Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the Terms of Service (“Principal Agreement”) between: (i) Kyuda, Inc. (“Vendor”) acting on its own behalf and as agent for each Vendor Affiliate; and (ii) you, the customer entering into this Addendum and the accompanying Terms of Service.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.

1. Definitions

1.1. In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Controller Personal Data in respect of which any Controller Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Controller Personal Data in respect of which any Controller Group Member is subject to any other Data Protection Laws;

1.1.2. “Controller Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Controller, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.1.3. “Controller Group Member” means Controller or any Controller Affiliate;

1.1.4. “Controller Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Controller Group Member pursuant to or in connection with the Principal Agreement;

1.1.5. “Contracted Processor” means Vendor or a Subprocessor;

1.1.6. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.7. “EEA” means the European Economic Area;

1.1.8. “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.9. “GDPR” means EU General Data Protection Regulation 2016/679;

1.1.10. “Restricted Transfer” means:

1.1.10.1. a transfer of Controller Personal Data from any Controller Group Member to a Contracted Processor; or

1.1.10.2. an onward transfer of Controller Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,

in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 6.4.3 or 12 below;

1.1.11. “Services” means the services and other activities to be supplied to or carried out by or on behalf of Vendor for Controller Group Members pursuant to the Principal Agreement;

1.1.12. “Standard Contractual Clauses” means the annex found in EU Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (available as of the Effective Date at http://data.europa.eu/eli/dec/2010/87/oj), completed as described in the “Data Transfers” section below.

1.1.13. “Subprocessor” means any person (including any third party and any Vendor Affiliate, but excluding an employee of Vendor or any of its sub-contractors) appointed by or on behalf of Vendor or any Vendor Affiliate to Process Personal Data on behalf of any Controller Group Member in connection with the Principal Agreement; and

1.1.14. “Vendor Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Vendor, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

1.2. The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

1.3. The “Standard Contractual Clauses” referenced above (including any amendments to them we may agree to, over time) apply and take precedence over the rest of this Addendum to the extent of any conflict. The Standard Contractual Clauses will be deemed completed as follows:

1.3.1. The “exporter” is the you, the customer,

1.3.2. The “importer” is Kyuda.

1.3.3. Where Clause 9 of the Standard Contractual Clauses requires specification of the law that governs the Standard Contractual Clauses, the parties select the law of the United Kingdom.

1.3.4. A supplemental appendix, “Appendix 1” to Standard Contractual Clauses, is set forth in [Appendix 1]{.ul} at the end of this document.

1.3.5. By entering into this DPA, the parties are deemed to be signing and executing the Standard Contractual Clauses

2. Authority

Vendor warrants and represents that, before any Vendor Affiliate Processes any Controller Personal Data on behalf of any Controller Group Member, Vendor’s entry into this Addendum as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Vendor Affiliate.

3. Processing of Controller Personal Data

3.1. Vendor and each Vendor Affiliate shall:

3.1.1. comply with all applicable Data Protection Laws in the Processing of Controller Personal Data; and

3.1.2. not Process Controller Personal Data other than on the relevant Controller Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Vendor or the relevant Vendor Affiliate shall to the extent permitted by Applicable Laws inform the relevant Controller Group Member of that legal requirement before the relevant Processing of that Personal Data.

3.2. Each Controller Group Member:

3.2.1. shall comply with all applicable Data Protection Laws in the Processing of Controller Personal Data

3.2.2. instructs Vendor and each Vendor Affiliate (and authorizes Vendor and each Vendor Affiliate to instruct each Subprocessor) to:

3.2.2.1. Process Controller Personal Data; and

3.2.2.2. in particular, transfer Controller Personal Data to any country or territory,

as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and

3.2.3. warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in section 3.2.1 on behalf of each relevant Controller Affiliate.

