Data Act Addendum (EU Data Act)
Applicable only for Customers established in the European Union.
1. Scope
This Data Act Addendum (“Addendum”) is incorporated into the Customer Agreement in respect of the Storage Services provided by Megaport (“Processor”) to Customer under the applicable Storage Service Schedule (“Storage Schedule”) each a “Party” and collectively the “Parties”.
This Addendum establishes the terms and conditions that enables the Customer, to exercise their switching/deletion/retrieval rights according to Chapter VI of the Regulation (EU) 2023/2854 of The European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (“EU Data Act”).
The Addendum is only applicable to: I. Customer registered and with a billing address within the European Union. II. Customers with non-pending bills with Megaport. III. Customers with a valid and current Storage Schedule. IV. The Customer is not using the services as a proof of concept, the services provided are beta versions or the services part of the Storage Schedule is a tailored solution for the Customer that is not offered by Megaport to other Customers.
Capitalized terms not defined in this Addendum, have the meanings given in the Agreement and the Storage Schedule.
2. Definition
Agreement: Is the Global Service Agreement between the Customer and Megaport.
Data Assets: Information stored in the services as block storage service, object storage service or file storage service by the Customer in the Storage services provided by Megaport and explicitly excluding Megaport’s proprietary platform information, infrastructure data and trade secrets.
Data Processing Service: means a digital service provided to the Customer that enables ubiquitous and on-demand network access to a shared pool of configurable, scalable, and elastic cloud computing resources.
Destination Provider: The alternative third-party provider of data processing services selected by the Customer to receive the migrated Exportable Data during a Switching process.
Exempt Data: Any data, metadata, metrics, or infrastructure logs explicitly excluded from the scope of a Switching Request as set forth in Section 5(b) of this Addendum.
Exportable data: Is the input and output data, including metadata, directly or indirectly generated, or cogenerated, by the Customer’s use of the Data Processing Service, excluding any assets or data protected by intellectual property rights, or constituting a trade secret, of Megaport or other third-parties as defined in Section 5(a).
Megaport: means the relevant Group entity providing the Services to Customer and listed here. ← link the word “here”
Notice Period: means the two (2) months period that begins once Megaport has received and validates a complete Switching Request. The period starts once the Switching Request is received.
Storage Schedule: Is the schedule attached to the Global Services Agreement that governs the storage services provided by Megaport.
Switch/Switching: means the process whereby the Customer changes from Megaport’s services to using another data processing service of the same service type, or other service, offered by a different provider of data processing services, or to an on-premises ICT infrastructure, including through extracting, transforming and uploading the data.
Transitional Period: The data migration phase that begins immediately after the expiration of the Notice Period, granting the Customer a maximum baseline of thirty (30) calendar days to extract, erase, or move their Exportable Data, subject to any technical unfeasibility extensions granted by Megaport in accordance with Section 3(f) of this Addendum.
3. Switching process
a. Switching Request: To start a Switching Request the Customer must submit a formal written request by email to privacy@megaport.com specifying the following information: i. In detail which (specific) Data Assets (buckets, blocks, files or objects) will be Switching. ii. The intended destination of the Data Assets switching to a different provider, to an on-premises ICT infrastructure or an explicit declaration if they instead prefer to completely erase their Data Assets without a migration pathway. iii. The requested operational timeframe and window for when the Switching will take place. iv. If the Customer will engage with a third-party (migration specialist or Destination provider), must provide the information and contact details to securely share necessary technical information to facilitate the Switching.
b. Eligibility Validation: Upon receipt of the Switching Request, Megaport will validate that the Customer fully complies with the geographic, financial, and operational conditions outlined on Section 1 of this Addendum.
c. Notice Period: Once Megaport has successfully received and validated all required information within the Switching Request, the Notice Period will commence for a term of two (2) months.
d. Transitional Period: Following the formal expiration of the Notice Period, the Customer shall be granted a maximum baseline of thirty (30) calendar days to actively extract, erase, or move their Exportable Data.
e. Business continuity: During the Notice Period, Transitional Period and any Post-Switch Retrieval period according to section 7a. (including the extension due to technical unfeasibility) the underlying Storage Schedule remains fully active. All storage infrastructure and network services utilized during these periods remain fully billable to the Customer according to the rates and terms established in the Storage Schedule.
f. Unfeasibility extension: If Megaport determines that technical limitations or the volume of the Exportable Data or Data Assets render migration within the standard 30-day Transitional Period impossible, Megaport will notify the Customer within fourteen (14) business days from receipt of the initial Switching Request about the technical unfeasibility and establish a migration timeline that shall not exceed seven (7) months from the conclusion of the Notice Period.
4. Megaport and Customer obligations
a. Megaport Obligations. To ensure the correct Switching of the Customer’s Data Assets, Megaport will: i. Maintain basic service availability and platform security for the underlying storage infrastructure in accordance with the Storage Schedule. ii. Support operational continuity in accordance with Section 3(e) of this Addendum. iii. Provide the Customer, or their Destination Provider appointed in the Switching Request, with access to standard open application programming interfaces (APIs), data protocols, and necessary technical developer documentation. Megaport has no obligation to perform custom engineering, manual coding, or bespoke configurations that go beyond the provision of this standard documentation. iv. Enable functional self-service options on the portal to execute the irreversible deletion of Data Assets in the event that the approved Switching Request involves data deletion.
b. Customer obligations. During the Switching process, additional to the obligations outlined in the Storage Schedule and in the Agreement, the Customer and the third-party and Destination Provider they engage are responsible for: i. Effectively managing, configuring, and executing the technical transfer of the Exportable Data from Megaport’s services to the third party or to their own on-premises ICT infrastructure. ii. Any performance degradation or interruptions of the services provided by Megaport caused directly or indirectly by the Customer or their agents (including, without limitation, running non-optimized or defective extraction scripts, or attempting data egress at volumes that strain network capacity). iii. Verifying the functional integrity, structural alignment, and successful ingest of the Exportable Data into the new destination environment. iv. All actions, omissions, policy breaches, or technical errors committed by the designated third-party or Destination Provider during the Switching process that cause operational or financial prejudice to Megaport. v. The Customer must not set an object lock for a period longer than the Storage Schedule term. Where the Customer has object locked content preventing Switching, charges for the Services may continue to apply after suspension or termination for the duration of the object lock.
