Data Processing Addendum

Last Updated on September 9, 2024

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) sets out the additional terms, requirements and conditions on which Company and/or its Affiliates will process Personal Data when providing Services to Customer under any agreement between Customer and Company and/or its affiliates.  This DPA contains the mandatory clauses required by Article 28 (3) and the General Data Protection Regulation EU 2016/676.

This DPA includes the following Appendices, which are incorporated herein by reference (as applicable):

1. Appendix 1: Technical and Organizational Measures
2. Appendix 2: List of Authorized Subcontractors
3. Appendix 3: SCCs (if applicable)
4. Appendix 4: UK International Data Transfer Addendum (if applicable)

For the avoidance of doubt, the execution of any Agreement (as defined herein) shall be deemed to constitute acceptance of the Standard Contractual Clauses and acceptance of the list of Company Sub-processors that are incorporated herein, including any Appendices.  Where the Customer wishes or is required to separately execute the Standard Contractual Clauses and accompanying appendices, the Customer should also complete the information as the data exporter and complete the information on the signature page and send the signed Standard Contractual Clauses to the Company by email to [email protected]. 

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. 

“Agreement” means any commercial agreement, including order forms, terms and conditions and this DPA, in each case as signed and executed by the Customer and the Company.

“Applicable Data Protection Laws” means all laws and regulations, including without limitation, laws and regulations of the European Union (e.g., the GDPR and any applicable legal regulations) and Switzerland, applicable to the Processing of Personal Data under the Agreement.

“Authorized Affiliate” means any of the Customer’s Affiliate(s) which (a) is subject to applicable data protection laws and regulations, including those of the European Union, the European Economic Area and/or their Member States, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between the Customer and the Company, but has not signed its own order form or agreement with the Company. 

“Company” means Veritone, Inc. or any of its subsidiary(ies) or affiliate(s) which is (are) a party to any Agreement, which shall include this DPA.  

“Company Group” means the Company and its Affiliates engaged in the Processing of Personal Data.

“Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data; where the purposes and means of such Processing are determined by European Union or Member State law, the controller or the specific criteria for its nomination may be provided for by European Union or Member State law.

“Customer” means the entity that executed the Agreement together with its Affiliates (for so long as they remain Affiliates) which have signed the Agreement. 

“Customer Data” means what is defined in the Agreement as customer data, provided that such data is electronic data and information submitted by or for the Customer pursuant to the Agreement. This DPA does not apply to Third-Party Services, including add-ons.  

“Customer’s Personal Data” means data Processed by the Company for the purposes of the Services provided in alignment with the Agreement, which is defined under Applicable Data Protection Laws as Personal Data. This includes, without limitation, (i) the names and/or contact information of individuals authorized by the Customer to access the Services (e.g., agents and supervisors); and (ii) information collected by the Customer when using the Services. 

“Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“Effective Date” means the date of signing of this DPA by the Customer. 

“GDPR” means the 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).

“Personal Data” means any information relating to  (i) an identified or identifiable natural person (the “Data Subject”) and (ii) an identified or identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, where for each (i) or (ii), such data is Customer Data.

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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. 

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the GDPR.

“Services” means the services and other activities to be supplied to or carried out by the Company pursuant to the Agreement.

“Standard Contractual Clauses” means the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to Processors (as set out in Annex to Commission Decision 2010/87/EU) established in third countries which do not ensure an adequate level of data protection.

“Sub-processor” means a processor appointed by the Company, on its behalf, to Process the Customer’s Personal Data excluding any employee of the Company, including without limitation, those processors set forth on Appendix 3 annexed hereto.

“Supervisory Authority” means an independent public authority that is established by a Member State pursuant to Article 51 of the GDPR.

“Third-Party Services” means certain services and applications operated by various third parties available on or via the Services.

2. ROLE OF THE PARTIES AND THE PROCESSING ACTIVITIES

2.1   Roles of the parties. The parties acknowledge and agree that, with regard to the Processing of Personal Data, the Customer is exclusively acting as the Controller, the Company acts as the Processor and the Company will engage Sub-processors pursuant to the requirements set forth below.

