Data processing addendum

1. 1. Definitions

   1. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

   2. “Data Protection Laws” means all applicable data protection and data privacy laws and regulations, including but not limited to the EU General Data Protection Regulation (GDPR), Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), and the California Consumer Privacy Act (CCPA).

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

   4. “Personal Data” shall have the meaning ascribed to “personally identifiable information,” “personal information,” “personal data,” or equivalent terms as such terms are defined under the Data Protection Laws, in each case that is Customer Data.

   5. “Personal Data Incident” shall have the meaning assigned by Data Protection Laws to the terms “security incident,” “security breach” or “personal data breach” and shall include any situation in which Ketch becomes aware that Personal Data, which is transmitted, stored or otherwise Processed by Ketch or its Sub-processors, has been or is likely to have been accessed, disclosed, altered, lost, destroyed or used by unauthorized persons, in an unauthorized manner.

   6. “Processing” means any operation or set of operations that is performed on 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.

   7. “Processor” means the entity that Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA.

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

2. 2. Obligations

   1. Roles of the Parties. The parties acknowledge and agree that regarding the Processing of Personal Data under the Terms, Customer is the Controller, Ketch is the Processor and Ketch will engage Sub-processors pursuant to Section 3 below.

   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, including any applicable requirement to provide notice to Data Subjects of the use of Ketch as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. 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 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 Data Protection Laws. Customer acknowledges that in no event will the Services constitute legal advice from Ketch and that, as between Customer and Ketch, Customer bears all liability for its implementation and use of the Services, except as otherwise provided in this DPA or the Terms.

   3. Ketch’s Processing of Personal Data. Ketch shall treat Personal Data as confidential and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions unless Processing is required by Data Protection Laws. Customer instructs Ketch (and authorizes Ketch to instruct each Sub-processor) to Process Personal Data for the following purposes: (i) Processing in accordance with the Terms; (ii) Processing initiated by Customer’s users in their use of the Services; or (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 Terms.

   4. Details of the Processing. The subject matter of Processing of Personal Data by Ketch is the performance of the Services pursuant to the Terms. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data Processed and the categories of Data Subjects for whom Personal Data is Processed are set forth in Schedule 1.

   5. 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.

   6. Security Controls. Ketch shall implement appropriate technical and organizational measures to maintain the security, confidentiality, and integrity of Personal Data, including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data.

   7. Data Subject Requests. Ketch shall, to the extent legally permitted, promptly notify Customer of any requests from Data Subjects seeking to exercise their rights under Data Protection Laws and, taking into account the nature of the Processing, assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, to assist with Customer’s obligation to respond to such requests. To the extent that Personal Data is not accessible to Customer, in its use of the Services, Ketch shall, where legally permitted and upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such requests if responses to such requests are required by Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Ketch’s provision of such assistance.

   8. Data Protection Impact Assessment. Ketch shall, upon Customer’s written request and taking into account the nature of processing and information available, provide reasonable assistance to Customer in connection with obligations under Article 36 of the GDPR or equivalent provisions under Data Protection Laws.

   9. Return or Deletion of Personal 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. Data Processor Point of Contact. If Customer has any questions related to Processing of Personal Data by Ketch, Customer may send such questions to the following email: privacy@ketch.com.

3. 3. Sub-Processors

   1. Appointment of Sub-processors. Customer acknowledges and agrees that Ketch may engage Sub-processors in connection with provision of the Services. Ketch shall enter into a written agreement with any engaged Sub-processor that contains data protection obligations no less protective than those contained in this DPA with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Sub-processor.

   2. List of Current Sub-processors and Notification of New Sub-Processors. A current list of Sub-processors for the Services, including the identities of those Sub-processors and their country of location, is located here. Customer may receive notifications of new Sub-processors by emailing privacy@ketch.com with the subject “Subprocessor Subscribe.

