EU Data Act Contract Clauses for "data processing services"

Further information about your rights pursuant to the EU Data Act (Regulation (EU) 2023/2854) and how KM complies with the legislation can be found here.

Introduction

These clauses apply to the service(s) identified as a “data processing service” as defined in Regulation (EU) 2023/2854 (the “Data Act”) in the relevant quotation/offer (the "Service").

Right to Switch 

The Customer is entitled to transition to another provider that offers services comparable to the Service, to select an on-premises provider, or to delete any data or digital assets that can be exported. This section of the agreement outlines the terms and conditions under which the Customer may exercise these rights. If the Customer chooses to switch to a different provider:

(a)    The Customer may terminate the agreement for the purpose of switching to another data processing service provider or to an on-prem ICT infrastructure upon no more than sixty (60) days' written advance notice (the "Termination Period"). If the Customer intends to switch to another provider, the notice of termination must include the identity of the new provider to which the data will be migrated.

(b)    Following the 60-day Termination Period, a subsequent 30-day period (the “Transition Period”) will begin. If it is technically not feasible to provide the data within this Transition Period, KM must notify the Customer within 14 days and indicate an alternative transitional period, which shall not exceed 7 months. The Customer may extend the transitional period once for a period that the Customer considers more appropriate for its own purposes. Throughout the Transition Period, KM will continue to deliver the Service, offer reasonable assistance with the switching process, and provide information regarding any risks that may affect the continuity of ongoing services. 

(c)    KM shall support the Customer's exit strategy.   

(d)    Following the lapse of the Transitional Period, there shall be a period of 30 days to retrieve the data (the "Retrieval Period").
During the switching period, the Customer acknowledges that there may be risks to service continuity during the transition period. Relevant risks are specified in the relevant quotation/offer.

The Exportable Data

Additional details regarding the exportable data/digital assets and the types of data we process in order to deliver our services are included in the relevant quotation/offer.

Termination of the Service(s)

The agreement between KM and the Customer shall be deemed terminated when either of the following apply: 

(a)    Upon the successful completion of the switching process; or

(b)    Upon the lapse of the Transition Period where the Customer wishes to have all data erased.  

The termination of the agreement has the effect that, following the lapse of the Retrieval Period, all Customer exportable data and digital assets generated by the Customer will be deleted. Please note that this does not include any data that cannot be exported and is necessary to ensure the continuity of the Service.

Switching Fees

We will aim to provide the switching process free of charge. However, due to the technical work required to extract your data, minimal fees may apply. Please note that these fees will only be relevant until 12 January 2027. The applicable standard service fees are detailed in the relevant quotation/offer.

Exceptions for Custom-built Components

For the avoidance of doubt, and in accordance with the Data Act, certain obligations deriving therefrom shall not apply where the Customer receives components that are custom-built and not offered on a broad commercial scale.

Insofar as this is relevant:
•    KM shall not be under a duty to ensure that the Customer achieves functional equivalence in use for a new data processing service in the ICT environment of a different provider of data processing services; 
•    the provisions regarding gradual withdrawal of switching charges shall not apply; and 
•    KM shall not be under a duty to ensure that the Customer achieves functional equivalence to using the Service and compatibility with common specifications based on open interoperability specifications or harmonised standards for interoperability.