Data Processing Addendum

a.      “Authorized Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
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b.  “Applicable Data Protection Laws” means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to the Processing of Personal Data under the Agreement, including, without limitation, European Data Protection Laws, UK GDPR and the United States including the CCPA.
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c.  “CCPA” means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time, including the California Privacy Rights Act of 2020, and any regulations promulgated thereunder.
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d.  “EEA” means the European Economic Area.
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e.  “European Data Protection Laws” means the GDPR and other data protection laws and regulations of the EEA and European Union, and the Member States of each of the foregoing, to the extent applicable to the Processing of Personal Data under the Agreement.
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f.   “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
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g.  “Information Security Incident” means a confirmed breach of Company’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Company’s possession, custody or control. Information Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.
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h.  “Personal Data” means Customer Data that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Data Protection Laws, or information of a similar character regulated thereby,” provided that such data is electronic data and information submitted by or for Customer to the Services.
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i.   “Public Authority” means a government agency or law enforcement authority, including judicial authorities.
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j.       “Processing” or “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
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k.  “Security Measures” are Company’s security measures implemented and maintained as administrative, technical and physical safeguards designed to protect the security and integrity of Personal Data and prevent Information Security Incidents, further described in Schedule 2 Annex III hereto and any other measures required by Applicable Data Protection Laws.
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l.       “Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, currently located here: https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj.
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m. “Subprocessors” or “Sub-processor” means any third-party processor that Company engages to Process Personal Data in relation to the Services.
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n.      “UK GDPR” means the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 ("UK GDPR") and the Data Protection Act 2019.
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a.  Company Security Measures. Company may update the Security Measures from time to time, so long as the updated measures do not materially decrease the overall protection of Personal Data.

b.  Information Security Incidents. Company will notify Customer without undue delay of any Information Security Incident of which Company becomes aware. Such notifications will describe available details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Company recommends the Customer take to address the Information Security Incident. Company’s notification of or response to an Information Security Incident will not be construed as Company’s acknowledgement of any fault or liability with respect to the Information Security Incident.

c.      Audits of Compliance & DPIAs.
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i. Customer may audit Company’s compliance with its obligations under this DPA no more than once per calendar year, and on such other occasions as may be required by European Data Protection Laws, including if mandated by Customer’s supervisory authority, at Customer’s sole cost, on no less than 15 days advanced written notice. Such audit must be conducted at Company’s principal place of business, during regular business hours, and may not unreasonably interfere with Company’s business activities.
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ii. Company will contribute to each audit by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit. If a third party is to conduct the audit, Company may object to the auditor if the auditor is, in Company’s reasonable opinion, not independent, a competitor of Company, or otherwise manifestly unsuitable. Such objection by Company will require the Customer to appoint another auditor or conduct the audit itself.

iii. If the controls or measures to be assessed in the requested audit are addressed in a Company SOC 2 Type 2, ISO, NIST or similar audit report, performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Company has confirmed there have been no known material changes in the controls audited since the date of such report, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures.

iv. Customer will promptly notify Company of any non-compliance discovered during the course of an audit and provide Company any audit reports generated in connection with any audit under this Section 4(c), unless prohibited by European Data Protection Laws or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA.

v. Customer shall reimburse Company for any time expended by Company and any third parties in connection with any audits or inspections under this Section 4(c) at Company’s then-current professional services rates, which shall be made available to Customer upon request. For clarity, Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
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d.      Data Protection Impact Assessments (DPIAs). Upon Customer’s written request, Company will provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under Applicable Data Protection Laws to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Company.
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a.      Customer Obligations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges and agrees that its use of the Services will not violate the rights of any data subject, including those that have opted-out from sales or other disclosures of personal data, to the extent applicable under Applicable Data Protection Laws. Without limitation of Customer’s obligations under the Agreement, Customer: (a) agrees that Customer is solely responsible for its use of the Services, including (1) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data, (2) securing the account authentication credentials, systems and devices Customer uses to access the Services, (3) securing Customer’s systems and devices that Company uses to provide the Services, and (4) backing up Personal Data; and (b) has given all notices to, and has obtained all consents from, including where the Customer is a processor by ensuring that the ultimate controller does so, individuals to whom Personal Data pertains and all other parties as required by applicable laws or regulations for Company to Process Personal Data as contemplated by the Agreement.

b.      Prohibited Data. Customer represents and warrants to Company that Customer Data does not and will not, without Company’s prior written consent, contain any social security numbers or other government-issued identification numbers, protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; health insurance information; biometric information; passwords for online accounts; credentials to any financial accounts; tax return data; credit reports or consumer reports; any payment card information subject to the Payment Card Industry Data Security Standard; information subject to the Gramm-Leach-Bliley Act, Fair Credit Reporting Act or the regulations promulgated under either such law; information subject to restrictions under Applicable Data Protection Laws governing Personal Data of children, including, without limitation, all information about children under 16 years of age; or any information that falls within any special categories of data (as defined in GDPR).|
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a.      Compliance with Laws. Each party will comply with all Applicable Data Protection Laws. In particular, Customer will comply with its obligations as controller (or on behalf of controller) and Company will comply with its obligations as processor.