Customer’s Processing of Personal Data. The Customer retains control of the Customer’s Personal Data and remains responsible for its compliance obligations under the Applicable Data Protection Laws, including providing any required notices, information and obtaining any required consents, and for the Processing instructions it gives to the Company. For the avoidance of doubt, the Customer’s instructions for the Processing of Personal Data shall comply with Applicable Data Protection Laws. The Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Customer acquired Personal Data. The Customer specifically acknowledges that its use of the Services will not violate the rights of any data subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the GDPR.

Company’s Processing of Personal Data. The Company shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with the Customer’s documented instructions. 

2.2   Processing Instructions. The Company shall not Process the Customer’s Personal Data other than on the relevant Customer’s documented instructions unless the Processing is required by applicable laws to which the Company or the relevant Sub-processor is subject.

Additional Instructions. The Agreement and this DPA will be considered as the only documented instructions relevant to the purposes of this DPA. Any other instructions will be construed as additional instructions; provided, however, that the additional instructions are (a) reasonable instructions provided by the Customer; (b) approved and accepted by the Company; and (c) consistent with the terms of the Agreement. Any additional instructions shall be subject to an additional agreement that may entail additional pricing between the parties.

Customer Instructions. The Customer shall ensure that its instructions comply with all laws, regulations and rules applicable to the Customer Data and that the Company’s Processing of the Customer Data in accordance with the Customer’s instructions will not cause the Company to violate any applicable law, regulation or rule, including, without limitation, Applicable Data Protection Laws. The Company agrees not to access or use Customer Data, except as necessary to maintain or provide the Service, or as necessary to comply with a binding governmental order.

2.3   Details of the processing 

The main characteristics of the Processing of the Customer’s Personal Data are the following and as set forth on Appendix 1 annexed hereto:

Purpose and nature of the Processing. The Processing of the Customer’s Personal Data aims at the provision of the Services.

Type of Personal Data. The Customer may submit Personal Data to the Services, the extent of which is determined and controlled by the Customer in its sole discretion. 

Duration. The Company will Process Personal Data for the duration of the Agreement unless otherwise agreed upon in writing. 

Categories of Data Subjects. Data subjects may include the Customer’s clients, employees, suppliers and end-users about whom Personal Data is provided to the Company via the Services by (or at the direction of) the Customer.

2.4   Compliance with applicable laws 

Each Party’s Responsibilities. Each party shall be in material compliance with applicable laws and regulations in the performance or receipt, as the case may be, of the Services hereunder, including but not limited to, Applicable Data Protection Laws. 

Customer’s Responsibilities. The Customer undertakes to:

Define the grounds of lawfulness to each Processing and act accordingly, namely, obtaining and keeping proof of the necessary consents;

Give all the necessary information to the data subjects; and

Appoint a data protection officer if required by the GDPR or any relevant laws and, if not, have at least one person responsible for data protection matters available to be contacted by data subjects.

3. AUTHORIZED SUBCONTRACTORS     

3.1   Customer acknowledges and agrees that Company and its affiliates may: (1) engage third party subcontractors, agents, resellers, or auditors to access and Process Personal Data in connection with Services, (an updated current list of the Company’s authorized Sub-processors is set forth on Appendix 3) and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation, the Processing of Personal Data (collectively, “Authorized Subcontractors”).

3.2    At least thirty (30) days before enabling a new party in addition to Authorized Subcontractors to access or participate in the Processing of Personal Data, Company and/ or its affiliates will notify Customer of that update.  Customer may reasonably object to such engagement in writing within thirty (30) days of receipt of notice by Customer. 

 If Customer reasonably objects to an engagement in accordance with this Section 3.2, Company may provide Customer with a written description of commercially reasonable alternative(s), if any, to such engagement, including without limitation, modification to the Services. 

3.3   If Customer does not object to the engagement of a third party in accordance with section 3.2, within thirty (30) days of notice by Company, such third party will be deemed an Authorized Subcontractor for the purposes of this DPA. 

3.4   Company shall ensure that all Authorized Subcontractors (i) have executed confidentiality agreements that prevent them from disclosing any personal data both during and after their engagement by Company and (ii) are subject to obligations regarding the Processing of Personal Data that are no less protective than those set out in this DPA.

4. DATA SUBJECT REQUEST

4.1   Data Subject Requests. The Company shall, to the extent legally permitted, promptly notify the Customer if the Company receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (the “right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request.”