   3. Objection to New Sub-processors. Customer may object to Ketch’s use of a new Sub-processor by notifying Ketch in writing within ten (10) business days after receipt of Ketch’s communication advising of the new Sub-processor. In the event Customer reasonably objects to the use of a new Sub-processor as permitted in the prior 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. If Ketch is unable to make available such change within a reasonable period, which shall not exceed ninety (90) days, Customer may terminate the applicable Order Form with respect only to those Services which cannot be provided by Ketch without the use of the objected-to new Sub-processor by providing written notice to Ketch. Ketch will refund Customer any prepaid fees covering the remainder of the term of such Order Form following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.

   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, except as otherwise set forth in the Terms.

4. 4. Personal Data Incidents

   1. Ketch shall notify Customer without undue delay after becoming aware of a Personal Data Incident. Ketch shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps necessary and reasonable to remediate the cause of such a Personal Data Incident to the extent the remediation is within Ketch’s reasonable control.

5. 5. International Data Transfers

   1. Personal Data Transfers. Customer agrees to allow transfer of Personal Data outside the country from which it was originally collected provided that such transfer is required in connection with the provision of Services under the Terms and such transfers take place in accordance with Data Protection Laws, including, without limitation, completing any prior assessments required by Data Protection Laws.

   2. European Specific Provisions. Where Ketch transfers Personal Data collected in the European Economic Area to a country outside of the European Economic Area and without an adequacy finding under Article 45 of the GDPR, at least one of the transfer mechanisms listed below shall apply:

      1. Binding Corporate Rules. To the extent Ketch has adopted Binding Corporate Rules, it shall maintain such rules and promptly notify Customer in the event that the rules are no longer a valid transfer mechanism between Ketch and Customer.

      2. EU Standard Contractual Clauses (“SCCs”). The EU Standard Contractual Clauses pursuant to 2010/87/EU (the European Commission’s decision 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010) 593)(Schedule 2) are hereby incorporated in their entirety into this DPA and, to the extent applicable, Ketch shall ensure that its Sub-processors comply with the obligations of a data importer (as defined in the SCCs).  To the extent there is any conflict between this DPA and the SCCs, the terms of the SCCs shall prevail.

6. 6. Certifications and Audits

   1. Upon written request, Ketch, to the extent that it is acting as a Processor to Customer, shall make available to Customer that is not a competitor of Ketch (or Customer’s independent, third-party auditor that is not a competitor of Ketch) information regarding Ketch’s compliance with the obligations set forth under Data Protection Laws, provided that Ketch shall have no obligation to provide commercially confidential information.  On no more than an annual basis, Ketch shall, to the extent that it is acting as a Processor to Customer, following a request by Customer and at Customer’s expense, further allow for and contribute to audits and inspections by Customer or its authorized third-party auditor that shall not be a competitor of Ketch.  The scope, timing and duration of any such audits, including conditions of confidentiality, shall be mutually agreed upon by Ketch and Customer prior to initiation.  Customer shall promptly notify Ketch with information regarding non-compliance discovered during the course of an audit, and Ketch shall use commercially reasonable efforts to address any confirmed non-compliance.

7. 7. Liability

   1. Liability arising out of or related to Processing of Personal Data in accordance with this DPA (whether in contract, tort or under any other theory of liability) is subject to any limitations of liability provision(s) set forth in the Terms.

List of Schedules

Schedule 1: Details of the Processing
Schedule 2: Standard Contractual Clauses

Nature and Purpose of Processing

Ketch will Process Personal Data pursuant to the Agreement, as further specified in the Documentation and as further instructed by Customer in its use of the Services.

Duration of Processing

Ketch will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Data Subjects

Categories of Personal Data

Definitions

1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

2. 'the data exporter' means the controller who transfers the personal data;

3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Details of the transfer

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Obligations of the data exporter

1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

5. that it will ensure compliance with the security measures;

6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

10. that it will ensure compliance with Clause 4(a) to (i).

Obligations of the data exporter

1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

4. that it will promptly notify the data exporter about:

   1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

   2. any accidental or unauthorised access, and

   3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;

10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
   The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

   1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

   2. to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Governing Law

Variation of the contract

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Data exporter

Data importer

Data subjects

Categories of data

Processing operations