The Customer, acting on its own behalf and as agent for each Customer Affiliate, agreeing to this Data Processing Addendum (this “DPA”) and WizRocket Inc., a Delaware corporation (“CleverTap”), acting on its own behalf and as agent for each CleverTap Affiliate, have agreed to the online version for Services which includes the CleverTap Terms of Service (collectively, the “Online Agreement”).

Capitalized terms not otherwise defined herein shall have the meaning given to them in the Online Agreement. Except as modified below, the terms of the Online Agreement shall remain in full force and effect.

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

Definitions

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

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

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

Contracted Processor” means CleverTap or a Subprocessor.

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

Customer Group Member” means Customer or any Customer Affiliate.

Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Online Agreement.

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

EEA” means the European Economic Area.

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

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

Restricted Transfer” means:

a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or

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

in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under section 12 below. For the avoidance of doubt: (a) without limitation to the generality of the foregoing, the parties to this DPA intend that transfers of Personal Data from the UK to the EEA or from the EEA to the UK, following any exit by the UK from the European Union shall be Restricted Transfers for such time and to such extent that such transfers would be prohibited by Data Protection Laws of the UK or EU Data Protection Laws (as the case may be) in the absence of the Standard Contractual Clauses to be established under section 12; and (b) where a transfer of Personal Data is of a type authorised by Data Protection Laws in the exporting country, for example in the case of transfers from within the European Union to a country (such as Switzerland) or scheme (such as the US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer.

Services” means the services and other activities to be supplied to or carried out by or on behalf of CleverTap for Customer Group Members pursuant to the Online Agreement.

Standard Contractual Clauses” means the contractual clauses set out in Annex 2, amended as indicated (in square brackets and italics) in that Annex and under section 13.4.

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

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

The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.

Authority.

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

Processing of Customer Personal Data.

CleverTap and each CleverTap Affiliate shall:

comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and

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

Each Customer Group Member:

instructs CleverTap and each CleverTap Affiliate (and authorises CleverTap and each CleverTap Affiliate to instruct each Subprocessor) to:

Process Customer Personal Data; and

in particular, transfer Customer Personal Data to any country or territory,

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

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

warrant and represents that it shall Process Personal Data in accordance with the requirements of Data Protection Laws. 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.

Annex 1 to this DPA sets out certain information regarding the Contracted Processors’ Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to CleverTap from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this DPA.

CleverTap and CleverTap Affiliate Personnel.

CleverTap and each CleverTap Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Online Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

Security.

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

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

Subprocessing.

Each Customer Group Member authorises CleverTap and each CleverTap Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Online Agreement.

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

CleverTap shall give Customer prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within two weeks of receipt of that notice, Customer notifies CleverTap in writing of any objections (on reasonable grounds) to the proposed appointment, CleverTap shall work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor.

With respect to each Subprocessor, CleverTap or the relevant CleverTap Affiliate shall:

before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by the Online Agreement;

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

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

Data Subject Rights.

CleverTap shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject to access, correct or delete that person’s Personal Data or if a Data Subject objects to the Processing thereof (“Data Subject Request”). CleverTap shall not respond to a Data Subject Request without Customer’s prior written consent except to confirm that such request relates to Customer to which Customer hereby agrees. To the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, CleverTap shall upon Customer’s request provide commercially reasonable assistance to facilitate such Data Subject Request to the extent CleverTap is legally permitted to do so and provided that such Data Subject Request is exercised in accordance with Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from CleverTap’s provision of such assistance.

With effect from May 25, 2018, the following wording will replace section 7.1 above in its entirety: CleverTap shall, to the extent legally permitted, promptly notify Customer if CleverTap receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, CleverTap 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. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, CleverTap shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent CleverTap is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from CleverTap’s provision of such assistance.

Personal Data Breach.

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

CleverTap shall cooperate with Customer and each Customer Group Member and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

Data Protection Impact Assessment and Prior Consultation.

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

Deletion or Return of Customer Personal Data.

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

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

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

CleverTap shall provide written certification to Customer that it and each CleverTap Affiliate has fully complied with this section 10 within thirty days of Customer’s request.

Third-Party Certifications and Audits.

CleverTap shall, in accordance with Data Protection Laws, make available to the Customer such information in CleverTap’s possession or control as the Customer may reasonably request with a view to demonstrating CleverTap’s compliance with the obligations of data processors under Data Protection Laws in relation to its processing of Personal Data.

The Customer may exercise its right of audit under Data Protection Laws in relation to Personal Data, through CleverTap providing (a) an audit report not older than eighteen (18) months, prepared by an independent external auditor demonstrating that CleverTap’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard and (b) additional information in CleverTap’s possession or control to an EU supervisory authority when it requests or requires additional information in relation to the processing of Personal Data carried out by CleverTap under this DPA.

