Data processing addendum

This Data Processing Addendum, including its schedules (“DPA”), is incorporated into and forms part of the Master Services Agreement or other agreement in place between Ketch and Customer covering Customer’s use of Ketch’s Services (the “Agreement”). Capitalized terms used but not defined herein have the meanings set forth in the Agreement.
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In the course of providing the Services to Customer pursuant to the Agreement, Ketch may Process Personal Data on behalf of Customer and the parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
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DATA PROCESSING TERMS

1. DEFINITIONS.

‍“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “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 entity which determines the purposes and means of the Processing of Personal Data.

“Customer” has the meaning set forth in the Agreement.

‍“Customer Data” means what is defined in the Agreement as “Customer Data.” 

‍“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states, applicable to the Processing of Personal Data under the Agreement as amended from time to time.

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

"Europe" means the European Union, the European Economic Area, Switzerland and the United Kingdom.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), including as implemented or adopted under the laws of the United Kingdom.

‍“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as Personal Data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

‍“Processing” or “Process” 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 the entity which Processes Personal Data on behalf of the Controller.

“Public Authority” means a government agency or law enforcement authority, including judicial authorities.

‍“Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj. 

‍“Sub-processor” means any Processor engaged by Ketch.

2. PROCESSING OF PERSONAL DATA.

2.1. Roles of the parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is a Controller, Ketch is a Processor and that Ketch will engage Sub-processors pursuant to the requirements set forth in section 5 “Sub-processors” below.

2.2. Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of Ketch as Processor (including where the Customer is a Processor, by ensuring that the ultimate Controller does so). For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges and agrees that its use of the Services will not violate the rights of any Data Subject, including those that have opted-out from sales or other disclosures of Personal Data, to the extent applicable under Data Protection Laws and Regulations. Customer has the right to take reasonable and appropriate steps to remediate Ketch’s noncompliance with Data Protection Laws and Regulations.

2.3. Ketch’s Processing of Personal Data. Ketch shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions.  Customer hereby instructs Ketch to process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Customer’s users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. Ketch shall promptly notify Customer if it determines it can no longer meet its obligations under Data Protection Laws and Regulations.

2.4. Details of the Processing. The subject-matter of Processing of Personal Data by Ketch is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Description of Processing/Transfer) to this DPA.

3. RIGHTS OF DATA SUBJECTS. 

3.1. Ketch shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or request it has received from a Data Subject such as a Data Subject’s right to know/access, correct/rectification, right to opt out, restrict Processing, delete/erasure (“right to be forgotten”), data portability, and object to the Processing, each such request being a “Data Subject Request”. Ketch shall not respond to a Data Subject Request itself, except that Customer authorizes Ketch to redirect the Data Subject Request as necessary to allow Customer to respond directly. 

3.2. Taking into account the nature of the Processing, Ketch shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. 

3.3. To the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Ketch shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request. To the extent legally permitted, Customer shall be responsible for any costs arising from Ketch’s provision of such assistance.

4. KETCH PERSONNEL.

4.1.  Confidentiality. Ketch shall ensure that 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. Ketch shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

4.2. Reliability. Ketch shall take commercially reasonable steps to ensure the reliability of any Ketch personnel engaged in the Processing of Personal Data.

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

4.4. Data Protection Officer. Ketch and its Affiliates appointed a data protection officer. The appointed person may be reached at dpo@ketch.com.

5. SUB-PROCESSORS.

5.1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Ketch’s Affiliates may be retained as Sub-processors; and (b) Ketch and Ketch’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Ketch or a Ketch Affiliate has entered into a written agreement with each Sub-processor containing, in substance, data protection obligations no less protective than those in the Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2. List of Current Sub-processors. A current list of Sub-processors for the Services, including the identities of those Sub-processors and their country of location, may be found at https://www.ketch.com/subprocessors. Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. The page contains a mechanism to subscribe to notifications of new Sub-processors for each applicable Service, and if Customer subscribes, Ketch shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data to provide the applicable Services.

5.3. Objection Right for New Sub-processors. If Customer objects to a new Sub-processor on reasonable data protection grounds, Customer may notify Ketch within thirty (30) days of receipt of Ketch’s notice in accordance with the mechanism set out in section 5.2.  If Customer objects to a new Sub-processor as permitted in the preceding sentence, Ketch will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer.

