Kapiche Data Protection Addendum
This Data Protection Addendum (“Addendum”) is entered into by and between Kapiche Pty Ltd, an Australian proprietary limited company (“Kapiche”), and Customer effective as of the later date of each party’s signature below. This Addendum applies to Kapiche’s Processing of Customer Personal Data under the agreement executed between Kapiche and Customer for Kapiche’s provision of the Services (the “Agreement”).
For purposes of this Addendum, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this Addendum have the meanings given in the Agreement.
2.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
2.2. “CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.
2.3. “Customer Personal Data” means any Customer Data (as defined in the Agreement) that is Personal Data. For purposes of this Addendum, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom Kapiche has a direct business relationship.
2.4. “Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data, including, where applicable, EU Data Protection Law and the CCPA.
2.5. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
2.6. “EU Data Protection Law” means European Union Regulation 2016/679 (“GDPR”) and any national legislation implementing GDPR, as amended from time to time.
2.7. “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
2.8. “Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Data Protection Laws.
2.9. “Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data being Processed by Kapiche. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.
2.10. “Subprocessor” means any third party authorized by Kapiche or its Affiliates to Process any Customer Personal Data.
2.11. “Third Party Subprocessor” means any Subprocessor who is not an Affiliate of Kapiche.
3. General; Termination
3.1. This Addendum forms part of the Agreement and except as expressly set forth in this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum shall govern.
3.2. Any liabilities arising under this Addendum are subject to the limitations of liability in the Agreement.
3.3. This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3.4. This Addendum will automatically terminate upon expiration or termination of the Agreement.
4. Scope of this Addendum
This Addendum applies to Kapiche’s Processing of Customer Personal Data under the Agreement, except that Annex A (EU Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by the CCPA.
5. Role and Scope of the Processing
5.1. Kapiche will Process Customer Data only in accordance with Customer’s instructions. By entering into the Agreement, Customer instructs Kapiche to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by Kapiche as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes Kapiche to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.
6.1. Customer specifically authorizes Kapiche to use its Affiliates as Subprocessors, and generally authorizes Kapiche to engage Third Party Subprocessors to Process Customer Personal Data. Kapiche:
6.1.1. shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and 6.1.2. remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause Kapiche to breach any of its obligations under this Addendum.
6.2. Annex C lists Kapiche’s Subprocessors, and may be updated by Kapiche from time to time in accordance with this Addendum.
6.3. When any new Third Party Subprocessor is engaged, Kapiche will notify Customer of the engagement, which notice may be given via a message through Customer’s Kapiche Site. Kapiche will give such notice at least ten (10) calendar days before the new Subprocessor Processes any Customer Personal Data, except that if Kapiche reasonably believes engaging a new Subprocessor on an expedited basis is necessary to protect the confidentiality, integrity or availability of the Customer Personal Data or avoid material disruption to the Services, Kapiche will give such notice as soon as reasonably practicable. If, within five (5) calendar days after such notice, Customer notifies Kapiche in writing that Customer objects to Kapiche’s appointment of a new Third Party Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith and whether they can be resolved. If the parties are not able to mutually agree to a resolution of such concerns, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience.
7.1. Kapiche shall implement and maintain technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with Kapiche’s security standards referenced in the Agreement (“Security Measures”).
7.2. Customer is responsible for reviewing the information made available by Kapiche relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Kapiche’s obligations as compared to those reflected in such terms as of the Effective Date).
7.3. Upon becoming aware of a confirmed Security Incident, Kapiche shall notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of Kapiche’s legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps Kapiche recommends Customer take to address the Security Incident. Without prejudice to Kapiche’s obligations under this Section 7.c., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. Kapiche’s notification of or response to a Security Incident under this Section 7.c. will not be construed as an acknowledgement by Kapiche of any fault or liability with respect to the Security Incident.
7.4. Customer agrees that, without limitation of Kapiche’s obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
8. Data Subject Requests
Kapiche shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If Kapiche receives a request from a Data Subject in relation to their Customer Personal Data, Kapiche will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
9. Return or Deletion of Data
9.1. Kapiche shall, within ninety (90) days after request by Customer following the termination or expiration of the Agreement, delete all of the Customer Personal Data from Kapiche’s systems.
