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EU Data Act Addendum

This EU Data Act Addendum (“Addendum”) governs all switching and deletion requests made by a Customer, in connection with Klaviyo’s services, pursuant to the Data Act (Regulation (EU) 2023/2854). For the purpose of this Addendum, a Customer refers to an “EU Customer” which shall mean a Customer registered within a member state of the European Union or European Economic Area (EU/EEA).
This Addendum supplements and forms part of the applicable Klaviyo Terms of Service, available at https://www.klaviyo.com/legal/terms-of-service (“TOS”), or, if Customer has executed separate terms governing its use of Klaviyo’s services (“MSA”) in which case those signed terms apply (the TOS or MSA, as applicable, “Agreement”). In the event of any conflict between the terms of this Addendum and those of the Agreement, this Addendum shall govern solely with respect to the subject matter described herein. Capitalized terms used but not otherwise defined in this Addendum shall have the meanings given in the Agreement.

1. Switching or Deletion Rights

1.1 Overview. Customer may terminate its use of the Services by giving Klaviyo two (2) months’ written notice (“Data Act Notice Period”) and exercise one or more of the following rights:

(a) switch, and migrate its Customer Data, to an alternative third-party provider or to its own on-premise infrastructure (the “Switching Right”); or 

(b) request deletion of its Customer Data (the “Deletion Right”).

1.2 Switching Process. If Customer exercises its Switching Right:

  1. the switching process will begin after the Data Act Notice Period and end no later than thirty (30) days after the start of the switching process (“Transitional Period”) unless extended as described below;
  1. the Customer Data available for export excludes any data or assets protected by Klaviyo’s or a third-party’s intellectual property rights, trade secrets, or data that could compromise the security and integrity of the Services; and
  1. if completing the switching process is not technically feasible within the Transitional Period, either party can extend the Transitional Period as follows:
    1. Klaviyo will, within fourteen (14) business days of receiving the Customer’s notice to exercise its Switching Right, explain if completing the switch is technically unfeasible, and specify an alternative Transitional Period of no more than seven (7) months.
    2. The Customer may extend the Transitional Period by providing written notice to Klaviyo explaining the technical unfeasibility and specifying an additional period reasonably necessary to resolve it. However, the Transitional Period shall not extend beyond the end of the Subscription Term set forth in the applicable Service Order. If requested by Klaviyo, the Customer shall execute a Service Order covering the extended Transitional Period.

1.3 Deletion Requests. If the Customer exercises its Deletion Right, Klaviyo will delete the Customer Data within ninety (90) days following the end of the Data Act Notice Period, unless otherwise required by applicable laws. 

2. Obligations of the Parties

2.1 Klaviyo’s obligations. When a Customer exercises its Switching Right, Klaviyo will: 

(i) maintain continuity of the Services throughout the switching process; 

(ii) ensure that security is maintained in accordance with the technical and organizational measures set forth in the Agreement;

(iii) provide self-service export tools enabling access to Customer Data in a structured, commonly-used and machine-readable format; 

(iii) provide reasonable assistance to the Customer during the switching process; 

(iv) provide information concerning any known risks to the continuity of the Services during the switching process on the part of Klaviyo; and 

(v) to the extent that the Customer is unable to export Customer Data using the self-service tools, provide reasonable assistance to enable the Customer’s exit strategy. Klaviyo may charge Customer, and Customer shall reimburse Klaviyo, for any such assistance beyond providing self-service features included as part of the Services.

2.2 Customer’s obligations. The Customer shall take all reasonable steps to ensure effective switching and shall be responsible for the import and implementation of Customer Data in their own systems or in the systems of the alternative third-party provider.

3. Termination and Data Retrieval. The Agreement shall terminate upon the earlier of:

(a) Klaviyo receiving written notice from the Customer confirming successful completion of the switching process prior to the end of the Transitional Period;

(b) the expiry of the Transitional Period; or

(c) if the Customer exercises its Deletion Right, the expiry of the Data Act Notice Period.

Following termination, Klaviyo will retain a copy of the Customer Data for thirty (30) days (the “Retrieval Period”), during which the Customer may access and export its Customer Data. Upon expiry of the Retrieval Period, Klaviyo will delete the Customer Data in accordance with the Agreement.

4. Termination Fees. 

  1. Customer acknowledges that the exercise of the Switching Right or the Deletion Right will not relieve Customer of its obligation to pay any Fees due to Klaviyo for the period prior to the termination of the Agreement, and for any outstanding Fees covering the remaining unused Subscription Term of the relevant Service Order(s). Customer further acknowledges and agrees that it has no right of refund for any Fees paid prior to termination of the Agreement.
  1. Customer acknowledges and agrees that:

(i) Klaviyo has relied on the Customer’s fixed duration contract commitments to be able to offer the Services to the Customer for the agreed upon fees and to make investments in developing and improving the Service;

(ii) the aforementioned termination fees represent a proportionate penalty for the early termination of a fixed duration contract, which proportionately and effectively balances Klaviyo’s ability to rely on the Customer’s fixed duration contract commitment so that it can invest in developing and improving the Service and the Customer’s ability to switch data processing providers without commercial or contractual obstacles; and

(iii) Customer initially had the option to enter into monthly agreements with Klaviyo, but expressly chose to enter into a fixed-term annual or multi-annual agreement with Klaviyo.