5.4. Liability. Ketch shall be liable for the acts and omissions of its Sub-processors to the same extent Ketch would be liable if performing the services of each Sub-processor directly under the terms of this DPA, unless otherwise set forth in the Agreement.

6. SECURITY.

6.1. Controls for the Protection of Customer Data. Ketch shall maintain appropriate technical and organizational measures for 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, as set forth in Schedule 3. Ketch regularly monitors compliance with these measures. Ketch will not materially decrease the overall security of the Services during a subscription term.

6.2. Audit. Ketch shall maintain an audit program to help ensure compliance with the obligations set out in this DPA and shall make available to Customer information to demonstrate compliance with the obligations set out in this DPA as set forth in this section 6.2.

6.2.1. Third-party Certifications and Audits. Ketch has obtained the third-party certifications and audits for the Services. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Ketch shall make available to Customer (or Customer’s Third-party Auditor - as defined below in section 6.2.4) information regarding Ketch’s compliance with the obligations set forth in this DPA. Ketch has obtained ISO 27001 certifications and SSAE 18 Service Organization Control (SOC) 2 Type II reports for the Services. Ketch agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Agreement. Upon request, Ketch shall also provide a requesting Customer with a report and/or confirmation of Ketch's audits of third party Sub-processors' compliance with the data protection controls set forth in this DPA and/or a report of third party auditors' audits of third-party Sub-processors that have been provided by those third-party Sub-processors to Ketch, to the extent such reports or evidence may be shared with Customer (“Third-party Sub-processor Audit Reports”). Customer acknowledges that (i) Third-party Sub-processor Audit Reports shall be considered Confidential Information as well as confidential information of the third-party Sub-processor and (ii) certain third-party Sub-processors to Ketch may require Customer to execute a non-disclosure agreement with them in order to view a Third-party Sub-processor Audit Report.

6.2.2.On-Site Audit. Customer may contact Ketch to request an on-site audit of Ketch’s Processing activities covered by this DPA (“On-Site Audit”). An On-Site Audit may be conducted by Customer either itself or through a Third-party Auditor (as defined below in section 6.2.4) selected by Customer when:

(i) the information available pursuant to section “Third-party Certifications and Audits” is not sufficient to demonstrate compliance with the obligations set out in this DPA and its Schedules;

(ii) Customer has received a notice from Ketch of a Customer Data Incident; or

(iii) such an audit is required by Data Protection Laws and Regulations or by Customer’s competent supervisory authority.

Any On-Site Audits will be limited to Customer Data Processing and storage facilities operated by Ketch or any of Ketch’s Affiliates. Customer acknowledges that Ketch operates a multi-tenant cloud environment. Accordingly, Ketch shall have the right to reasonably adapt the scope of any On-Site Audit to avoid or mitigate risks with respect to, and including, service levels, availability, and confidentiality of other Ketch customers’ information.

6.2.3.Reasonable Exercise of Rights.

‍An On-Site Audit shall be conducted by Customer or its Third-party Auditor:

(i) acting reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Services used by Customer;

(ii) up to one time per year with at least three weeks’ advance written notice. If an emergency justifies a shorter notice period, Ketch will use good faith efforts to accommodate the On-Site Audit request; and

(iii) during Ketch’s normal business hours, under reasonable duration and shall not unreasonably interfere with Ketch’s day-to-day operations.Before any On-Site Audit commences, Customer and Ketch shall mutually agree upon the scope, timing, and duration of the audit and the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by or on behalf of Ketch.

6.2.4. Third-party Auditor.

‍A Third party Auditor means a third-party independent contractor that is not a competitor of Ketch. An On-Site Audit can be conducted through a Third party Auditor if:

(i) prior to the On-Site Audit, the Third party Auditor enters into a non-disclosure agreement containing confidentiality provisions no less protective than those set forth in the Agreement to protect Ketch’s proprietary information; and

(ii) the costs of the Third party Auditor are at Customer’s expense.

6.2.5. Findings. Customer must promptly provide Ketch with information regarding any non-compliance discovered during the course of an On-Site Audit.