9.2. Notwithstanding the foregoing, Customer understands that Kapiche may retain Customer Personal Data if required by law, which data will remain subject to the requirements of this Addendum.
Annex A - EU Annex
1. Definitions; Processing of Data
1.1. Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Kapiche Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
1.2. Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Kapiche’s provision of the Services; (b) the duration of the Processing is from Kapiche’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Kapiche in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the Agreement.
1.4. Kapiche’s Compliance with Instructions. Kapiche will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case Kapiche will notify Customer (unless that law prohibits Kapiche from doing so).
2. Data Security
2.1. Kapiche Security Measures, Controls and Assistance
2.1.1. Kapiche will (taking into account the nature of the Processing of Customer Personal Data and the information available to Kapiche) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.
2.1.2. Kapiche will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Kapiche without delay and instruct their employee to contact Kapiche directly via email@example.com or such other email address as directed at the time.
2.2. Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Kapiche’s Processing of Customer Personal Data, Customer will exercise such audit right, and Kapiche will fulfill its corresponding obligations, as follows:
2.2.1. Kapiche shall make available to Customer relevant information regarding Kapiche’s Processing of Customer Personal Data under this Addendum in the form of audit reports (“Third Party Reports”).
2.2.2. Not more than once per calendar year and at Customer’s expense, Customer may audit Kapiche’s Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. Kapiche will provide written responses to the extent the requested information is necessary to confirm Kapiche’s compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Kapiche confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Kapiche under this Section 2.b. constitutes Kapiche’s Confidential Information under the Agreement.
2.2.3. If a third party is to conduct an audit under this Section 2.b., Kapiche may object to the auditor if the auditor is, in Kapiche’s reasonable opinion, not independent, a competitor of Kapiche or otherwise unqualified. Such objection by Kapiche will require Customer to appoint another auditor or conduct the audit itself.
2.2.4. Customer will promptly notify Kapiche of any non-compliance discovered during the course of an audit and provide Kapiche any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that Kapiche’s Processing of Customer Personal Data complies with this Addendum.
2.2.5. Customer shall reimburse Kapiche for any time expended by Kapiche or its Subprocessors in connection with any audits under this Section 2.b. at Kapiche’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Addendum shall be construed to require Kapiche to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require Kapiche to breach any duties of confidentiality.
3. Impact Assessments and Consultations
Kapiche may (taking into account the nature of the Processing and the information available to Kapiche) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Kapiche’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.
4. Data Transfers
4.1. Data Processing Facilities. Kapiche may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Kapiche or its Subprocessors maintain facilities. Subject to Kapiche’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.
4.2. Privacy Shield. To the extent that Kapiche Processes any Customer Personal Data of individuals in the EU or Switzerland in the United States, then Kapiche shall protect such Customer Personal Data in accordance with the Privacy Shield Principles and Supplemental Principles of the EU-U.S. and Swiss Privacy Shield Frameworks (“Privacy Shield”). If Kapiche is unable to comply with this requirement, Kapiche shall inform Customer.
4.3. Standard Contractual Clauses. If Customer is established in the EU and transfers Customer Personal Data out of the EU to Kapiche in a country not deemed by the European Commission to have adequate data protection, and the Privacy Shield ceases to be a basis by which Customer may lawfully make such transfer to Kapiche under Chapter V of the GDPR, and no lawful alternative basis for such transfer applies, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
4.3.1. for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Kapiche will act as the data importer;
4.3.2. for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;
4.3.3. for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
4.3.4. upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
4.3.5. the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
4.3.6. Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Kapiche of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
4.3.7. certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and:>/
4.3.8. the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.
Annex B - California Annex
1. For purposes of this Annex B, the terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA.
2. With respect to Customer Personal Data, Kapiche is a service provider under the CCPA.
3. Kapiche will not (a) sell Customer Personal Data; (b) retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Kapiche and Customer.
4. The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 5 of this Addendum is integral to and encompassed by Kapiche’s provision of the Services and the direct business relationship between the parties.
5. Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that Kapiche’s access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.
Annex C – List of Sub-Processors Annex
Amazon Web Services, Inc.