terms used but not defined in this Acceptable Use Policy have the meanings set forth in the Terms of Service.

Enforcement of this Acceptable Use Policy is solely at Endgame’s discretion, and failure to enforce this Acceptable Use Policy does not constitute a waiver of our right to enforce it in other instances. This Acceptable Use Policy does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by this Acceptable Use Policy or that objectionable material will be promptly removed after it has been posted.

You agree that:

(a) You will not use our Services for any illegal or unauthorized purpose; or engage in, encourage, or promote any activity that violates the Terms of Service or this Acceptable Use Policy or that is threatening, fraudulent, or harmful in any way.

(b) You will not create Outputs or otherwise use the Services to trick, deceive, or mislead others or to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity.

(c) If you are a Free User, you will not use our Services for any commercial purpose, including for advertising.

(d) You will not, through the use of or in connection with our Services or any Outputs:

(i) Violate the rights of others, including others’ copyrights, rights of publicity, or other intellectual property rights;

       (ii) Discriminate against people based on their race, color, national or ethnic origin, religion, age, sex, gender, sexual orientation or preference, or physical ability;

       (iii) Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

       (iv) Place unauthorized automated calls (i.e., robocalls);

       (v) Create Outputs comprised of sexually explicit content;

       (vi) Create political messages and advertisements without our prior written approval;

       (vii) Create advertisements for medical devices or services or pharmaceutical products without our prior written approval;

       (viii) Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

       (ix) Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent (A) measures employed to prevent or limit access to or use of any part of our Services, or (B) restrictions aimed at deterring or preventing uses of the Services that violate this Acceptable Use Policy;

       (x) Develop or use any applications or software that interact with our Services without our authorization (such as through our APIs); or

       (xi) Use any part of our Services or Output to research and develop products, models and services that compete with Endgame.

(e) You will not sell or resell our Services.

(f) You will not use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results.

(g) You will not modify our Services, remove any proprietary rights notices or markings associated with Output or our Services, or otherwise make any derivative works based upon our Services.

(h) You will not use or attempt to use another user’s account or information without authorization from that user and Endgame.

(i) You will not use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner.

(j) You will not use our Services if you are not eligible to use our Services in accordance with the Terms of Service and will not use our Services other than for their intended purpose.

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Data Processing Agreement

This Data Processing Agreement (“DPA”) forms part of the Terms of Service between Endgame Customer (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Customer Personal Information (as such terms are defined herein).

In the course of providing the Services to Customer pursuant to the Agreement, Endgame may Process Customer Personal Information on behalf of Customer and the parties agree to comply with the following provisions with respect to such Processing of Customer Personal Information.

In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Information.

1. Definitions

1.1 Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means ownership (directly or indirectly) of more than 50% of the voting rights in the applicable entity;

“CCPA” means the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq.;

“Customer Group Member” means Customer or any Customer Affiliate;

“Customer Personal Information” means any Personal Information that is provided by Customer to Endgame or any Subprocessor and Processed by Endgame or a Subprocessor on behalf of Customer pursuant to the Agreement;

“Data Protection Laws” means all foreign and domestic laws and regulations, including without limitation, all laws and regulations of the European Union (“EU”), the European Economic Area (“EEA”) and their Member States, Switzerland and the United Kingdom (“UK”), and CCPA, in each case, if and to the extent applicable to the Processing of Personal Information under the Agreement;

“GDPR” means EU General Data Protection Regulation 2016/679;

“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or can reasonably be linked, directly or indirectly, with a particular individual or household or is otherwise defined as “personal information” or “personal data” by applicable Data Protection Laws;

“Subprocessor” means any third party appointed by Endgame to Process Customer Personal Information under the instruction or supervision of Endgame on behalf of Customer in connection with the Agreement;

"UK GDPR" means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419);

The terms, “Aggregated”, “Business”, “Controller”, “Data Subject”, “Deidentified”, “Member State”, “Processing”, “Sale”, “Service Provider” and “Supervisory Authority” shall have the same meaning as in the GDPR or the CCPA, as applicable, and their cognate terms shall be construed accordingly.

2 Processing of Personal Information

2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Customer Personal Information, Customer is the Controller or Business (as applicable), Endgame is the Processor or Service Provider (as applicable), and that Endgame will engage Subprocessors pursuant to the requirements set forth in Section 5 below. The parties acknowledge and agree that neither of them has reason to believe that the other party is unable to comply with the provisions of this DPA or otherwise that such party is in violation of any Data Protection Law. Each party will comply with the obligations applicable to it under the Data Protection Laws, including with respect to the Processing of Customer Personal Information.