6.3. Data Protection Impact Assessment. Upon Customer’s request, Ketch shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Ketch.

7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION. Ketch maintains security incident management policies and procedures and shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Ketch or its Sub-processors of which Ketch becomes aware (a “Customer Data Incident”). Ketch shall make reasonable efforts to identify the cause of such Customer Data Incident and take such steps as Ketch deems necessary and reasonable to remediate the cause of such a Customer Data Incident to the extent the remediation is within Ketch’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.

8. GOVERNMENT ACCESS REQUESTS.

8.1. Ketch requirements. In its role as a Processor, Ketch shall maintain appropriate measures to protect Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including by implementing appropriate technical and organizational safeguards to protect Personal Data against any interference that goes beyond what is necessary in a democratic society to safeguard national security, defense and public security. If Ketch receives a legally binding request to access Personal Data from a Public Authority, Ketch shall, unless otherwise legally prohibited, promptly notify Customer including a summary of the nature of the request. To the extent Ketch is prohibited by law from providing such notification, Ketch shall use commercially reasonable efforts to obtain a waiver of the prohibition to enable Ketch to communicate as much information as possible, as soon as possible. Further, Ketch shall challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful. Ketch shall pursue possibilities of appeal. When challenging a request, Ketch 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. Ketch agrees it will provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request. Ketch shall promptly notify Customer if Ketch becomes aware of any direct access by a Public Authority to Personal Data and provide information available to Ketch in this respect, to the extent permitted by law. For the avoidance of doubt, this DPA shall not require Ketch to pursue action or inaction that could result in civil or criminal penalty for Ketch such as contempt of court.

8.2. Sub-processors requirements. Ketch shall ensure that Sub-processors involved in the Processing of Personal Data are subject to the relevant commitments regarding Government Access Requests in the Standard Contractual Clauses.

9. RETURN AND DELETION OF CUSTOMER DATA. Ketch shall, upon Customer’s written request, promptly destroy or return any Personal Data after the end of the provision of Services, unless storage of the Personal Data is required by applicable law.

10. LIMITATION OF LIABILITY. Each party’s liability arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement.

11. CCPA SERVICE PROVIDER DISCLOSURE. In addition to the terms of this DPA and to the extent Ketch processes “personal information” as defined under the California Consumer Privacy Act of 2018 as amended from time to time, including as amended by the California Privacy Rights Act, the “CCPA”), this section 11 shall apply. The parties acknowledge and agree that, in its provision of the Services, Ketch will act as Customer’s service provider in processing Personal Information on behalf of Customer.

11.1. For the purposes of this section 11: (i) the terms “business purpose”, “consumer”, “sell,” “share” and, “service provider” shall have the meanings given to those terms under the CCPA; and (ii) “Personal Information,” with respect to the information of California consumers, has the meaning given in the CCPA to “personal information,”, but specifically includes any Customer Data constituting personal information.

11.2. In accordance with the CCPA, Ketch may engage in the following enumerated business purposes: (i) security detection and protection; (ii) debugging and repairing; (iii) short-term, transient use; (iv) performing services; (v) internal research and development; and (vi) quality and safety maintenance.

11.3. With respect to the Services, except as otherwise permitted by the CCPA, Ketch is prohibited from: (i) selling or sharing Personal Information, (ii) combining Personal Information received from Customer with Personal Information from other sources, and (iii) retaining, using, or disclosing Personal Information, other than (a) for a business purpose under the CCPA on behalf of Customer and the specific purpose of performing the Services, as further described in the applicable Documentation, or as otherwise permitted under the CCPA, or (b) as may otherwise be permitted for service providers or under a comparable exemption from “sale” in the CCPA, as reasonably determined by Ketch. Ketch may, however, disclose the Personal Information to its own service providers, if any, where Ketch has carried out adequate due diligence on each such service provider and included terms in the contract between Ketch and such service provider that are equivalent to those set out in this section 11.

11.4. Ketch shall promptly and in good faith take such actions and provide such information and assistance as Customer may reasonably request and as directly related to the Services to enable Customer to honor requests of individuals to exercise their rights under the CCPA.