b.      Personal Data Disclosures & Government Requests. Company will not disclose Personal Data to any third party, including any Public Authority, except: (i) as otherwise permitted under the Agreement including this DPA; or (ii) as necessary to comply with Applicable Data Protection Laws including with respect to any valid and/or binding Public Authority court order (e.g., a law enforcement subpoena). If Company receives a binding order from a Public Authority requesting access to or disclosure of Personal Data, Company will notify Customer of the request unless otherwise legally prohibited.

c.      Data Subject Request Assistance. Company will (taking into account the nature of the Processing of Personal Data) provide Customer with assistance reasonably necessary for Customer to perform its obligations under Applicable Data Protection Laws to fulfill requests by data subjects to exercise their rights under Applicable Data Protection Laws (“Data Subject Requests”) with respect to Personal Data in Company’s possession or control. Where permitted under Applicable Data Protection Laws, Customer will compensate Company for any such assistance at Company’s then-current professional services rates, which will be made available to Customer upon request.

d.  Customer’s Responsibility for Requests. Company will not respond to a Data Subject Request itself, except where Customer authorizes Company to redirect the Data Subject Request as necessary to allow Customer to respond directly. If Company receives a Data Subject Request, Company will advise the data subject to submit the request to Customer and Customer will be responsible for responding to the request.

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a.      GDPR. Company will Process Personal Data in accordance with GDPR directly applicable to Company’s provision of its Services and as provided for in Schedules 1 and 2 hereto.

b.      UK GDPR. Company will Process Personal Data in accordance with UK GDPR directly applicable to Company’s provision of its Services and as provided for in Schedule 3 hereto.

c.      Changes in Applicable Data Protection Laws. Company shall use reasonable efforts to make available to Customer a change in the Services, or recommend a commercially reasonable change to Customer’s configuration or use of the Services, to facilitate compliance with changes in Applicable Data Protection Laws without unreasonably burdening Customer. If Company is unable to make available necessary changes promptly, Customer may terminate the applicable Order Form(s) and suspend the transfer of Personal Data in respect only to those Services which cannot be provided by Company in accordance with the changes in Applicable Data Laws by providing written notice in accordance with the “Notices” section of the Agreement. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination for such terminated Services.

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a.      Consent to Subprocessor Engagement. Customer authorizes the following Subprocessors to Process Personal Data: (i) Company’s Affiliates;  and (ii) the Subprocessors set forth in Schedule 2 Annex III hereto as updated by Company from time to time, or such other website address as Company may provide to Customer from time to time) (“Subprocessor Site”).

b.      Requirements for Subprocessor Engagement. When engaging any Subprocessor, Company will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the services provided by such Subprocessor.  Company shall be liable for all obligations under the Agreement subcontracted to, the Subprocessor or its actions and omissions related thereto.

c.      Subprocessor Changes. When Company engages any new Subprocessor after the Effective Date of the Agreement, Company will update the Subprocessor Site (including the name and location of the relevant Subprocessor and the activities it will perform). This Section 7(c) will not apply with respect to GDPR but instead will be replaced by the requirements of the Standard Contractual Clauses set forth in Section 4(g) and 4(h) of Schedule 1 hereto.

d.      Opportunity to Object to Subprocessor Changes. If Customer objects to such engagement in a written notice to Company on reasonable grounds relating to the protection of Personal Data, Customer and Company will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Company.
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a.      "EU C-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Two (Controller-to-Processor).

b.      "EU P-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II III and IV (as applicable) to the extent they reference Module Three (Processor-to-Processor).
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a.      The EU C-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Controller and a data exporter of Personal Data and Company is a Processor and data importer in respect of that Personal Data, then the parties shall comply with the EU C-to-P Transfer Clauses, subject to the additional terms in Schedule 1; and/or

b.      The EU P-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Processor acting on behalf of a Controller and a data exporter of Personal Data and Company is a Processor and data importer in respect of that Personal Data, the parties shall comply with the terms of the EU P-to-P Transfer Clauses, subject to the additional terms in Schedule 1.

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a.      Reference to the Standard Contractual Clauses. The relevant provisions contained in the Standard Contractual Clauses are incorporated by reference and are an integral part of this DPA. The information required for the purposes of the Annexes to the Standard Contractual Clauses are set out in Schedule 2.

b.      Docking Clause. The option under clause 7 shall not apply.

c.      Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Company for the Processing of Personal Data. Any additional or alternate instructions must be consistent with the terms of this DPA and the Agreement. For the purposes of clause 8.1(a), the instructions by Customer to Process Personal Data include onward transfers to a third party located outside the EEA for the purpose of the performance of the Services.

d.      Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in clauses 8.5 and 16(d) of the Standard Contractual Clauses shall be provided by Company to Customer only upon Customer's written request.

