1. Purpose and Scope
This Addendum forms part of, and is incorporated into, the Agreement under which the Cloud Services are provided (“Master Agreement”). It applies to all access, resale, or use of the Services by Partner, Customer, their Affiliates, and every End User.
2. Definitions
“Trade Control Laws” means collectively: (i) the U.S. Export Administration Regulations, 15 C.F.R. § 730 et seq. (“EAR”); (ii) the International Traffic in Arms Regulations, 22 C.F.R. § 120 et seq. (“ITAR”); (iii) economic sanctions programs administered by OFAC (e.g., 31 C.F.R. § 500-598) including Directive 4 restrictions on deep-water, Arctic offshore, and shale energy projects involving the Russian Federation; (iv) EU, UK, UN or other comparable export control or sanctions regimes; and (v) related enabling laws, amendments, and executive orders.
“Restricted Person” means any individual or entity that is: (a) listed on the U.S. SDN, BIS Entity or Denied Persons lists, EU Consolidated List, or UK Sanctions List; (b) owned 50 percent or more, or otherwise controlled, by such listed persons; or (c) located in, organized under the laws of, or ordinarily resident in a comprehensively sanctioned territory (e.g., Cuba, Iran, North Korea, Syria, or Crimea/DNR/LNR).
3. Representations and Covenants
Each Party represents, warrants, and covenants that it, its Affiliates, and its End Users:
- Are not Restricted Persons and are not owned or controlled by any Restricted Person;
- Will not export, re-export, transfer, or provide the Services, underlying technology, source code, or data in breach of any Trade Control Laws;
- Will not use the Services in support of exploration or production for deep-water, Arctic offshore, or shale projects that have the potential to produce oil in the Russian Federation or maritime areas claimed by it.
4. Screening and Flow-Down
Partner and Customer must:
- Implement screening procedures reasonably designed to block access for Restricted Persons;
- Contractually flow down obligations at least as strict as this Addendum to all resellers, subcontractors, and End Users, and furnish Newo evidence of such flow-down upon request.
5. Notification & Cooperation
The Party discovering an actual or suspected violation of Trade Control Laws relating to the Services must notify Newo within twenty-four (24) hours and cooperate in any investigation, license application, or voluntary self-disclosure.
6. Audit & Records
Upon ten (10) business days’ notice, Newo may audit relevant records or request reasonable certifications to verify compliance. Records required by Trade Control Laws must be retained for five (5) years after the later of: (i) termination of the Master Agreement or (ii) the last export/re-export transaction.
7. Suspension and Termination
Newo may immediately suspend or terminate access to the Services, without liability, if it reasonably believes a Party or End User is in breach of this Addendum or any Trade Control Law. Where a change in Trade Control Laws makes performance illegal, either Party may terminate the affected portion of the Master Agreement on thirty (30) days’ written notice.
8. Indemnification
Each Party will indemnify, defend, and hold harmless the other Party from penalties, fines, and reasonable costs arising out of its breach of this Addendum or applicable Trade Control Laws.
9. Updates to Laws
References to statutes and regulations include successor and amended provisions. Newo may update this Addendum to reflect mandatory changes in Trade Control Laws; updates take effect on the later of: (i) thirty (30) days after notice or (ii) the effective date required by law. If an update materially and adversely affects Partner’s or Customer’s lawful use of the Services, that Party may terminate the impacted Services for a pro-rata refund.
10. Survival
Sections 3-9 survive termination or expiration of the Master Agreement.