2.2 Customer’s Processing of Personal Information. Customer shall not provide Personal Information to Endgame except as is necessary for Endgame’s performance of Services and unless, to the extent required under Data Protection Laws applicable to Customer, Customer shall have given the necessary notices and obtained the necessary consents, in each case, from the applicable Data Subjects whose Personal Information is Processed by Endgame for the Permitted Purposes (defined below).  Customer shall not provide Endgame with any Personal Information defined or treated as sensitive or special categories of personal data under Data Protection Laws without Endgame’s prior written consent.  Customer shall, in its use of the Services, Process Customer Personal Information in accordance with the requirements of Data Protection Laws and shall without undue delay notify Endgame if Customer is in breach of any Data Protection Law. For the avoidance of doubt, Customer’s instructions for the Processing of Customer Personal Information shall comply with Data Protection Laws. Endgame shall notify the Customer without undue delay if, in Endgame’s reasonable opinion, an instruction for the Processing of Customer Personal Information given by the Customer infringes applicable Data Protection Laws. As between the parties, Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Personal Information and the means by which Customer acquired Customer Personal Information.

2.3 Endgame’s Processing of Personal Information. Endgame shall only Process Customer Personal Information as necessary to perform its obligations on behalf of and in accordance with Customer’s documented instructions for the following permitted purposes (the “Permitted Purposes”): (i) in accordance with the Agreement and applicable order or scope of work (ii) if initiated by Data Subjects in their use of the Services; and/or (iii) to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement and Data Protection Laws. If Endgame will be required to process Customer Personal Information for any other purpose by the European Union or member state law to which Endgame is subject, Endgame shall inform the Customer of this requirement without undue delay and in any event before access is granted to the data, unless prohibited by applicable laws on important grounds of public interest. Endgame shall inform the relevant government authority that Endgame is a processor of the Personal Information and that the Customer has not authorized Endgame to disclose the Personal Information to the government authority and inform the relevant government authority that any and all requests or demands for access to the Personal Information should therefore be notified to or served upon the Customer in writing.

2.4 No Selling.  Endgame shall not: (a) Sell Customer Personal Information; (b) retain, use or disclose Customer Personal Information for any purpose other than for the Permitted Purposes; (c) retain, use, or disclose the information outside of the direct business relationship between Service Provider and Customer; or (d) combine Customer Personal Information with Personal Information Endgame receives from individuals or other customers, except as permitted by Data Protection Laws. Endgame hereby certifies that it understands the foregoing restrictions and that it shall comply with such restrictions.  In no event shall Endgame Process Customer Personal Information for its own purposes or those of any third party; provided however, Endgame may utilize Customer Personal Information in fully and irreversibly Deidentified form in connection with Endgame’s ordinary business practices, so long that no individual can be identified.

2.5 Details of the Processing. The subject-matter of Processing of Customer Personal Information by Endgame is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Customer Personal Information and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 attached hereto.

2.6 Instructions for Processing. Each Customer Group Member instructs Endgame to: Process Customer Personal Information; and in particular, transfer Customer Personal Information to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement, subject to the provisions of Section 9 below; and warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instructions set out in this section.

2.7 Compliance. Each party will comply with its obligations under Data Protection Laws. Endgame shall notify Customer if it determines that it cannot meet its obligations under Data Protection Law. Upon receiving written notice from Customer that Endgame has Processed Customer Personal Information without authorization, Endgame will take reasonable and appropriate steps to stop and remediate such Processing.

3. Rights of Data Subjects

3.1 Data Subject Request. Endgame shall, to the extent legally permitted, promptly notify Customer if Endgame receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of or objection to Processing and/or the Sale of information, erasure (“right to be forgotten”), data portability or any other request with respect to Personal Information of the applicable Data Subject as set forth under applicable Data Protection Laws (“Data Subject Request”). Taking into account the nature of the Processing and the Customer Personal Information, Endgame shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request directly, Endgame shall, upon Customer’s written request, exercise reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Endgame is legally permitted to do so. To the extent legally permitted, Customer shall be responsible for any out-of-pocket costs, including outside counsel fees and expenses, arising from Endgame’s provision of such assistance.