4.2   Cooperation with Customers on Requests. The Customer must provide Data Subjects with a contact or means deemed adequate to exercise their rights with the Customer. In any case, the Company shall not be required to reply directly to the Data Subjects Request or provide a direct helpline or any other communication challenge for purposes of responding to a Data Subject Request. 

4.3   Request Assistance. To the extent the Customer, in its use of the Services, does not have the ability to address a Data Subject Request, the Company shall upon the Customer’s request provide commercially reasonable efforts to assist the Customer in responding to such Data Subject Request, to the extent the Company is legally permitted to do so and the response to such Data Subject Request is required under Applicable Data Protection Laws. To the extent legally permitted, the Customer shall be responsible for any costs arising from the Company’s provision of such assistance.

4.4.  The Company must take such technical and organizational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:

(a)  the rights of Data Subjects under the Applicable Data Protection Laws, including subject access rights, the rights to rectify and erase Personal Data, object to the Processing and automated Processing of Personal Data, and restrict the processing of Personal Data; and

(b)  information or assessment notices served on the Customer by any supervisory authority under the Applicable Data Protection Laws.

4.5   The Company  must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Applicable Data Protection Laws.  The Company must notify the Customer without undue delay if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Applicable Data Protection Laws. The Company will give the Customer its full cooperation and  assistance in responding to any complaint, notice, communication or Data Subject Request.  The Company must not disclose the Personal Data to any Data Subject or to a third party other than at the Customer’s request or instruction, as provided for in this DPA or as required by law.

5. CROSS BORDER TRANSFER OF PERSONAL DATA – IF APPLICABLE

5.1   Any transfer of Personal Data from member states of the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom (the “EEA”) to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, be undertaken by Company through  the  mechanisms of Standard Contractual Clauses ( “SCC” ) provided in Appendix 3 of this Addendum and the UK International Data Transfer Agreement.

5.2   Where Customer consent is granted, the Company may only Process, or permit the Processing, of Personal Data outside the EEA under the following conditions:

(a)  The Company is Processing Personal Data in a territory which is subject to a current finding by the European Commission under the Applicable Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals. 

(b)  The Company participates in a valid cross-border transfer mechanism under the Applicable Data Protection Laws, so that the Company and, where appropriate, the Customer, can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR. 

5.3   If any Personal Data transfer between the Customer and the Company requires execution of SCC in order to comply with the Applicable Data Protection Laws (where the Customer is the entity exporting Personal Data to the Company outside the EEA), the parties will complete all relevant details in, and execute, the SCC contained in Appendix 4 and take all other actions required to legitimize the transfer.

5.4  If the Customer consents to appointment by the Company located within the EEA of a subcontractor located outside the EEA, then the Customer authorizes the Company to enter into SCC contained in Appendix 4 with the subcontractor in the Customer’s name and on its behalf. The Company will make the executed SCC available to the Customer upon request.

6. CONFIDENTIALITY

6.1   Confidentiality. The Company shall ensure that all of its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. The Company shall ensure that such confidentiality obligations survive the termination of the personnel engagement. The Company shall bear responsibility for any breach of confidentiality obligations by any personnel engaged in the Processing of Personal Data as if such breach was the act of the Company itself.

6.2   Limitation of Access. The Company shall ensure that the Company’s access to Personal Data is limited to those of its personnel performing Services in accordance with the Agreement.

7. SECURITY

7.1   Protection of Customer Data.  Taking into account the state of the art and the costs of implementation, the Company shall maintain appropriate technical and organizational measures for the protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, all as set forth more fully on Appendix 2 annexed hereto. 

7.2   Customer Responsibilities. The Customer acknowledges that the Services includes certain features and functionalities that the Customer may elect to use that impact the security of the data Processed by the Customer’s use of the Services. The Customer is responsible for reviewing the information the Company makes available regarding its data security, including its audit reports, and making an independent determination as to whether the Services meets the Customer’s requirements and legal obligations, including its obligations under this DPA. The Customer is further responsible for properly configuring the Services and using available features and functionalities to maintain appropriate security considering the nature of the data Processed by the Customer’s use of the Services.