5. Data Assets subject to Switch
a. Exportable Data. The Customer has the contractual right to switch, retrieve, or request the deletion of the following categories of data: i. Content: All raw Customer Data Assets stored within the block storage, object storage, or file storage services uploaded by the Customer to the Megaport platform. ii. Metadata: Structural configuration information, resource tags, and access mapping generated directly or indirectly by the Customer through their active utilization of the storage architecture.
b. Exempt Data. The Customer that Exempt Data acknowledge is excluded from the scope of any Switching Request, and Megaport has no obligation to disclose, port, or transfer it. Exempt Data includes, but is not limited to: i. Storage Architecture Information: Internal backend software configurations, hypervisor orchestration layers, hardware performance metrics, platform optimization data, and telemetry regarding the systemic functionality of Megaport’s storage infrastructure. ii. Third-Party Data: Any data, logs, registries, or metadata that do not legally belong to the Customer, including data isolated for or generated by other platform tenants. iii. Megaport Proprietary Intellectual Property: Megaport’s proprietary source code, software utility designs, user interface elements, system architectures, algorithms, and technical information protected under patent, copyright, trademark, or trade secret laws. iv. Platform Security Telemetry: Access control configurations, encryption key management structures, system log arrays, privacy infrastructure details, and any related technical metadata concerning the physical or logical safeguards Megaport deploys to secure its multi-tenant environment.
6. Cost of Switching
a. At-Cost Switching Charges. Until 12 January 2027, Megaport may charge reduced switching fees to the Customer that are linked directly to, and calculated strictly from, the actual direct costs incurred by Megaport to facilitate the technical execution of the Switching Request. From 12 January 2027 onward, standard infrastructure switching and data transfers shall be provided to the Customer free of charge.
b. Independence of Standard Billings. Any applicable at-cost switching charges applied under Section 6(a) are entirely separate from, and additional to, the normal recurring infrastructure consumption fees, network usage, and service billings applied to the active account under the Storage Schedule.
c. Preservation of Contractual Commitments. This Addendum does not override, invalidate, or waive any provisions, minimum volume spends, or minimum-duration subscriptions established within the underlying Storage Schedule. If the Customer initiates a Switch or requests data deletion prior to the expiration of a fixed-term contract commitment, the Customer shall remain fully liable for all applicable early termination fees, unfulfilled term penalties, and outstanding financial liabilities outlined in the Storage Schedule.
7. Post-switch retrieval, deletion and termination
a. Post-Switch Retrieval. Following the formal conclusion of the Transitional Period, and for a strict window of thirty (30) calendar days, Megaport will provide the Customer with read-only access to their storage account. This access is granted solely for the purpose of retrieving any missing information and validating that the data migration was successful. During this period, the Customer is strictly prohibited from uploading new data payloads or resuming normal storage operations.
b. Deletion. Immediately upon the conclusion of the 30-calendar-day Post-Switch Retrieval period, Megaport will automatically proceed with the permanent and irreversible deletion of all remaining Exportable Data, including all associated Customer Data Assets, metadata, and systemic snapshots or backups. Megaport carries no liability for data destroyed after this period has expired.
c. Legal Retention. Notwithstanding Section 7(b), Megaport shall retain any specific data, connection logs, or metadata that it is legally mandated to store under applicable laws, strictly for the duration required by those statutory retention periods.
d. Termination. In accordance with the cloud-switching requirements of the EU Data Act, the applicable Storage Schedule will automatically terminate solely and exclusively with respect to the specific services and Data Assets that were subject to the validated Switching Request upon the expiration of the Post-Switch Retrieval period.
For the avoidance of doubt, any other services, storage environments, or Data Assets governed by the Storage Schedule that were not included in the Switching Request shall remain entirely unaffected, valid, and in full force and effect. Following the expiration of the Post-Switch Retrieval period, all standard recurring storage utility billing for the switched environment shall cease. Any outstanding past-due balances, unresolved invoices, or early termination fee penalties for unfulfilled term commitments shall remain fully enforceable and governed by the terms of the Storage Schedule and the General Service Agreement.
8. Limitation of Liability
To the maximum extent permitted by applicable law, Megaport shall not be liable for any indirect, incidental, special, or consequential damages arising out of or related to a Switching Request, data deletion, or any operational incidents occurring during the Switching process caused by the Customer, their agents, or the Customer’s designated third-party or Destination Provider.
9. Interpretation
This Addendum shall be read in conjunction with the Global Services Agreement and the applicable Storage Schedule. In the event of any direct conflict, ambiguity, or inconsistency between the terms of this Addendum and the underlying Agreement or Storage Schedule, the provisions of this Addendum shall strictly control and prevail, but solely with respect to the execution of Customer cloud-switching, data retrieval, and data deletion rights under Chapter VI of the EU Data Act. Where this Addendum is silent regarding specific contractual or administrative matters, the terms of the Global Services Agreement and the Storage Schedule shall apply subsidiarily.