4. Agency Personnel

4.1 Confidentiality. Endgame shall ensure that its personnel engaged in the Processing of Customer Personal Information are informed of the confidential nature of the Customer Personal Information and bound by confidentiality obligations and have received appropriate training regarding the Processing of Customer Personal Information.

4.2 Limitation of Access. Endgame shall ensure that Endgame’s access to Customer Personal Information is limited to those personnel performing Services in accordance with the Agreement and on a “need to know” basis.

4.3 Policies. Certain policies are available for Customer to review as part of Endgame’s standard security package upon written request to Customer’s Endgame Customer Success Manager, at most annually.

5. Subprocessors

5.1 Appointment of Subprocessors. Endgame makes available to Customer the current list of Sub-processors used by Endgame to process Personal Information as detailed in Schedule 3 (the “List”). The List as of the date of first use of the Services by Customer is hereby deemed authorized upon first use of the Services. With respect to the Processing of Customer Personal Information, each Customer Group Member authorizes Endgame to appoint (and permit each Subprocessor appointed in accordance with this Section 5.1 to appoint) new Subprocessors which are not stated in the List in accordance with this section 5 (“New Subprocessors”). Endgame may continue to use those Subprocessors already engaged by Endgame as of the date of this DPA as detailed in the List, subject to Endgame’s meeting the obligations set out in this section.  Endgame has entered (or shall enter with respect to New Subprocessors) into a written agreement with each Subprocessor containing data protection obligations similar or substantially similar to those in this Agreement with respect to the protection of Customer Personal Information to the extent applicable to the nature of the Services provided by such Subprocessor, and in particular those agreements shall include obligations to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the GDPR.  Where a Subprocessor fails to fulfil its data protection obligations concerning its Processing of Personal Information, Processor shall remain responsible for the performance of the Subprocessor's obligations.

5.2 Notification of New Subprocessors and Customer’s Right to Object. Endgame shall give Customer written notice of the appointment of any New Subprocessor, including details of the Processing to be undertaken by the New Subprocessor. If, within ten (10) business days of receipt of that notice, Customer (acting reasonably and in good faith) notifies Endgame in writing of any objections to the appointment, Endgame shall cease disclosing any Customer Personal Information to the proposed New Subprocessor until reasonable steps have been taken to address the objections (including but not limited to, performing reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Information by the New Subprocessor without unreasonably burdening the Customer) raised by any Customer Group Member and Customer has been provided with notice thereof. If Endgame is unable to make available such change within thirty (30) days, either party may terminate the Agreement and this DPA by providing written notice to the other party. All amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Endgame.

6. Security

6.1 Controls for the Protection of Customer Data. Endgame shall maintain appropriate technical and organizational measures designed to protect the security (including against unauthorized or unlawful Processing of, and against accidental or unlawful destruction, loss or alteration, unauthorized disclosure of, or access to, Customer Personal Information), confidentiality and integrity of Customer Personal Information and provide the level of protection required by Data Protection Laws; and Endgame shall monitor compliance with these measures in accordance with its internal information security program. Upon the Customer’s request, Endgame will assist Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and the information available to Endgame.

6.2 Audit; Data Protection Impact Assessment.

6.2.1 Upon written request, Endgame shall provide Customer with a copy of Endgame’s SOC 2 Report no more than annually. Endgame shall continue to be SOC 2 compliant during the provision of the Services to the Customer. Endgame shall reasonably cooperate with Customer, in relation to any audit of Endgame which is necessary to enable Customer to comply with its obligations under GDPR and/or to receive information necessary to demonstrate Endgame’s compliance with applicable Data Protection Law (“Audit”). Any such Audit shall be (i) at Customer’s expense (except where the Customer suffers a Data Security Incident), (ii) subject to a mutually agreed upon scope, (iii) conducted by the Customer and/or by an independent third party who has signed a nondisclosure agreement with the applicable Endgame or Subprocessor audited party (“Auditor”), and (iv) subject to the confidentiality obligations set forth in the Agreement and any confidentiality obligations imposed by Endgame’s Subprocessors. Any information disclosed in connection with such Audit shall be the Confidential Information of Endgame (and/or Subprocessor, as the case may be).

