EU Data Act Addendum

This EU Data Act Addendum (“Addendum”) supplements and is expressly incorporated into the Main Services Agreement between Benchling, Inc. and its EU Customers (defined below) or any other agreement between Benchling and EU Customers covering the provision of Benchling’s services (“Agreement”).  Capitalized terms not defined here have the meanings in the Main Services Agreement available here.

1. Scope

1.1. This Addendum applies to:

(a) Benchling services to the extent they qualify as “data processing services” under the Regulation (EU) 2023/2854 of the European Parliament and of the Council, dated 13 December 2023, concerning harmonized rules on fair access to and use of data (the “EU Data Act”); and

(b) requests submitted by an EU Customers (defined below) for the Switching (defined below) of services, in accordance with the EU Data Act.. 

1.2. 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)

1.3. Benchling shall not impose technical, contractual or commercial obstacles that prevent or hinder Switching or the exercise of rights under the EU Data Act.

1.4. If there is any conflict between this Addendum and the Agreement, this Addendum shall prevail with respect to its subject matter. In all cases, mandatory statutory rights shall take precedence.

1.5. Benchling and Customer acknowledge that this Addendum is intended to implement the relevant provisions of the EU Data Act. In the event of conflict between this Addendum and the EU Data Act, the latter shall prevail to the extent mandatory.

2. Key Definitions

2.1. “Switching” means the process as defined under the EU Data Act, where Customers transfer Exportable Data from the Benchling Services to another provider or Customer environment.

2.2. “Switching Request” means a written request to initiate Switching and/or deletion of all Exportable Data that is submitted to support@benchling.com by a person that is authorised to bind the Customer.

2.3. “Exportable Data” means (i) Customer Data stored and/or processed in the Benchling Services; and (ii) metadata and usage parameters strictly necessary to implement Customer Data in the target environment for functionally equivalent services. 

2.4. “Exempted Data” means Benchling Intellectual Property and any information, materials, or data: (i) the disclosure of which would reveal Benchling’s trade secrets or those of a third party; (ii) that relate to Benchling’s internal security controls, encryption or authentication keys, or other information whose disclosure would create a material security or operational risk; or (iii) that consist of inferred, derived, or aggregated data generated by Benchling’s proprietary algorithms or analytics not strictly necessary for the Customer or a third-party provider to ensure a functionally equivalent service. 

2.5. “Transitional Period” means the period during which the Services remain available to facilitate Switching.

2.6. “Applicable Date” means the date the EU Data Act obligations apply to the Agreement (including statutory fee-transition dates).

3. Initiating Switching

3.1. Customer may submit a Switching Request at any time by giving two (2) months’ prior written notice (the “Notice Period”).

3.2. A Switching Request must include (i) information reasonably necessary to verify that your request qualifies for Switching or deletion under the EU Data Act and (ii) information reasonably necessary to fulfill the Switching Request, including, without limitation, Benchling’s services subject to the Switching Request and Customer’s desired time period for Switching. 

3.3. Customer may extend the Notice Period once by written notice if needed.

3.4. Within ten (10) Business Days Benchling will acknowledge the Switching Request, confirm eligibility, identify any Exempted Data (with justification), and provide Switching information, including, but not limited to, formats, interfaces, rate-limit windows, and security controls.

3.5. At Customer’s written direction, Benchling will coordinate Switching support with Customer’s designated third party under appropriate confidentiality undertakings.

4. Timing, Completion and Retrieval

4.1. Benchling and Customer will use commercially reasonable efforts to complete the Switching within thirty (30) days following the end of the Notice Period, unless technically infeasible despite reasonable efforts, in which case Benchling will notify Customer in writing within fourteen (14) business days of the Switching Request, with a reasonable justification and propose an alternative transition period no longer than seven (7) months.

4.2. After Switching is completed (or after the Notice Period ends if Customer elects deletion without switching), Customer may export eligible Exportable Data for thirty (30) days (the “Retrieval Period”).

4.3. After the Retrieval Period ends, Benchling will delete Exportable Data subject to legal and backup retention obligations. 