e.      Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the technical and organisational measures set forth herein meet Customer’s requirements and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of its Personal Data as well as the risks to individuals) the security measures and policies implemented and maintained by Company provide a level of security appropriate to the risk with respect to its Personal Data. For the purposes of clause 8.6(c), personal data breaches (i.e., Information Security Incidents) will be handled in accordance with Section 4(b) of this DPA.

f.       Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with Section 4(c) of this DPA.

g.      General Authorization for Use of Subprocessors. Option 2 under clause 9 shall apply. The data importer has the data exporter’s general authorization for the engagement of Subprocessor(s) from those set forth in Annex III (see Schedule 2 below). The data importer shall inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors. The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

Where Company enters into the EU P-to-P Transfer Clauses with a Subprocessor in connection with the provision of the Services, Customer hereby grants Company and Company’s Affiliates authority to provide a general authorization on Controller's behalf for the engagement of subprocessors by Subprocessors engaged in the provision of the Services, as well as decision making and approval authority for the addition or replacement of any such subprocessors.

h.      Notification of New Subprocessors and Objection Right. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Company may engage new Subprocessors as described in Section 4(g) above. Company shall inform Customer of any changes to Subprocessors following the procedure provided for in Section 4(g) above. Customer may object to new Subprocessors as described in Section 7(d) of the DPA.

i.       Redress. The option under clause 11 shall not apply. Company shall inform Customer if it receives a Data Subject Request with respect to Personal Data and shall without undue delay communicate the complaint or dispute to Customer. Company shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer).

j.       Liability. Company's liability under clause 12(b) shall be limited to any damage caused by its Processing where Company has not complied with its obligations under the GDPR specifically directed to Processors, or where it has acted outside of or contrary to lawful instructions of Customer, as specified in Article 82 GDPR.

k.      Supervision. Clause 13 shall apply as follows:
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i. Where Customer is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by Customer with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.

ii. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority.

iii. Where Customer is established in the United Kingdom or falls within the territorial scope of application of UK GDPR, the Information Commissioner's Office shall act as competent supervisory authority.
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l.       Notification of Government Access Requests. For the purposes of clause 15(1)(a), Company shall notify Customer (only) and not the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying the Data Subject as necessary.

m.    Governing Law. The governing law for the purposes of clause 17 shall be the law that is designated in the section of the Agreement. If the Agreement is not governed by an EU Member State law, the Standard Contractual Clauses will be governed by either: (i) the laws of Ireland; or (ii) where the Agreement is governed by the laws of the United Kingdom, the laws of the United Kingdom.

n.      Choice of Forum and Jurisdiction. The courts under clause 18 shall be those designated in the Agreement. If the Agreement does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this Agreement, the parties agree that the courts of either: (i) Ireland; or (ii) where the Agreement designates the United Kingdom as having exclusive jurisdiction, the United Kingdom, shall have exclusive jurisdiction to resolve any dispute arising from the Standard Contractual Clauses.

o.      Data Exports from the United Kingdom under the Standard Contractual Clauses. In case of any transfers of Personal Data from the United Kingdom subject exclusively to the UK GDRP, except where such Processing is subject to Schedule 3 hereto: (i) general and specific references in the Standard Contractual Clauses to GDPR or EU or Member State Law shall have the same meaning as the equivalent reference in the Applicable Data Protection Laws of the United Kingdom (i.e., UK GDPR); and (ii) any other obligation in the Standard Contractual Clauses determined by the Member State in which the data exporter or Data Subject is established shall refer to an obligation under UK GDPR.

p.      Conflict. The Standard Contractual Clauses are subject to this DPA and the additional safeguards set out hereunder. The rights and obligations afforded by the Standard Contractual Clauses will be exercised in accordance with this DPA, unless stated otherwise. In the event of any conflict or inconsistency between the body of this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

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‍Categories of data subjects whose personal data is transferred
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‍‍Customer, its end users, its customers, and/or its employees
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Categories of personal data transferred

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Categories of Personal Data chosen by a controller and issued to processor or subprocessor as the case may be via the Service and may include, name, email, address, and IP address

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

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No Sensitive Data will be transferred

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous   basis).

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On a continuous basis as determined by a controller or on its behalf as permitted under the Agreement.

Nature of the processing

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Processing databases for the Services

Purpose(s) of the data transfer and further processing

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For processor/subprocessor to provide the Services to a controller (or on their behalf) as required under the Agreement

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

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For the term of the Agreement

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

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For the term of the Agreement

‍a.      “UK GDPR IDTA” means the terms of the “International Data Transfer Agreement” (located here: https://ico.org.uk/media/for-organisations/documents/4019538/international-data-transfer-agreement.pdf) and issued pursuant to Section 119A of the Data Protection Act 2018.

b.      “UK GDPR Addendum” or “UK Addendum” means the terms of the “International Data Transfer Addendum to the European Commission’s Standard Contractual Clauses for International Data Transfers” (located here: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf) and issued pursuant to Section 119A of the Data Protection Act 2018.