Restricted Transfers.

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

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

the data exporter becoming a party to them;

the data importer becoming a party to them; and

commencement of the relevant Restricted Transfer.

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

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

General Terms.

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

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

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

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

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

Customer may:

by at least 60 days’ written notice to CleverTap from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and

propose any other variations to this DPA which Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.

If Customer gives notice under section 13.4.1:

CleverTap and each CleverTap Affiliate shall promptly cooperate; and

Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by CleverTap to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1.

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

Each party’s (including affiliates) liability, taken together in the aggregate, arising out of or related to this DPA (including the Standard Contractual Clauses), and all DPAs between Customer and CleverTap, whether in contract, tort or under any other theory of liability, is subject to the applicable “Limitation of Liability” section or similarly titled section of the Online Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Online Agreement and all DPAs together. For the avoidance of doubt, CleverTap’s (including its affiliates) total liability for all claims from the Customer and all of its affiliates arising out of or related to the Online Agreement and each DPA shall apply in the aggregate for all claims under both the Online Agreement and all DPAs established under the Online Agreement, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any affiliate that is a contractual party to any such DPA.

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

ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA

Duration of the Processing of Customer Personal Data

Subject to the DPA, the duration of the Processing of the Customer Personal Data is set out in the Online Agreement, unless otherwise agreed upon in writing.

Nature and Purpose of the Processing of Customer Personal Data

CleverTap will Process Customer Personal Data as necessary to perform the applicable services pursuant to the Online Agreement, and as further instructed by Customer in its use of CleverTap’s services.

Types of Customer Personal Data to be Processed

Customer may submit Personal Data to the CleverTap 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:

First and last name

Title

Employer

Position

Contact information (company, email, phone, address)

Identification data

Personal life data

Online properties data

Customer, its online visitors and/or other partners may also upload content to Customer’s online properties which may include Personal data and special categories of data, the extent of which is determined and controlled by Customer in its sole discretion.

Categories of Data Subjects to whom the Customer Personal Data Relates

Customer may submit Personal Data to the CleverTap 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:

Prospects, customers, resellers, referrers, business partners and vendors of Customer (who are natural persons)

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

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

Customer’s users authorized by Customer to use the CleverTap services

ANNEX 2: STANDARD CONTRACTUAL CLAUSES

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

Name of the data exporting organisation: Customer (the data exporter)

And

Name of the data importing organisation: WizRocket Inc. (the data importer)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘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;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘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;

(d) ‘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;

(e) ‘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;

(f) ‘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.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

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.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) 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;

(b) 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;

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

(d) 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;

(e) that it will ensure compliance with the security measures;

(f) 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;

(g) 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;

(h) 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;

(i) 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

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

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) 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;

(b) 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;

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

(d) that it will promptly notify the data exporter about:

(i) 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,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) 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;

(f) 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;

(g) 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;

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

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

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

Clause 6

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 of 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.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) 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.

Clause 8

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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

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.

Clause 12

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.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

Data exporter is (i) the Customer that has agreed to Standard Contractual Clauses as a Data Exporter and, (ii) all affiliates of Customer established within the European Economic Area (EEA), which have purchased services from CleverTap.

Data importer

The data importer is CleverTap, which processes Personal Data upon the instruction of the data exporter in accordance with the terms of the agreement between the data exporter and CleverTap.

Data subjects

The personal data transferred concern the following categories of data subjects (please specify):

The data exporter may submit Personal Data to CleverTap and its affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

Prospects, customers, resellers, referrers, business partners and vendors of data exporter (who are natural persons)

Employees or contact persons of data exporter’s prospects, customers, business partners and vendors

Employees, agents, advisors, and freelancers of data exporter (who are natural persons)

Data exporter’s users authorized by data exporter to use the CleverTap services

Categories of data

The personal data transferred concern the following categories of data (please specify):

Data exporter may submit Personal Data to CleverTap 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:

First and last name

Title

Employer

Position

Contact information (company, email, phone, address)

Identification data

Personal life data

Online properties data

Special categories of data (if appropriate)

The personal data transferred concern the following special categories of data (please specify):

Data exporter may submit special categories of data to the CleverTap 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, trade-union membership, and the processing of data concerning health or sex life.

Processing operations

The personal data transferred will be subject to the following basic processing activities:

The objective of the processing of Personal Data by CleverTap is to provide the CleverTap services, pursuant to the Online Agreement.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

A. Data importer/sub-processor has implemented and shall maintain a security program in accordance with industry standards.