11.5. Ketch confirms that it understands and will comply with the restrictions set forth in this section and the CCPA.  Ketch shall promptly notify Customer if it determines it can no longer meet its obligations under the CCPA.

11.6. Customer has the right to take reasonable and appropriate steps to ensure Ketch’s compliance with the CCPA and, upon notice, to stop and remediate any unauthorized use of personal information received from Customer.

12. EUROPE SPECIFIC PROVISIONS.

12.1. Definitions. For the purposes of this section 12 and Schedule 1 these terms shall be defined as follows:

‍"EU/UK C-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Two (Controller-to-Processor).

‍"EU/UK P-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II III and IV (as applicable) to the extent they reference Module Three (Processor-to-Processor).

‍“European Personal Data” means Personal Data subject to European Data Protection Laws and Regulations.

‍“European Data Protection Laws and Regulations” means the Data Protection Laws and Regulations applying in Europe.

“Third-Country Transfer” means a transfer of European Personal Data that is not subject to a valid and effective adequacy decision by the European Commission (or, in respect of the UK or Switzerland, the equivalent body) at the time of the transfer. For so long as the EU-US Data Privacy Framework (and the UK Extension and Swiss-US Data Privacy Framework, as applicable) remains a valid and effective adequacy decision and Ketch or the relevant Sub-processor is duly certified thereunder, the parties agree that transfers to such entities under the relevant Framework are not considered Third-Country Transfers.

12.2. GDPR. Ketch will Process Personal Data in accordance with the GDPR requirements directly applicable to Ketch’s provision of its Services.

12.3. Customer Instructions. Ketch shall inform Customer immediately (i) if, in its opinion, an instruction from Customer constitutes a breach of the GDPR and/or (ii) if Ketch is unable to follow Customer’s instructions for the Processing of Personal Data.

12.4. Transfer mechanisms for data transfers. If, in the performance or use of the Services, European Personal Data is subject to a Third-Country Transfer, the transfer mechanisms listed below shall apply:

12.4.1. The EU/UK C-to-P Transfer Clauses. Where Customer is a Controller and a data exporter of Personal Data and Ketch is a Processor and data importer in respect of that Personal Data, then the parties shall comply with the EU/UK C-to-P Transfer Clauses, subject to the additional terms in section 1 of Schedule 1; and/or

12.4.2. The EU/UK P-to-P Transfer Clauses. Where Customer is a Processor acting on behalf of a Controller and a data exporter of Personal Data and Ketch is a Processor and data importer in respect of that Personal Data, the parties shall comply with the terms of the EU/UK P-to-P Transfer Clauses, subject to the additional terms in sections 1 and 2 of Schedule 1.The signing of this DPA, an agreement referencing this DPA, or an Order Form under an agreement referencing this DPA by any party shall be treated as the signing of the Standard Contractual Clauses by such party.

12.5. Impact of local laws. As of the Effective Date, Ketch has no reason to believe that the laws and practices in any third country of destination applicable to its Processing of the Personal Data, including any requirements to disclose Personal Data or measures authorising access by a Public Authority, prevent Ketch from fulfilling its obligations under this DPA. If Ketch reasonably believes that any existing or future enacted or enforceable laws and practices in the third country of destination applicable to its Processing of the Personal Data ("Local Laws") prevent it from fulfilling its obligations under this DPA, it shall promptly notify Customer. In such a case, Ketch shall use reasonable efforts to make available to the affected Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to facilitate compliance with the Local Laws without unreasonably burdening Customer. If Ketch is unable to make available such change promptly, Customer may terminate the applicable Order Form(s) and suspend the transfer of Personal Data in respect only to those Services which cannot be provided by Ketch in accordance with the Local Laws by providing written notice in accordance with the “Notices” section of the Agreement. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination for such terminated Services.