6.2.2 Customer accepts that certain sensitive information in relation to information technology and security will be redacted before being audited and may only be audited in a manner reasonably determined by Endgame.  Customer shall use reasonable endeavors to minimize any disruption caused to Endgame’s business activities as a result of such Audit. No Audit shall last more than five (5) business days each time unless a longer period is required to fulfil any request or comply with any requirement of any regulator. Audits shall take place no more than once in any calendar year unless and to the extent that Customer (acting reasonably and in good faith) has reasonable grounds to suspect any material breach of this DPA by Endgame, and except where Endgame suffers a Data Security Incident, in which case Endgame shall allow the Customer to perform additional audits at reasonable intervals.

6.2.3 For the avoidance of doubt, all information obtained by Customer pursuant to any Audit shall be maintained in confidence by Customer and may not be disclosed to any third party, including, without limitation, any other agents or representatives of Customer, except to the extent necessary to assert or enforce any of Customer’s rights under this DPA or if otherwise required to be disclosed by Data Protection Law, by any Supervisory Authority or by a court or other authority of competent jurisdiction. If any such disclosure is so required, Customer agrees to give Endgame as much advance notice of the disclosure as possible (where notice of disclosure is not prohibited) and Customer shall meaningfully consult with Endgame (unless legally prohibited from doing so) in relation to the content and scope of the disclosure.

6.2.4 Upon Customer’s request, Endgame shall provide Customer with reasonable cooperation and assistance, at Customer’s cost, needed to fulfil Customer’s obligation under the GDPR or any applicable Data Protection Law, to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is reasonably available to Endgame. Endgame shall provide reasonable assistance to Customer in the cooperation or prior consultation with the applicable Supervisory Authority in the performance of its tasks relating to this Section of this DPA, to the extent required under the GDPR or any applicable Data Protection Law.

7. Customer Data Incident Management and Notification

Endgame maintains security incident management policies and procedures and shall notify Customer without undue delay (and in any event within 72 hours) and in line with the timelines required by applicable Data Protection Laws after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Information that is transmitted, stored or otherwise Processed by Endgame or its Subprocessors (a “Data Security Incident”). Endgame shall make efforts to identify the cause of such Data Incident and take those steps as Endgame deems reasonably necessary in order to remediate the cause of any such Data Security Incident to the extent the remediation is within Endgame’s reasonable control. Endgame shall have no liability for costs arising from a Data Security Incident unless caused by Endgame’s breach of this DPA or other violation of Data Protection Laws by Endgame. In the event of a Data Security Incident, Customer shall be responsible for notifying Data Subjects and or Supervisory Authorities. Before any such notification is made, Customer shall consult with and provide Endgame an opportunity to comment on any notification made in connection with a Customer Data Incident unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. Notifications made pursuant to this section will describe, to the extent possible, details of the Data Security Incident and number of records affected, the category and approximate number of affected Data Subjects including steps taken to mitigate the potential risks and, as applicable, steps Endgame recommends Customer to take to address the Data Security Incident.

8. Return and Deletion of Customer Data

Endgame shall, on the written request of Customer and solely to the extent required by Data Protection Laws, return all Customer Personal Information to Customer and/or at Customer's request delete the same from its systems, so far as is reasonably practicable and other than any back-up copies which Endgame or its Affiliates are required to retain for compliance with applicable laws or regulatory requirements or otherwise pursuant to Endgame’s internal data backup procedures, provided that such copies are kept confidential and secure in accordance with this DPA and the Agreement.

9. Transfer Mechanisms for Data Transfers

9.1 If the Processing of Customer Personal Information includes transfers from the EEA, Switzerland, and the UK to countries which are deemed to provide inadequate levels of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, Switzerland, and/or the UK as relevant (“Adequacy Decision(s)”), as applicable, then no further safeguards shall be necessary.

9.2 If the Processing of Customer Personal Information by Endgame includes a transfer (either directly or via onward transfer):

(i) From the EEA or Switzerland to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Endgame for the lawful transfer of personal data (as defined in the GDPR) outside the EEA or Switzerland (“EEA Transfer”), the terms set forth in Part 1 of Schedule 2 (EEA Cross Border Transfers) shall apply;

(ii) Where Customer Personal Information originating in Switzerland is subject to an EEA Transfer, the terms set forth in Part 1 of Schedule 2 (EEA Cross Border Transfers) are modified as follows: the competent supervisory authority in Annex I.C under Clause 13 shall be the Federal Data Protection and Information Commissioner; nothing will prohibit data subjects in Switzerland from suing for their rights in Switzerland; and references to “GDPR” in the SCCs will be understood as references to the Swiss Federal Act on Data Protection of 10 June 1992;

(iii) From the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Endgame for the lawful transfer of personal data (as defined in the UK GDPR) outside the UK (“UK Transfer”), the terms set forth in Part 2 of Schedule 2 (UK Cross Border Transfers) shall apply;

(iv) The terms set forth in Part 3 of Schedule 2 (Additional Safeguards) shall apply to an EEA Transfer and a UK Transfer.