7.3 Notification of Data Breach. The Company shall, to the extent permitted by law, notify the Customer without undue delay after becoming aware of any Data Breach. To the extent such Data Breach is caused by a violation of the requirements of this DPA by the Company, or by the Company’s negligence or wilful misconduct, the Company shall use best efforts to identify and remediate the cause of such Data Breach to the extent the remediation is within the Company’s reasonable control. The obligations herein shall not apply to incidents that are caused by the Customer or the Customer’s authorised users. 

8. AUDITS

8.1 Upon the Customer’s written request at reasonable intervals and no more than once a year, and subject to reasonable confidentiality controls, the Company shall make available to the Customer (or the Customer’s independent, third-party auditor), which is not a competitor of the Company, information regarding the Company’s compliance with the obligations set forth in this DPA. The Customer may contact the Company in accordance with the “Notices” section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. The Customer shall reimburse the Company for any time expended for any such on-site audit at the Company’s then-current professional services rate, which shall be made available to the Customer upon written request. Prior to the commencement of any such on-site audit, the Company and the Customer shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which the Customer shall be responsible. 

8.2 The Customer shall promptly notify the Company with information regarding any non-compliance discovered during the course of an audit. For the avoidance of doubt, any information obtained by the Customer under this Section 8 shall be treated as Confidential Information of the Company in accordance with the Agreement.

9. EUROPEAN ECONOMIC AREA SPECIFIC PROVISIONS 

9.1 GDPR and UK-GDPR. The Company will Process Personal Data in accordance with the GDPR requirements directly applicable to the Company’s provision of its Services as Processor.

9.2 Data Protection Impact Assessment. Upon the Customer’s request, the Company shall provide reasonable assistance (at the Customer’s expense) needed to fulfill the Customer’s obligation under the GDPR to carry out a data protection impact assessment to the Customer’s use of the Services, to the extent the Customer does not otherwise have access to the relevant information, and to the extent such information is available to the Company. The Company shall provide reasonable assistance to the Customer in connection with Customer’s cooperation or prior consultations with any Supervisory Authority or other competent data privacy authorities, which the Customer reasonably considers to be required by articles 35 or 36 of the GDPR.

10.  AUSTRALIAN AREA SPECIFIC PROVISIONS 

When applicable, the Company will process Personal Data in accordance with the Australian Privacy Act 1988 requirements directly applicable to the Company’s provision of Services as Processor.  

11. DELETION OR RETURN OF CUSTOMER DATA 

11.1    At the Customer’s request, the Company will promptly give the Customer a copy of or access to all or part of the Customer Data or Customer’s Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.

11.2   On termination of any Agreement for any reason or expiry of its term, the Company will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any Customer Data or Customer’s Personal Data related to such Agreement in its possession or control. 

11.3   If any law, regulation, or government or regulatory body requires the Company to retain any documents or materials that the Company would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

11.4   The Company will certify in writing that it has destroyed the Customer Data or Customer’s Personal Data within 30 days after it completes the destruction. 

11.5   Deletion. Following termination or expiry of any Agreement, the Company will delete all Customer Data or Customer’s Personal Data within the timeframe stated in the Agreement. In case of any dispute, the Customer Data or Customer’s Personal Data may be maintained by the Company upon the Customer’s 30 days’ prior written notice, at the Customer’s sole expense.

11.6   Return. In the event the Customer requests the return of Customer Data or Customer’s Personal Data, the Company will provide timely assistance to provide the return of such Customer Data or Customer’s Personal Data, at the Customer’s sole expense. 

12. AUTHORIZED AFFILIATES

12.1   Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between the Company and each such Authorized Affiliate subject to the provisions of the Agreement. Each Authorized Affiliate expressly agrees to be entirely bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by the Customer. 

12.2   Communication.  The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communications with the Company under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates. 

12.3   Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with the Company, it shall, to the extent required under Applicable Data Protection Laws, be entitled to exercise the rights and seek remedies under this DPA, subject to the following:

1. 12.3.1.  Except where Applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against the Company directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together. 
2. 12.3.2.   The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an onsite audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on the Company and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.

13. LIMITATION OF LIABILITY

13.1  Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and the Company, whether in contract, tort or under any other theory of liability, is subject to the “Limitation of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs taken together. 

13.2   For the avoidance of doubt, the Company’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by the Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to the Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.

