hold-notification-letter-to-wbc.docx

1007-00007 · Vantage Mobility Systems Corp · Correspondence

hold-notification-letter-to-wbc.docx DOCUMENT Finance & Banking

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CALDERWOOD & HARKNESS LLP Attorneys at Law 1 Liberty Plaza, 38th Floor New York, NY 10006 Telephone: (212) 530-4000 Facsimile: (212) 530-4001 www.calderwoodharkness.com

January 25, 2023

VIA ELECTRONIC MAIL AND FIRST-CLASS MAIL

Catherine Ng, Esq. Partner, Privacy & Cybersecurity Whitfield, Barrow & Crane LLP 555 California Street, Suite 3200 San Francisco, CA 94104

Re: Data Processing Agreement Between Vantage Mobility Systems Corp. and Meridian Telematics Solutions, Inc. Matter Number: 1007-00007

Dear Ms. Ng:

Calderwood & Harkness LLP, on behalf of its client Vantage Mobility Systems Corp. ("VMS"), writes to formally notify Whitfield, Barrow & Crane LLP and its client, Meridian Telematics Solutions, Inc. ("Meridian"), that VMS has instructed Calderwood & Harkness to pause all ongoing negotiations relating to the Data Processing Agreement (the "DPA") between VMS and Meridian. This notification is effective as of the date of this letter, January 25, 2023. We write to provide your firm and Meridian with prompt and transparent notice of VMS's determination, as well as to memorialize the current status of the DPA negotiations and the parties' respective positions for the record.

As you are aware, the DPA is currently in draft form at version 3.1, as circulated by Whitfield, Barrow & Crane to Calderwood & Harkness on December 16, 2022. As of the date of this letter, the parties have not reached final agreement on the DPA, and six (6) material open issues remain under active negotiation. Specifically, the outstanding issues are as follows: (1) the data retention period applicable to personal data processed under the DPA; (2) VMS's sub-processor approval rights, including the scope and mechanism of prior written consent; (3) the breach notification timeline and the corresponding obligations of the parties following a personal data breach; (4) the aggregate liability cap and its allocation between the parties; (5) international data transfer restrictions, including the adequacy of transfer mechanisms for cross-border data flows; and (6) sub-processor audit rights, including the frequency, scope, and cost allocation of audits conducted by or on behalf of VMS. We note that the current pause follows the successful resolution of seven (7) of the original eleven (11) material open issues identified during the course of these negotiations, including substantive progress achieved during the negotiation session held on November 15, 2022, as well as through subsequent written exchanges between our respective firms. We commend the collaborative efforts of both sides in narrowing the outstanding points of disagreement to the six items enumerated above.

VMS has advised Calderwood & Harkness that the underlying commercial partnership between VMS and Meridian is presently being rescoped by the parties at the business level. The rescoping involves material changes to the categories of data to be processed and the processing parameters originally contemplated by the non-binding Letter of Intent executed between VMS and Meridian on August 5, 2022. We understand that VMS and Meridian are currently in the process of finalizing a revised commercial term sheet that will reflect the rescoped partnership parameters, including revised data flows, expanded or narrowed processing purposes, and potentially revised geographic scope. Because the existing DPA draft (v3.1) was structured around the original partnership scope and the data processing activities described in the August 5, 2022 Letter of Intent, VMS has determined that the DPA will need to be reassessed — and potentially restructured in material respects — in light of the revised commercial terms once those terms have been finalized by the parties. Accordingly, VMS has concluded that it is both prudent and in the interests of efficiency for both parties to pause DPA negotiations pending the outcome of the ongoing commercial rescoping discussions, rather than continue to negotiate terms that may no longer align with the revised scope of the parties' commercial relationship.

For the avoidance of doubt, this pause does not constitute, and shall not be construed as, an abandonment, withdrawal, or rejection of any draft positions, proposed terms, or negotiated resolutions reflected in DPA v3.1 or in any prior drafts, redlines, written correspondence, or oral communications exchanged between the parties or their respective counsel during the course of these negotiations. All existing draft positions and open issues are hereby preserved in their current state as of the date of this letter. Neither VMS's positions nor Meridian's positions on the six (6) remaining open issues enumerated above shall be deemed waived, abandoned, modified, or otherwise prejudiced by reason of this pause or the passage of time during the pendency of the pause. The parties' respective rights and negotiating positions, as reflected in the complete negotiation record through and including DPA v3.1, remain fully intact and may be relied upon by either party upon the resumption of negotiations.

