EU Data Act Switching & Portability Addendum
This EU Data Act Switching & Portability Addendum (“Addendum”) applies only where required by applicable law (i.e., to Customers located in the European Union who utilize certain Services that qualify as “data processing services” under the EU Data Act, Regulation (EU) 2023/2854 (the “Act”)). For the avoidance of doubt, this Addendum does not apply to trial accounts, proof-of-concept deployments, or custom or non-standard implementations of the Services. This Addendum is incorporated by reference into the Terms of Service solely to the extent legally required. Capitalized terms used in this Addendum that are not otherwise defined herein shall have the meaning assigned to them in the Act or the Agreement.
1. Switching and Portability Rights
Without prejudice to the Digital Content Directive (Directive (EU) 2019/770), the Parties agree that:
1.1 Definitions. For purposes of this Addendum:
1.1.1 The term “Switching Notice” means Customer’s written request to GoTo’s Customer Care organization with the options to (i) initiate a switch from the Services or parts of the Services to an alternate data processing service or on-premise ICT infrastructure; or (ii) terminate the Agreement; and request deletion of Customer’s Exportable Data and Digital Assets that are generated directly by Customer, or that relate to Customer.
1.1.2 The term “Notice Period” means (a) for month-to-month subscriptions, the thirty (30) calendar day period following GoTo’s receipt of Customer’s Switching Notice; or (b) for all other term subscription lengths, the sixty (60) calendar day period following Customer’s Switching Notice.
1.1.3 The term “Switching Process” means the Customer’s transition of Services to another provider or providers or to an on-premise information and communications technology infrastructure during a thirty (30) calendar day Transitional Period following the Notice Period, during which the Agreement will remain in full force and effect.
1.2 Effective Date of Termination.
GoTo hereby notifies Customer of the Agreement termination effective date as follows: (a) the first day following the Notice Period, if the Customer requested deletion of its Content and termination of Services; or (b) upon the successful completion of the Switching Process.
1.3 Switching Process & Transitional Period
1.3.1 Customer initiates the Switching Process by providing the Switching Notice to GoTo. The Switching Notice includes information about the option chosen by the Customer and whether Customer wishes to switch all Services or only certain Services. If Customer switches to a different provider or to different providers, Customer provides necessary details to GoTo of the other provider(s).
1.3.2 Reasonable Assistance. During the Transitional Period, Customer shall take all reasonable measures to achieve effective switching or act in good faith, including to the extent possible, self-export Exportable Data and Digital Assets directly from the Services as instructed by GoTo and otherwise implementing any instructions, tools, or documentation shared by GoTo. GoTo shall:
- (i) without unreasonable delay, to the extent technically feasible and commercially reasonable, and in accordance with Customer’s instructions, provide: (a) an export of Customer’s Exportable Data and Digital Assets, to the extent not already accessible through self-service functionality; (b) access instructions for Customer’s Exportable Data and Digital Assets, where reasonably requested; (c) information on available switching and porting methods, formats, and known technical limitations applicable to the relevant Services and Customer’s Exportable Data and Digital Assets; and (d) reasonable technical support
- (ii) continue to provide the Services in accordance with the terms of the Agreement to support business continuity during the Transitional Period;
- (iii) inform Customer of any risks known to GoTo in the continuity of Services during the Transition Period, where reasonably practicable; and
- (iv) provide a secure means for Customer to access and transfer its Exportable Data and Digital Assets, subject to the technical capabilities of the applicable Service and in accordance with the Agreement and applicable Union or member state law.
1.4 Extensions of the Transitional Period.
1.4.1 Customer may request a one-time extension to the Transitional Period by contacting GoTo’s Customer Care Organization prior its expiration.
1.4.2 If GoTo reasonably determines that it is technically infeasible to complete Customer’s transition by the end of the Transitional Period, GoTo shall notify Customer within fourteen (14) business days of receipt of Customer’s Switching Notice or extension request. In its notification, GoTo shall (a) explain the technical infeasibility, and (b) and propose an extended period (not exceeding seven months from Customer’s Switching Notice).
1.5 Retrieval Period. Customer’s Exportable Data and Digital Assets will remain available to Customer for thirty (30) calendar days following the expiration of the Transitional Period provided that the Switching Process has been successfully completed, following which GoTo shall delete them, except for the Customer’s Exportable Data which GoTo is required or permitted to store under EU or national laws.
1.6 Customer’s Exportable Data and Digital Assets. GoTo maintains a Service-specific list of Exportable Data and Digital Assets here (including exclusions required to protect GoTo’s trade secrets). Exportable Data and Digital Assets do not include Service Data; GoTo code, or any assets or data that are protected by intellectual property rights or that constitute the confidential information or trade secret of GoTo or any other third party, exclusive of Customer.
1.7 Termination Fee. If Customer’s Switching Notice results in an early termination of Customer’s Agreement, then accordance with Article 29(4) of the Act:
1.7.1 Customer will not receive or be issued a refund for unused, prepaid portions of the applicable subscription term, and all outstanding amounts invoiced and not yet paid become immediately due and payable on the earlier of their original due date or the effective date of termination; and
1.7.2 The full remaining balance of the committed and un-invoiced fees for the applicable subscription term shall become immediately due and payable as of the effective date of termination.
1.8 Switching Fees. For all requests made under this Addendum prior to 12 January 2027, GoTo reserves the right to apply switching charges in the amount of €250 per hour spent directly on supporting Customer’s Switching Process.
1.9 Month-to-Month Conversion. If Customer provides a Switching Notice at least thirty (30) calendar days prior to the end of its then-current annual subscription term, then, solely to facilitate Customer’s exercise of its switching right, the Agreement shall continue on a month-to-month basis at GoTo’s then-current list price until the Switching Process is complete. No early termination fee shall apply in connection with such extension.
1.10 Hierarchy. In the event of any conflict or inconsistency between this Addendum and other contractual arrangements between GoTo and Customer, this Addendum will take precedence.