14. MISCELLANEOUS

14.1   Assignment.  Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed; provided, however, that such consent shall not be required if Company assigns this Agreement in its entirety to an affiliate or to a successor entity in connection with a change in control, including any merger, combination, join venture or sale of all or substantially all of its assets. 

14.2   Controlling Law: 

1. United States and Canada.  If Customer is incorporated or organized under the laws of a state in the United States or a province in Canada, this Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law’s provisions.  The sole and exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in Orange County, California.  The parties hereto consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or federal law, as applicable.
2. Australia.  If Customer is incorporated in Australia, this Agreement will be governed by and construed in accordance with the laws of Australia.  The sole and exclusive jurisdiction and venue for actions related to this Agreement will be the courts located in New South Wales, Australia.  The parties hereto consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Australian law.
3. France.  If Customer is incorporated in France, this Agreement will be governed by and construed in accordance with the laws of France.  The sole and exclusive jurisdiction and venue for actions related to this Agreement will be the Commercial Courts of Paris.  The parties hereto consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by French law.
4. Germany. If Customer is located in Germany, this Agreement will be governed by and construed in accordance with the laws of Germany.  The sole and exclusive jurisdiction and venue for actions related to this Agreement will be the Commercial Court of Berlin. The parties hereto consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by German law. 
5. UK and Rest of World.  If Customer is incorporated in the United Kingdom or any other territory or jurisdiction that is not covered by Sections 14.1 (i)-(iv) hereof, this Agreement will be governed by and construed in accordance with the laws of England and Wales.  The sole and exclusive jurisdiction and venue for actions related to this Agreement will be the courts having competent jurisdiction in London, England.  The parties hereto consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by English law.

14.3   Severability.  All provisions of this Agreement will be considered as separate terms and conditions, and in the event any one will be held illegal, invalid or unenforceable, all other provisions hereof will remain in full force and effect as if any such illegal, invalid, or unenforceable provision were not a part hereof, unless the provision held illegal, invalid or unenforceable is a material provision of this Agreement, in which case, Company and Customer agree to appropriately amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.

14.4   Independent Contractors.  The parties hereunder are independent contractors. Except as expressly provided herein, neither party will have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party.  This Agreement is not intended, nor will it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship. 

14.5   Entire Agreement.  This Agreement, together with all exhibits, order forms, schedules and amendments hereto, constitutes the entire agreement between Company and Customer with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements between the parties concerning the subject matter hereof, whether oral or written.  No waiver, modification, alteration or amendment of any of the terms and conditions hereof will be effective unless and until set forth in writing duly signed by an authorized agent or employee of each of Company and Customer. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if Company accepts or does not otherwise reject the purchase order or other ordering document.

14.6  Force Majeure.  Except for the obligation to make payments of any fees and charges due hereunder, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond such party’s control, including, without limitation, acts of war, terrorism, epidemics or pandemics, acts of God, embargo, riot, sabotage, labour shortage or dispute, governmental act, failure of the Internet or any component or operating network infrastructure thereof (each, a “Force Majeure Event”), provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses commercially reasonable efforts to promptly correct such failure or delay in performance.  If Company is unable to provide Customer with the Services for a period of sixty (60) consecutive days as a result of a continuing Force Majeure Event, either party may elect to terminate this Agreement. 

14.7    Publicity.  Company may use Customer’s name and logo in connection with customer lists on its website, in marketing, media and investor relations materials and in the Company’s SEC filings.  All other references, announcements, and/or press releases with respect to Customer by Company will require the prior written approval of Customer, with such approval not to be unreasonably withheld, conditioned or delayed. 

14.8 Notices.  All notices to either party shall be in writing and delivered by hand, certified mail or overnight delivery to the address set forth in any Agreement, or to such other address as either party shall give by notice to the other party in accordance with this Section and such shall be deemed effective upon delivery.  Alternatively, the parties may, at their election, utilize electronic mail as the method of delivery of any such notice provided hereunder, with a copy, in the case of Company to: [email protected].  Notices sent by email shall be delivered to the email addresses designated by a party during the term of any Agreement and shall be deemed effective upon confirmation of delivery by a “read receipt” or other such notice of delivery generated by the applicable email system, but in any event, by reply of the recipient of such notice.  