10. Governing Law

Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses as set forth in Part 1 of Schedule 2, the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and this DPA and is governed by the laws of the country or territory stipulated for this purpose in the Agreement.

11. Modifications

Each Party may by at least forty-five (45) calendar days' prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Information to be made (or continue to be made) without breach of those Data Protection Laws. Pursuant to such notice: (a) The Parties shall make commercially reasonable efforts to accommodate such modification requested by Customer or that Endgame believes is necessary; and (b) each Party shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by the other Party. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s or Endgame’s notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days of such notice, then Customer or Endgame may, by written notice to the other Party, with immediate effect, terminate the Agreement. Endgame will have no further claims against the Customer pursuant to the termination of the Agreement and the DPA as described in this Section.

SCHEDULE 1
Details of Processing of Customer Personal Information

This Schedule 1 includes certain details of the Processing of Customer Personal Information as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Customer Personal Information

The subject matter of the Processing of the Customer Personal Information by Endgame is the performance of the Services pursuant to the Agreement. Endgame will Process Customer Personal Information for the duration of the Agreement, unless otherwise agreed upon in writing.

The nature and purpose of the Processing of Customer Personal Information

Endgame will Process personal information as necessary to perform the Services pursuant to the Agreement and this DPA, and to act upon Customer’s written instructions in accordance with the Agreement and this DPA.

The types of Customer Personal Information to be Processed

Customer may submit personal information to the Services, the extent of which is typically determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following types of personal data:

• First and last name
• Email
• Telephone number
• Contents of emails
• Recordings and transcripts of phone calls and video conferences

The categories of Data Subjects to whom the Customer Personal Information relates

• Customer’s authorized personnel with access to the Customer’s Endgame account
• Users of Customer’s products and services

The obligations and rights of Customer and Customer Affiliates

The obligations and rights of Customer and Customer Affiliates are set out in the Agreement and this DPA.

SCHEDULE 2
Cross Border Transfers

Part 1 – EEA Transfers
Standard Contractual Clauses

Controller to Processor

SECTION I

Clause 1
Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2
Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3
Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);

(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4
Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5
Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6
Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Omitted

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8
Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9
Use of sub-processors

(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10
Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11
Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12
Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13
Supervision

(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14
Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15
Obligations of the data importer in case of access by public authorities

15.1. Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2. Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16
Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17
Governing law

These Clauses shall be governed by the law of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18
Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of Ireland.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

Annex I (A, B, C)
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix

Data exporter
The data exporter is the Customer identified in the Agreement.
…
…

Data importer
The data importer is (“Endgame”).
…
…

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
Customer’s authorized personnel with access to the Customer’s Endgame account;
Users of Customer’s products and services.
…
…

Categories of data

The personal data transferred concern the following categories of data (please specify):
Categories of personal data are typically determined and controlled by Customer in its sole discretion, and may include, but is not limited to the following types of personal data:

• First and last name
• Email
• IP address
• Product Usage Data
• Sales Data
…
…

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Endgame does not intentionally collect or process any special categories of personal data in the provision of its services.
…

Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
Storage and other processing necessary to provide the Service to Customer pursuant to the Agreement, and to maintain and improve such Service; and/or
Disclosures in accordance with the Agreement and/or as compelled by applicable law.…

Current Subprocessors
You can find an updated list of Sub-Processors in our documentation guide here.
…

DATA EXPORTER
Name: The Customer identified in the Agreement.

DATA IMPORTER
Name: Endgame Labs, Inc.

Annex II
to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with the terms above:

Endgame Labs, Inc. (“Endgame”) will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data transmitted to the Services, as described in the Agreement and Endgame Information Security Policy (“Policy”) already shared with the data exporter and also made available to the data exporter upon written request. The Policy provides a structured approach to managing information security risks. In addition, the Policy serves to protect Endgame and all sensitive data. This includes protecting the integrity of such information and the computing environment, including the devices that store, process and transmit sensitive data (e.g., workstation, laptop, server, mobile device, application, database, etc.), by minimizing unauthorized access to the data and Endgame’s networks.