4. Vendor and Vendor Affiliate Personnel

Vendor and each Vendor Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Controller Personal Data, to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

5. Security

5.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Vendor and each Vendor Affiliate shall in relation to the Controller Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

5.2. In assessing the appropriate level of security, Vendor and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

6. Subprocessing

6.1. Each Controller Group Member authorizes Vendor and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.

6.2. Vendor and each Vendor Affiliate may continue to use those Subprocessors already engaged by Vendor or any Vendor Affiliate as at the date of this Addendum, subject to Vendor and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.

6.3. Vendor shall post the names of its Subprocessors on a web page, at docs.kyuda.io/privacy/subprocessors; where Controller has not notified Vendor in writing of its objections (on reasonable grounds) to any such Subprocessor within 15 days of such posting, Controller shall be deemed to have consented to such Subprocessing. If, within 15 days of receipt of that notice, Controller notifies Vendor in writing of any objections (on reasonable grounds) to the proposed appointment, neither Vendor nor any Vendor Affiliate shall appoint (or disclose any Controller Personal Data to) that proposed Subprocessor until either reasonable steps have been taken to address the objections raised by any Controller Group Member or Controller has been provided with a reasonable written explanation of the steps taken, or Controller has been given an opportunity to terminate its active agreements with Vendor immediately (which shall not relieve Controller of its obligation to pay Vendor for any services already provided or amounts already due and owing).

6.4. With respect to each Subprocessor, Vendor or the relevant Vendor Affiliate shall:

6.4.1. before the Subprocessor first Processes Controller Personal Data (or, where relevant, in accordance with section 6.2, carry out adequate due diligence and/or secure adequate representations to ensure that the Subprocessor is capable of providing the level of protection for Controller Personal Data required by the Principal Agreement;

6.4.2. ensure that the arrangement between on the one hand (a) Vendor, or (b) the relevant Vendor Affiliate, or © the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Controller Personal Data as those set out in this Addendum and meet the requirements of article 28(3) of the GDPR;

6.4.3. if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) Vendor, or (b) the relevant Vendor Affiliate, or © the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Controller Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Controller Group Member(s) (and Controller shall procure that each Controller Affiliate party to any such Standard Contractual Clauses co-operates with their population and execution); and

6.4.4. provide to Controller for review such copies of the Contracted Processors’ agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Addendum) as Controller may request from time to time.

6.5. Vendor and each Vendor Affiliate shall make best efforts to ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Controller Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Vendor.

7. Data Subject Rights

7.1. Taking into account the nature of the Processing, Vendor and each Vendor Affiliate shall assist each Controller Group Member by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller Group Members’ obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

7.2. Vendor shall:

7.2.1. promptly notify Controller if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Controller Personal Data; and

7.2.2. ensure that the Contracted Processor does not respond to that request except on the documented instructions of Controller or the relevant Controller Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Vendor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.

8. Personal Data Breach

8.1. Vendor shall notify Controller without undue delay upon Vendor or any Subprocessor becoming aware of a Personal Data Breach affecting Controller Personal Data, providing Controller with sufficient information to allow each Controller Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

8.2. Vendor shall co-operate with Controller and each Controller Group Member and take such reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

9. Data Protection Impact Assessment and Prior Consultation

Vendor and each Vendor Affiliate shall provide reasonable assistance to each Controller Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required of any Controller Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

10. Deletion or return of Controller Personal Data

10.1. Subject to sections 10.2 and 10.3 Vendor and each Vendor Affiliate shall promptly and in any event within 30 days of the date of cessation of any Services involving the Processing of Controller Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Controller Personal Data.

10.2. Subject to section 10.3, Controller may in its absolute discretion by written notice to Vendor within 30 days prior to the Cessation Date require Vendor and each Vendor Affiliate to (a) return a complete copy of all Controller Personal Data to Controller by secure file transfer in such format as is reasonably notified by Controller to Vendor; and then (b) delete and procure the deletion of all other copies of Controller Personal Data Processed by any Contracted Processor. Vendor and each Vendor Affiliate shall comply with any such written request within 30 days of the Cessation Date.

10.3. Each Contracted Processor may retain Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Vendor and each Vendor Affiliate shall ensure the confidentiality of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.