‍List of Schedules 
‍Schedule 1: Transfer Mechanisms for European Data Transfers
Schedule 2: Description of Processing/Transfer
Schedule 3: Ketch Technical And Organization Security Measures

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SCHEDULE 1 - TRANSFER MECHANISMS FOR EUROPEAN AND UK DATA TRANSFERS

1. STANDARD CONTRACTUAL CLAUSES OPERATIVE PROVISIONS AND ADDITIONAL TERMS. For the purposes of the EU/UK C-to-P Transfer Clauses and the EU/UK P-to-P Transfer Clauses, Customer is the data exporter and Ketch is the data importer and the parties agree to the following. Where this section 1 does not explicitly mention EU/UK C-to-P Transfer Clauses or EU/UK P-to-P Transfer Clauses it applies to both of them.

1.1. Reference to the Standard Contractual Clauses. The relevant provisions contained in the Standard Contractual Clauses are incorporated by reference and are an integral part of this DPA. The information required for the purposes of the Appendix to the Standard Contractual Clauses are set out in Schedules 2 and 3.

1.2. Docking clause. The option under clause 7 shall not apply.

1.3. Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Ketch for the Processing of Personal Data. Any additional or alternate instructions must be consistent with the terms of this DPA and the Agreement. For the purposes of clause 8.1(a), the instructions by Customer to Process Personal Data are set out in section 2.3 of this DPA and include onward transfers to a third party located outside Europe for the purpose of the performance of the Services.

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

1.5. Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the technical and organisational measures Ketch employs meet Customer’s requirements and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of its Personal Data as well as the risks to individuals) the security measures and policies implemented and maintained by Ketch provide a level of security appropriate to the risk with respect to its Personal Data. For the purposes of clause 8.6(c), personal data breaches will be handled in accordance with section 7 (Customer Data Incident Management and Notification) of this DPA.

1.6. Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with section 6.2 of this DPA.

1.7. General authorisation for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Ketch has Customer’s general authorisation to engage Sub-processors in accordance with section 5 of this DPA. Ketch shall make available to Customer the current list of Sub-processors in accordance with section 5.2 of this DPA. Where Ketch enters into the EU/UK P-to-P Transfer Clauses with a Sub-processor in connection with the provision of the Services, Customer hereby grants Ketch and Ketch’s Affiliates authority to provide a general authorisation on Controller's behalf for the engagement of sub-processors by Sub-processors engaged in the provision of the Services, as well as decision making and approval authority for the addition or replacement of any such sub-processors.

1.8. Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Ketch may engage new Sub-processors as described in sections 5.2 and 5.3 of this DPA. Ketch shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5.2 of this DPA.

1.9. Complaints - Redress. For the purposes of clause 11, and subject to section 3 of this DPA, Ketch shall inform data subjects on its website of a contact point authorised to handle complaints. Ketch shall inform Customer if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data and shall without undue delay communicate the complaint or dispute to Customer. Ketch shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer). The option under clause 11 shall not apply.

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

1.11. Supervision. Clause 13 shall apply as follows:

1.11.1. Where Customer is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by Customer with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.

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

1.11.3. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the Data Protection Commission of Ireland shall act as competent supervisory authority.

1.11.4. Where Customer is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as competent supervisory authority.

1.11.5. Where Customer is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

1.12. Notification of Government Access Requests. For the purposes of clause 15(1)(a), Ketch shall notify Customer (only) and not the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying the Data Subject as necessary.

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

1.14. Choice of forum and jurisdiction. The courts under clause 18 shall be those designated in the applicable section of the Agreement. If the Agreement does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this Agreement, the parties agree that the courts of either (i) Ireland; or (ii) where the Agreement designates the United Kingdom as having exclusive jurisdiction, the United Kingdom, shall have exclusive jurisdiction to resolve any dispute arising from the Standard Contractual Clauses. For Data Subjects habitually resident in Switzerland, the courts of Switzerland are an alternative place of jurisdiction in respect of disputes.

1.15. Appendix. The Appendix shall be completed as follows:

1.15.1. The contents of section 1 of Schedule 2 shall form Annex I.A to the Standard Contractual Clauses

1.15.2. The contents of sections 2 to 9 of Schedule 2 shall form Annex I.B to the Standard Contractual Clauses

1.15.3. The contents of section 10 of Schedule 2 shall form Annex I.C to the Standard Contractual Clauses

1.15.4. The contents of section 11 of Schedule 2 to this Exhibit shall form Annex II to the Standard Contractual Clauses.