B. More specifically, data importer/subprocessor’s security program shall include:

Access Control of Processing Areas

CleverTap hosts its Service with outsourced cloud infrastructure provider, Amazon Web Services. Additionally, CleverTap maintains contractual relationships with such vendors in order to provide the Services in accordance with the DPA. CleverTap relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by such vendors to implement suitable measures in order to prevent unauthorized persons from gaining access to the data processing equipment (namely telephones, database and application servers and related hardware) where the personal data are processed or used..

Access Control to Data Processing Systems

Data importer/sub-processor implements suitable measures to prevent their data processing systems from being used by unauthorized persons, including:

1. use best in class TES encryption for data in motion and use adequate encryption technologies for data at rest

2. identification of the terminal and/or the terminal user to the data importer/sub-processor and processing systems;

3. automatic temporary lock-out of user terminal if left idle, identification and password required to reopen;

4. automatic temporary lock-out of the user ID when several erroneous passwords are entered, log file of events, monitoring of break-in-attempts (alerts); and

5. all access to data content is logged, monitored, and tracked

Access Control to Use Specific Areas of Data Processing Systems

Data importer/sub-processor commits that the persons entitled to use their data processing system are only able to access the data within the scope and to the extent covered by their respective access permission (authorization) and that personal data cannot be read, copied or modified or removed without authorization. This shall be accomplished by various measures including:

1. employee policies and training in respect of each employee’s access rights to the personal data;

2. allocation of individual terminals and /or terminal user, and identification characteristics exclusive to specific functions;

3. monitoring capability in respect of individuals who delete, add or modify the personal data;

4. release of data only to authorized persons, including allocation of differentiated access rights and roles;

5. use of adequate encryption technologies; and

6. control of files, controlled and documented destruction of data.

Availability Control

Data importer/sub-processor implements suitable measures to ensure that personal data is protected from accidental destruction or loss, including:

infrastructure redundancy; and backup is stored at an alternative site and available for restore in case of failure of the primary system.

Transmission Control

Data importer/sub-processor implements suitable measures to prevent the personal data from being read, copied, altered or deleted by unauthorized parties during the transmission thereof or during the transport of the data media. This is accomplished by various measures including:

1. use of adequate firewall, VPN and encryption technologies to protect the gateways and pipelines through which the data travels;

2. certain highly confidential employee data (e.g., personally identifiable information such as National ID numbers, credit or debit card numbers) is also encrypted within the system; and

3. providing user alert upon incomplete transfer of data (end to end check).

Input Control

Data importer/sub-processor implements suitable input control measures, including:

1. an authorization policy for the input, reading, alteration and deletion of data;

2. authentication of the authorized personnel;

3. protective measures for the data input into memory, as well as for the reading, alteration and deletion of stored data;

4. utilization of unique authentication credentials or codes (passwords);

5. providing that entries to data processing facilities (the rooms housing the computer hardware and related equipment) are kept locked;

6. automatic log-off of user ID’s that have not been used for a substantial period of time;

7. proof established within data importer/sub-processor’s organization of the input authorization; and

8. electronic recording of entries.

Separation of Processing for Different Purposes

Data importer/sub-processor implements suitable measures to ensure that data collected for different purposes can be processed separately, including:

1. access to data is separated through application security for the appropriate users;

2. modules within the data importer/sub-processor’s data base separate which data is used for which purpose, i.e. by functionality and function;

3. at the database level, data is stored in different normalized tables, separated per module, per Controller Customer or function they support; and

4. interfaces, batch processes and reports are designed for only specific purposes and functions, so data collected for specific purposes is processed separately.

Documentation

Data importer/sub-processor will keep documentation of technical and organizational measures in case of audits and for the conservation of evidence. Data importer/sub-processor shall take reasonable steps to ensure that persons employed by it, and other persons at the place of work concerned, are aware of and comply with the technical and organizational measures set forth in this Appendix 2.

Monitoring

Data importer/sub-processor shall implement suitable measures to monitor access restrictions to data importer/sub-processor’s system administrators and to ensure that they act in accordance with instructions received. This is accomplished by various measures including:

1. individual appointment of system administrators;

2. adoption of suitable measures to register system administrators’ access logs to the infrastructure and keep them secure, accurate and unmodified for at least six months;

3. yearly audits of system administrators’ activity to assess compliance with assigned tasks, the instructions received by the data importer/sub-processor and applicable laws;

4. keeping an updated list with system administrators’ identification details (e.g. name, surname, function or organizational area) and tasks assigned and providing it promptly to data exporter upon request.

4,000+

55 Billion

1 Billion

10 Billion