This DPA supersedes and replaces all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written, with regard to the subject matter of this DPA, including any prior data processing addenda entered into between the Company and the Customer. If there is any conflict between this DPA and any agreement, including the Agreement, the terms of this DPA shall control.

APPENDIX 1  

DESCRIPTION OF THE PROCESSING

Subject of the Processing

To provide the Services in connection with the Agreement and any applicable Statement(s) of Work entered into thereunder.

Nature and purpose of the Processing

Duration of the processing

As between Customer and Company for the duration of the term of the Agreement.

Categories of data subject and types of Personal Data

Customer may submit Personal Data to the Cloud Subscription Services or to the Licensed Software, which may include, but is not limited to, Personal Data related to the following categories of Data Subjects:

1. Employees, agents, advisors, freelancers, and other personnel of Customer (who are natural persons)
2. Employees of Customer’s business partners and vendors
3. Clients or customers of Customer

Customer may submit Personal Data related to the following categories of Personal Data:

1. Employee ID or other identifier
2. First and Last Name 
3. Title, Position, and Organizational Belonging
4. Competence
5. Data Related to scheduling and reporting
6. Business Contact Information (company, email, phone, physical business address)
7. Personal Contact Information (email, phone, personal address)
8. Government-issued identifications
9. Passport Information
10. Insurance numbers or identifiers

Processing Operations

The personal data will be subject to the following basic processing activities (please specify): organization, structuring, storage, adaptation, use, analysis, computation and any other processing operation required in connection with the Services.

 APPENDIX 2

TECHNICAL AND ORGANISATIONAL MEASURES

In order to protect the confidentiality, integrity and availability of its internal and Customer Data, the Company has implemented an information security program that includes the following technical, administrative/organizational, and physical controls:  

1. Governance and Organizational Controls 

Reporting relationships, organizational structures and proper assignment of responsibilities for systems controls, including the appointment at the executive level of a Chief Information Officer of the Company has implemented a risk assessment framework used to evaluate risks throughout the Company on an ongoing basis. The risk management process incorporates managements’ risk tolerance, and evaluations of new or evolving risks. The Company implements various technical and organizational measures designed to ensure a level of security appropriate to the risks posed to customer data. Such measures seek to prevent unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of access to customer data. Consistent with industry standards set forth in applicable data protection laws, such measures include: 

1.1  Information Security Program

The Company maintains a formal information security program containing administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of customer information. This program is reasonably designed to (i) safeguard the security and confidentiality of customer information, (ii) protect against anticipated threats or hazards to the security or integrity of the information, and (iii) protect against unauthorized access to or use of the information. This is accomplished by:

• Written security policies designed to be consistent with the ISO/IEC 27001:2013 information security standards, including IT Security Policies and an Acceptable Use agreement;
• Written privacy policies; 
• New Hire and Annual security awareness training for staff; and 
• Incident Response and Disaster Recovery plans;

1.2 Access Control of Processing Areas 

The Company implements suitable measures to prevent unauthorized persons from gaining access to the data processing equipment (namely database and application servers and related hardware) where customer data is accessed, processed or used. This is accomplished by:

• establishing security areas; 
• securing data processing equipment and personal computers;
• establishing access authorizations for employees and third parties, including the respective documentation;
• restriction of access card-keys;
• all access to the data center where personal data are hosted is logged, monitored, and tracked; and
• the data center where personal data are hosted is secured by appropriate security measures.

2. Access Control to Data Processing Systems 

The Company implements suitable measures to prevent its data processing systems from being used by unauthorized persons. This is accomplished by: 

• identification of the individual user to the Company systems;
• automatic time-out of user access if left idle, identification and password required to reopen;
• accounts are monitored and access revoked when several erroneous passwords are entered, log file of events (monitoring of break-in-attempts); 
• issuing and safeguarding of identification codes and secure tokens;
• strong password requirements (minimum length, use of special characters, re-use etc.);
• protection against external access by means of state-of-the-art web application firewalls and network access controls.
• employee access will be safeguarded by a VPN connection with multi-factor login.
• all access to data content on machines or computer systems is logged, monitored, and tracked. 