4.4. The Customer is solely responsible for the import and implementation of Exportable Data into the provider’s or Customer’s environment.

5. Formats

5.1. Exports will be provided in structured, commonly used, machine-readable formats and, where available, using open interoperability standards or open specifications with data dictionaries and/or schemas sufficient to re-instantiate data in the target environment.

5.2. Where API migration is more reliable and/or efficient, Benchling will expose and document relevant endpoints, pagination, and throttling policies reasonably necessary for migration. 

6. Assistance and Continuity During the Transitional Period

6.1. Benchling will maintain the Services (including uptime/Support) to enable business continuity during Switching.

6.2. Benchling will provide reasonable technical assistance to Customer (e.g., export windows, clarifications on data structures). 

7. Charges and the Statutory Transition

7.1. Benchling will not impose Switching charges beyond what the EU Data Act permits. 

7.2. During the statutory transition period, any permitted charge shall be cost-based, transparent and decreasing over time in line with the EU Data Act.

7.3. After the end of the statutory transition period, no Switching charges shall apply.

7.4. Benchling will provide on request a Switching Cost Schedule reflecting this Section and will update it as statutory thresholds phase in.

8. Sales Order Termination and Termination Fees

8.1. All relevant Sales Orders will be considered terminated solely for the affected Services as of the “Effective Termination Date”, which is defined as either (i) the date on which Switching is completed, or (ii) the date on which the Notice Period expires if Customer elected deletion instead of Switching.

8.2. The parties agree that (i) termination of any Sales Orders does not relieve Customer of its obligation to pay all fees accrued or payable up to the Effective Termination Date, and (ii) Customer will pay an early termination fee equal to all fees that would have been owed for the remainder of the term of the relevant Sales Order(s). Benchling will continue to provide Benchling Services in accordance with the Agreement and relevant Sales Orders until the Effective Termination Date. 

8.3. Customer acknowledges and agrees that (i) Benchling has relied on Customer’s fixed duration commitments under its Sales Orders to be able to offer the Benchling Services to Customer for the agreed upon fees and (ii) the early termination fee is a proportionate penalty for the early termination of a fixed duration contract, which proportionately and effectively balances Benchling’s ability to rely on the Customer’s fixed duration contract commitment so that it can invest in developing and improving the Benchling Services and the Customer’s ability to switch providers without commercial or contractual obstacles.

9. Interoperability Commitments

9.1. Benchling will maintain documentation sufficient for a competent professional to reasonably preserve Customer’s data state in the target data processing service.

9.2. Benchling will evaluate reasonable Customer requests to improve interoperability (e.g., mapping tables, one-off export utilities) where feasible without disclosing Benchling Intellectual Property or compromising security.

10. Carve-Outs: Protection of Trade Secrets and Security, Test Environments & Custom Builds

10.1. Where disclosure would reveal trade secrets or cause material security risk, Benchling may withhold Exempted Data, minimizing scope and providing functional alternatives with written justification showing the exclusion does not unduly impede Switching.

10.2. If disclosure would violate third-party rights or law, Benchling will notify Customer, seek consent or lawful alternatives, and provide the maximum permissible subset without undue delay.

10.3. Benchling shall ensure that any such Exclusions are narrowly limited to what is strictly necessary, shall provide functional alternatives or supporting documentation enabling continuity of service, and shall not, in aggregate, unduly impede, delay, or degrade the Switching process or the usability of the exported data.

10.4. In accordance with the EU Data Act, Benchling will not accommodate Switching or associated deletion requests for services that have been offered temporarily, such as for beta testing or evaluation purposes. 

10.5. In accordance with the EU Data Act, for services where the majority of main features have been custom-built to accommodate Customer’s specific needs or where all components have been developed for the purposes of Customer, and where such services are not offered by Benchling at broad commercial scale, Benchling’s Switching duties will be limited to exclude the obligations laid down in Article 23, point (d), Article 29, and Article 30(1) and (3) of the EU Data Act.

11. Third-Country Access

Benchling shall assess and, where lawful, challenge or resist third-country access requests inconsistent with Union or Member State law, and shall notify the Customer without undue delay unless prohibited by law.