PART 2 – UK Transfers

1. This Part 2 is effective from the same date as the Standard Contractual Clauses as set forth in Part 1 above.

Background:

2. This Part 2 is intended to provide appropriate safeguards for the purposes of transfers of Personal Data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and with respect to data transfers from controllers to processors and/or processors to processors.

Interpretation:

3. Where this Part 2 uses terms that are defined in the Standard Contractual Clauses, those terms shall have the same meaning as in the Standard Contractual Clauses. In addition, the following terms have the following meanings:

UK Data Protection Laws: All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

UK GDPR: The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.

UK: The United Kingdom of Great Britain and Northern Ireland

4. This Part 2 shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that it fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR.
   
   

5. This Part 2 shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
   
   

6. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, reenacted and/or replaced after this DPA has been entered into.
   
   

7. In the event of a conflict or inconsistency between this Part 2 and the provisions of the Standard Contractual Clauses or other related agreements between the Parties, existing at the time the DPA is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.
   
   

8. This Part 2 incorporates the Standard Contractual Clauses which are deemed to be amended to the extent necessary so they operate:
   a. for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and
   b. to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
   
   

9. The amendments required by Section ‎8 above, include (without limitation):
   a. References to the “Clauses” means this Part 2 as it incorporates the Standard Contractual Clauses.
   b. Clause 6 Description of the transfer(s) is replaced with:
   “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”
   c. References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
   d. References to Regulation (EU) 2018/1725 are removed.
   e. References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
   f. Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner;
   g. Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
   h. Clause 18 is replaced to state:
   “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
   i. The footnotes to the Clauses do not form part of this Part 2.
   
   

10. The Parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.
    
    

11. The Parties may amend this Part 2 provided it maintains the appropriate safeguards required by Art 46 UK GDPR for the relevant transfer by incorporating the Standard Contractual Clauses and making changes to them in accordance with Section 8 above.
    
    

12. The Parties may give force to this Part 2 (incorporating the Standard Contractual Clauses) in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in the Contractual Clauses.

PART 3 – Additional Safeguards

1. In the event of an EEA Transfer or a UK Transfer, the Parties agree to supplement these with the following safeguards and representations, where appropriate:
   
   a. Endgame shall have in place and maintain in accordance with good industry practice measures to protect the Customer Personal Information from interception (including in transit from Customer to Endgame and between different systems and services). This includes having in place and maintaining network protection intended to deny attackers the ability to intercept data and encryption of Customer Personal Information whilst in transit and at rest intended to deny attackers the ability to read data.
   b. Endgame will make commercially reasonable efforts to resist, subject to applicable laws, any request for bulk surveillance relating to the Customer Personal Information protected under GDPR or the UK GDPR, including under section 702 of the United States Foreign Intelligence Surveillance Act (“FISA”);
   c. If Endgame becomes aware that any government authority (including law enforcement) wishes to obtain access to or a copy of some or all of the Customer Personal Information, whether on a voluntary or a mandatory basis, then unless legally prohibited or under a mandatory legal compulsion that requires otherwise:
   
   I. Endgame shall inform the relevant government authority that Endgame is a processor of the Customer Personal Information and that Customer has not authorized Endgame to disclose the Customer Personal Information to the government authority, and inform the relevant government authority that any and all requests or demands for access to the Customer Personal Information should therefore be notified to or served upon Customer in writing;
   
   II. Endgame will use commercially reasonable legal mechanisms to challenge any such demand for access to Customer Personal Information which is under Endgame’s control. Notwithstanding the above, (a) Customer acknowledges that such challenge may not always be reasonable or possible in light of the nature, scope, context and purposes of the intended government authority access, and (b) if, taking into account the nature, scope, context and purposes of the intended government authority access to Customer Personal Information, Endgame has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual or entity, this subsection (e)(II) shall not apply. In such event, Endgame shall notify Customer, as soon as possible, following the access by the government authority, and provide Customer with relevant details of the same, unless and to the extent legally prohibited to do so.
   
   

2. Once in every 12-month period, Endgame will inform Customer, at Customer’s written request, of the types of binding legal demands for Customer Personal Information it has received and solely to the extent such demands have been received, including national security orders and directives, which shall encompass any process issued under section 702 of FISA.