10.4. Vendor shall upon Controller’s written request provide written certification to Controller that it and each Vendor Affiliate has fully complied with this section 10 within 30 days of the Cessation Date.

11. Audit rights

11.1. Subject to sections 11.2 to 11.4, Vendor and each Vendor Affiliate shall make available to each Controller Group Member on request all information reasonably necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Controller Group Member or an auditor mandated by any Controller Group Member in relation to the Processing of the Controller Personal Data by the Contracted Processors. Such audits may be made subject to additional confidentiality or security-related conditions or terms, as reasonably necessary to protect Vendor’s own or its other clients’ confidential and proprietary information.

11.2. Information and audit rights of the Controller Group Members only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).

11.3. Controller or the relevant Controller Affiliate undertaking an audit shall give Vendor or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Such audit may be subject to additional reasonable confidentiality and security agreements and requirements. Further, a Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:

11.3.1. to any individual unless he or she produces reasonable evidence of identity and authority;

11.3.2. outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Controller or the relevant Controller Affiliate undertaking an audit has given notice to Vendor or the relevant Vendor Affiliate that this is the case before attendance outside those hours begins; or

11.3.3. for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:

11.3.3.1. Controller or the relevant Controller Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Vendor’s or the relevant Vendor Affiliate’s compliance with this Addendum; or

11.3.3.2. A Controller Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory,

where Controller or the relevant Controller Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Vendor or the relevant Vendor Affiliate of the audit or inspection.

12. Restricted Transfers

12.1. Subject to section 12.3, each Controller Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Controller Group Member to that Contracted Processor.

12.2. The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:

12.2.1. the data exporter becoming a party to them;

12.2.2. the data importer becoming a party to them; and

12.2.3. commencement of the relevant Restricted Transfer.

12.3. Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.

12.4. Vendor warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a Vendor Affiliate, Vendor’s or the relevant Vendor Affiliate’s entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 13.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.

13. General Terms

13.1. Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:

13.1.1. the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and

13.1.2. this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.

13.2. Nothing in this Addendum reduces Vendor’s or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Vendor or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

13.3. Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of conflicts between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.

13.4. The parties may:

13.4.1. from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1, as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and

13.4.2. propose any other variations to this Addendum which Controller reasonably considers to be necessary to address the requirements of any Data Protection Law.

13.5. If Controller gives notice under section 13.4.1:

13.5.1. Vendor and each Vendor Affiliate shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to seek to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and

13.5.2. Controller shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Vendor to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1 and/or 13.5.1.

13.6. If Controller gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Controller’s notice as soon as is reasonably practicable.

13.7. Neither Controller nor Vendor shall require the consent or approval of any Controller Affiliate or Vendor Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.

13.8. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

13.9. Nothing in this Agreement shall affect any indemnification provisions set forth in underlying agreements between the parties, including any Master Service Agreement of Terms of Service; nor shall this Agreement create new obligations of indemnification from one party to the other, except where expressly set forth herein.

APPENDIX 1: DETAILS OF PROCESSING OF CONTROLLER PERSONAL DATA

This Appendix forms part of the Standard Contractual Clauses.

Data Importer

The data importer is Kyuda, an application and workflow services platform.

Data Exporter

The data exporter is the customer (“Customer”) entering into this Addendum, who is engaging Kyuda’s platform and services, including to house its software code and applications.

Data subjects

The personal data transferred concern data subjects whose personal data may be included within the software, code or other information transferred to and housed by the Kyuda platform, in the course of the above services.

Categories of data

The personal data transferred will be determined by Customer, pursuant to the services required. They may include, for instance, certain personal data (e.g., email addresses in clear or hashed form) embedded in code, such as for application testing purposes.

Special categories of data (if appropriate)

It is not anticipated or intended that special categories of data will be provided by Customer.

Processing operations (including subject matter, nature, purpose and duration of Processing)

The personal data transferred will be subject to the following basic processing activities (please specify):

Kyuda will Process the Personal Data solely as set forth in the DPA and as further described in the Terms of Service.