Calderwood & Harkness will re-engage with Whitfield, Barrow & Crane on DPA negotiations upon further instruction from VMS. VMS anticipates providing such instruction following the finalization of the revised commercial term sheet between VMS and Meridian, at which time the parties and their respective counsel will be in a position to evaluate the impact of the revised commercial scope on the existing DPA draft and the remaining open issues. Upon receipt of such instruction, Calderwood & Harkness will promptly notify Whitfield, Barrow & Crane that VMS is prepared to resume negotiations and will coordinate scheduling with your office at that time so as to facilitate an orderly and efficient resumption of the negotiation process.

In the interim, any questions, communications, or correspondence regarding this matter or the status of the DPA negotiations may be directed to the undersigned:

Rachel Bernstein, Esq. Partner, Privacy & Data Security Calderwood & Harkness LLP 1 Liberty Plaza, 38th Floor New York, NY 10006 Telephone: (212) 530-4127

Email: r.bernstein@calderwoodharkness.com

We respectfully request that all correspondence reference Matter Number 1007-00007 to ensure prompt and accurate handling.

We appreciate your and your client's cooperation throughout the course of these negotiations, and we look forward to resuming discussions at the appropriate time once the commercial rescoping process has concluded. Please do not hesitate to contact me should you have any questions regarding the foregoing.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Rachel Bernstein Partner, Privacy & Data Security

cc: Thomas Langford, General Counsel, Vantage Mobility Systems Corp. Diana Kowalski, Chief Privacy Officer, Vantage Mobility Systems Corp. Kevin Ostrowski, Partner, Calderwood & Harkness LLP Alan Burke, Senior Associate, Calderwood & Harkness LLP