3. Access Control to Use Specific Areas of Data Processing Systems 

The Company commits that the persons entitled to use its data processing systems are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that customer data cannot be read, copied or modified, or removed without authorization. This will be accomplished by: 

• employee policies and training in respect of each employee’s access rights to personal data; 
• access rights are granted exclusive to specific job and/or functions;
• monitoring capability in respect of individuals who delete, add or modify personal data; 
• effective and measured disciplinary action against individuals who access personal data without authorization; 
• release of data to only authorized persons;
• control of files, controlled and documented destruction of data; and 
• policies controlling the retention of back-up copies. 

4. Transmission Control 

The Company implements suitable measures to prevent customer data from being read, copied, altered, or deleted by unauthorized parties during the transmission thereof or during the transport of the data media and to ensure that it is possible to check and establish to which bodies the transfer of customer data by means of data transmission facilities is envisaged. This is accomplished by: 

• use of state-of-the-art firewall and encryption technologies to protect the gateways and pipelines through which the data travels;
• the use of 128bit SSL-encryption for all https-connections; 
• implementation of secure two-factor VPN connections to safeguard the connection to the internet, if applicable; 
• encryption of customer data by state-of-the-art encryption technology; and
• constant monitoring of infrastructure (i.e., ICMP-Ping at network level, disk space examination at system level, successful delivery of specified pages at application level).

5. Input Control into Data Processing Systems

The Company implements suitable measures to ensure that it is possible to check and establish whether and by whom personal data have been input into data processing systems or removed. This is accomplished by: 

• an authorization policy for the input of data into hosted service, as well as for the reading, alteration and deletion of stored data; 
• authentication of authorized personnel; 
• protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;
• utilization of user codes (passwords and tokens); 
• automatic log-off of user ID’s that have not been used for a substantial period of time;
• logging or otherwise evidencing input authorization; and 
• electronic recording of entries.

6. Instructional Control of Personal Data 

The Company ensures that customer data may only be processed in accordance with a Company customer agreement together with any reasonable and relevant instructions received in writing from authorized customer personnel from time to time which may be specific instructions or instructions of a general nature as set out in a Company customer agreement or as otherwise agreed between customer and Company during the term of a Company customer agreement. This is accomplished by binding policies and procedures for Company employees. 

7. Availability Control 

The Company implements suitable measures to ensure that customer data are protected from accidental destruction or loss. This is accomplished by: 

• infrastructure redundancy: reporting data is stored on hardware with redundant disks subsystem backed up in real time with off-site replication backups. 

8. Separation of Processing for Different Purposes 

The Company implements suitable measures to ensure that data collected for different purposes can be processed separately. This is accomplished by: 

• access to data is separated through multiple diverse applications for the appropriate users.
• customer data is separated from development and testing environments through various network and logical controls; and
• interfaces, batch processes, and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately.

9.  Sub-processors 

The Company engages various sub-processors in connection with its cloud infrastructure. The Company ensures that it has robust contractual provisions in place to ensure compliance by such sub-processors with the organizational security measures outlined herein.

APPENDIX 3

LIST OF AUTHORISED SUB-PROCESSORS

AMAZON WEB SERVICES (“AWS”)

GOOGLE 

SAP 

SENGRID 

MICROSOFT 

ORACLE

WORKDAY 

SALESFORCE

 DOCUSIGN

PENDO.IO INC.

ARTIRIX LIMITED / PLANDEK

MAILJET SAS

TEXTKERNEL

APPENDIX 3 (IF APPLICABLE)

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

(a)The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation)  for the transfer of personal data to a third country.
(b) The Parties:

1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and
2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
3. Clause 9(a), (c), (d) and (e);
4. Clause 12(a), (d) and (f);
5. Clause 13;
6. Clause 15.1(c), (d) and (e);
7. Clause 16(e);
8. Clause 18(a) and (b).

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B

Clause 7 – Intentionally Omitted

Docking clause

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

1. (a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
2. (b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

1. (a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
2. (b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3. (c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information  then available and further information shall, as it becomes available, subsequently be provided without undue delay.
4. (d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

1. (a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
2. (b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
3. (c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
4. (d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
5. (e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist  in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

1. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
2. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
   1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
   2. refer the dispute to the competent courts within the meaning of Clause 18.
4. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where   the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

Where the data exporter 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, as indicated in Annex I.C, shall act as competent supervisory authority.