1.16. Data Exports from the United Kingdom and Switzerland under the Standard Contractual Clauses. In case of any transfers of Personal Data from the United Kingdom and/or transfers of Personal Data from Switzerland subject exclusively to the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws”), (i) general and specific references in the Standard Contractual Clauses to GDPR or EU or Member State Law shall have the same meaning as the equivalent reference in the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws”) or Swiss Data Protection Laws, as applicable; and (ii) any other obligation in the Standard Contractual Clauses determined by the Member State in which the data exporter or Data Subject is established shall refer to an obligation under UK Data Protection Laws or Swiss Data Protection Laws, as applicable. In respect of data transfers governed by UK Data Protection Laws, the Standard Contractual Clauses as amended by the International Data Transfer Addendum to the European Commission’s Standard Contractual Clauses apply to the transfer of information outside of the UK. In respect of data transfers governed by Swiss Data Protection Laws, the Standard Contractual Clauses also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity.

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

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SCHEDULE 2 - DESCRIPTION OF PROCESSING/TRANSFER

1. LIST OF PARTIES

Data exporter(s): Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union

‍Name: Customer, as defined in the Agreement.

Address: Customer’s address, as set out in the Order Form

Contact person’s name, position and contact details: Customer’s contact details, as set out in the Order Form and/or as set out in the Customer’s Ketch account

Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement.

Signature and date: As addressed in Section 12.4 of the DPA

Role: For the purposes of the EU/UK C-to-P Transfer Clauses Customer is a Controller. For the purposes of the EU/UK P-to-P Transfer Clauses Customer is a Processor.



Data importer(s): Identity and contact details of the data importer(s), including any contact person with responsibility for data protection 

‍Name: Ketch Kloud, Inc.

Address: 548 Market Street PMB 62319, San Francisco, California, USA 94104-5401

Contact person’s name, position and contact details: Jack Carvel, DPO,  dpo@ketch.com

Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement.

Signature and date: As addressed in Section 12.4 of the DPA

Role: Processor


2. CATEGORIES OF DATA SUBJECTS WHOSE PERSONAL DATA IS TRANSFERRED

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

2.1. Prospects, customers, potential customers, business partners and vendors of Customer (who are natural persons)

2.2. Employees or contact persons of Customer’s prospects, customers, business partners and vendors

2.3. Employees, agents, advisors, freelancers of Customer (who are natural persons)

2.4. Customer’s users authorized by Customer to use the Services

3. CATEGORIES OF PERSONAL DATA TRANSFERRED

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

3.1. First and last name

3.2. Title

3.3. Position

3.4. Employer

3.5. Contact information (company, email, phone, physical business address)

3.6. ID data

3.7. Localisation data


4. SENSITIVE DATA TRANSFERRED (IF APPLICABLE)

‍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:

‍Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

5. FREQUENCY OF THE TRANSFER

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis): Continuous basis depending on the use of the Services by Customer.

6. NATURE OF THE PROCESSING

The nature of the Processing is the performance of the Services pursuant to the Agreement.

7. PURPOSE OF PROCESSING, THE DATA TRANSFER AND FURTHER PROCESSING

Ketch will Process Personal Data as necessary to perform the Services pursuant to the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA.

8. DURATION OF PROCESSING

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

‍Subject to section 9 of the DPA, Ketch will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

9. SUB-PROCESSOR TRANSFERS

‍For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:As per 7 above, the Sub-processor will Process Personal Data as necessary to perform the Services pursuant to the Agreement. Subject to section 9 of this DPA, the Sub-processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

10. COMPETENT SUPERVISORY AUTHORITY

‍Identify the competent supervisory authority/ies in accordance with clause 13:

10.1. 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 shall act as competent supervisory authority.

10.2. 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 shall act as the competent supervisory authority.

10.3. 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 Data Protection Commission of Ireland shall act as the competent supervisory authority.

10.4. Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as the competent supervisory authority.

10.5. Where the data exporter is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

11. TECHNICAL AND ORGANISATIONAL MEASURES

Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in Schedule 3. Data Importer will not materially decrease the overall security of the Services during a subscription term. 
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‍SCHEDULE 3 - KETCH TECHNICAL AND ORGANIZATION SECURITY MEASURES