Enclosures: None

CALDERWOOD & HARKNESS LLP Attorneys at Law 1 Liberty Plaza, 38th Floor New York, NY 10006 Telephone: (212) 530-4000 Facsimile: (212) 530-4001 www.calderwoodharkness.com
January 25, 2023
VIA ELECTRONIC MAIL AND FIRST-CLASS MAIL
Catherine Ng, Esq. Partner, Privacy & Cybersecurity Whitfield, Barrow & Crane LLP 555 California Street, Suite 3200 San Francisco, CA 94104
Re: Data Processing Agreement Between Vantage Mobility Systems Corp. and Meridian Telematics Solutions, Inc. Matter Number: 1007-00007
Dear Ms. Ng:
Calderwood & Harkness LLP, on behalf of its client Vantage Mobility Systems Corp. ("VMS"), writes to formally notify Whitfield, Barrow & Crane LLP and its client, Meridian Telematics Solutions, Inc. ("Meridian"), that VMS has instructed Calderwood & Harkness to pause all ongoing negotiations relating to the Data Processing Agreement (the "DPA") between VMS and Meridian. This notification is effective as of the date of this letter, January 25, 2023. We write to provide your firm and Meridian with prompt and transparent notice of VMS's determination, as well as to memorialize the current status of the DPA negotiations and the parties' respective positions for the record.
As you are aware, the DPA is currently in draft form at version 3.1, as circulated by Whitfield, Barrow & Crane to Calderwood & Harkness on December 16, 2022. As of the date of this letter, the parties have not reached final agreement on the DPA, and six (6) material open issues remain under active negotiation. Specifically, the outstanding issues are as follows: (1) the data retention period applicable to personal data processed under the DPA; (2) VMS's sub-processor approval rights, including the scope and mechanism of prior written consent; (3) the breach notification timeline and the corresponding obligations of the parties following a personal data breach; (4) the aggregate liability cap and its allocation between the parties; (5) international data transfer restrictions, including the adequacy of transfer mechanisms for cross-border data flows; and (6) sub-processor audit rights, including the frequency, scope, and cost allocation of audits conducted by or on behalf of VMS. We note that the current pause follows the successful resolution of seven (7) of the original eleven (11) material open issues identified during the course of these negotiations, including substantive progress achieved during the negotiation session held on November 15, 2022, as well as through subsequent written exchanges between our respective firms. We commend the collaborative efforts of both sides in narrowing the outstanding points of disagreement to the six items enumerated above.
VMS has advised Calderwood & Harkness that the underlying commercial partnership between VMS and Meridian is presently being rescoped by the parties at the business level. The rescoping involves material changes to the categories of data to be processed and the processing parameters originally contemplated by the non-binding Letter of Intent executed between VMS and Meridian on August 5, 2022. We understand that VMS and Meridian are currently in the process of finalizing a revised commercial term sheet that will reflect the rescoped partnership parameters, including revised data flows, expanded or narrowed processing purposes, and potentially revised geographic scope. Because the existing DPA draft (v3.1) was structured around the original partnership scope and the data processing activities described in the August 5, 2022 Letter of Intent, VMS has determined that the DPA will need to be reassessed — and potentially restructured in material respects — in light of the revised commercial terms once those terms have been finalized by the parties. Accordingly, VMS has concluded that it is both prudent and in the interests of efficiency for both parties to pause DPA negotiations pending the outcome of the ongoing commercial rescoping discussions, rather than continue to negotiate terms that may no longer align with the revised scope of the parties' commercial relationship.
For the avoidance of doubt, this pause does not constitute, and shall not be construed as, an abandonment, withdrawal, or rejection of any draft positions, proposed terms, or negotiated resolutions reflected in DPA v3.1 or in any prior drafts, redlines, written correspondence, or oral communications exchanged between the parties or their respective counsel during the course of these negotiations. All existing draft positions and open issues are hereby preserved in their current state as of the date of this letter. Neither VMS's positions nor Meridian's positions on the six (6) remaining open issues enumerated above shall be deemed waived, abandoned, modified, or otherwise prejudiced by reason of this pause or the passage of time during the pendency of the pause. The parties' respective rights and negotiating positions, as reflected in the complete negotiation record through and including DPA v3.1, remain fully intact and may be relied upon by either party upon the resumption of negotiations.
Calderwood & Harkness will re-engage with Whitfield, Barrow & Crane on DPA negotiations upon further instruction from VMS. VMS anticipates providing such instruction following the finalization of the revised commercial term sheet between VMS and Meridian, at which time the parties and their respective counsel will be in a position to evaluate the impact of the revised commercial scope on the existing DPA draft and the remaining open issues. Upon receipt of such instruction, Calderwood & Harkness will promptly notify Whitfield, Barrow & Crane that VMS is prepared to resume negotiations and will coordinate scheduling with your office at that time so as to facilitate an orderly and efficient resumption of the negotiation process.
In the interim, any questions, communications, or correspondence regarding this matter or the status of the DPA negotiations may be directed to the undersigned:
Rachel Bernstein, Esq. Partner, Privacy & Data Security Calderwood & Harkness LLP 1 Liberty Plaza, 38th Floor New York, NY 10006 Telephone: (212) 530-4127
Email: r.bernstein@calderwoodharkness.com
We respectfully request that all correspondence reference Matter Number 1007-00007 to ensure prompt and accurate handling.
We appreciate your and your client's cooperation throughout the course of these negotiations, and we look forward to resuming discussions at the appropriate time once the commercial rescoping process has concluded. Please do not hesitate to contact me should you have any questions regarding the foregoing.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Rachel Bernstein Partner, Privacy & Data Security
cc: Thomas Langford, General Counsel, Vantage Mobility Systems Corp. Diana Kowalski, Chief Privacy Officer, Vantage Mobility Systems Corp. Kevin Ostrowski, Partner, Calderwood & Harkness LLP Alan Burke, Senior Associate, Calderwood & Harkness LLP
Enclosures: None

VIA ELECTRONIC MAIL AND FIRST-CLASS MAIL

CALDERWOOD & HARKNESS LLP

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