Where the data exporter 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) without however having to appoint a representative pursuant  to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

1. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

1. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
   1. the specific circumstances of the transfer, including the length of the  processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
   2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
   3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

Notification

1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
   1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
   2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the  country of destination; such notification shall include all information available to the importer.
2. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
4. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
5. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

Review of legality and data minimisation

1. The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of  destination,  applicable  obligations  under  international  law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
2. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
   1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
   2. the data importer is in substantial or persistent breach of these Clauses; or
   3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

1. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
2. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing Law

These Clauses shall be governed by the law of the EU Member State in which the date exporter is established.   Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights.  The Parties agree that this shall be the law of France.

Clause 18

Choice of forum and jurisdiction

1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
2. The Parties agree that those shall be the courts of said EU Member State.
3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can be achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A. LIST OF PARTES

Data exporter(s): 

Name: The Data Exporter is the Customer that agrees to the Company’s services in the Agreement.

Activities relevant to the data transferred under these Clauses: Processing of Customer Data for the purposes of conducting analytics and other Services under the Agreement at the direction of Customer.

Signature and date: This agreement is deemed to be signed and executed by Customer as of the date on which the Customer begins using Company’s services.

Role (controller/processor): Controller

Data importer(s):

Name:  Veritone, Inc.

Address: 5291 California Avenue, Suite 350, Irvine, CA 92617 USA

Contact person’s name, position and contact details: Craig Gatarz, Chief Legal Officer; [email protected].

Activities relevant to the data transferred under these Clauses: Processing of Customer Data for the purposes of conducting analytics and other Services under the Agreement at the direction of Customer

Signature and date: This agreement is deemed to be signed and executed by Customer as of the date on which the Customer begins using Company’s services.

Role (controller/processor): Processor  

 B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

• Consumers whose data is collected by Customer

Categories of personal data transferred

• Contact information, professional or work-related information, education background
  information.

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.

• Depending on the Veritone services used by Customer, this may include race or ethnic origin, trade union memberships, or biometric data (e.g., voiceprint)

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

• Ongoing

Nature of the processing

• Processing Customer Data for the purposes of fulfilling Company’s obligations to the Customer under the Agreement, including performing analytics.

Purpose(s) of the data transfer and further processing

• To process the Customer Data on Company’s and its subprocessors’ systems outside the European Economic Area.

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

• Until the Agreement between Customer and Veritone is terminated.

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

• Subprocessors will only process Personal Data on Company’s behalf to provide services to support Company’s provision of services to Customer.

C.  COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

• Ireland

APPENDIX 4

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

Part 1: Tables

Table 1: Parties

Table  2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Table 4: Ending this Addendum when the Approved Addendum Changes

Part 2: Mandatory Clauses

Entering into this Addendum

Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum 

Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.

Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy 

Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section ‎10 will prevail.

Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

1. together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers; 
2. Sections ‎9 to ‎11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
3. this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

Unless the Parties have agreed alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made: 

1. 1. References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
   2. In Clause 2, delete the words:
      “and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
   3. Clause 6 (Description of the transfer(s)) is replaced with:
      “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
   4. Clause 8.7(i) of Module 1 is replaced with:
      “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
   5. Clause 8.8(i) of Modules 2 and 3 is replaced with:
      “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
   6. References to “Regulation (EU) 2016/679”, “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 (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
   7. References to Regulation (EU) 2018/1725 are removed;
   8. References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
   9. The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
   10. Clause 13(a) and Part C of Annex I are not used; 
   11. The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
   12. In Clause 16(e), subsection (i) is replaced with:
       “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
   13. Clause 17 is replaced with:
       “These Clauses are governed by the laws of England and Wales.”;
   14. Clause 18 is replaced with:
       “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
   15. The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11. 

Amendments to this Addendum 

The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

From time to time, the ICO may issue a revised Approved Addendum which: 

1. makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
2. reflects changes to UK Data Protection Laws;

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified. 

If the ICO issues a revised Approved Addendum under Section ‎18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in: 

its direct costs of performing its obligations under the Addendum; and/or 

its risk under the Addendum, 

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Alternative Part 2 Mandatory Clauses: