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Data Processing Agreement

This Data Processing Agreement (“DPA”) is an addendum to the Customer Terms of Service (“Agreement”) between Kisi Inc. (“Kisi”) and the Customer. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).

This DPA incorporates the terms of the EEA/EU/UK Data Processing Addendum (the “EEA/EU/UK DPA”), reflecting the requirements of the European Union’s General Data Protection Regulation (“GDPR”). A copy of Kisi’s EEA/EU/UK is available on Kisi’s GDPR page. Additionally, for cross-border data transfers, this DPA incorporates the applicable Standard Contractual Clauses (“SCCs”) issued by the European Commission, and, where relevant, the UK Addendum, and are available here. Where applicable, this DPA also addresses the requirements of US State Privacy Laws through Schedule A (U.S. State Privacy Law Addendum).

The parties agree as follows:

Definitions

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

“Authorized Affiliate” means any of Customer Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.

“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term

“Controlled” shall be construed accordingly.

“Controller” means an entity that determines the purposes and means of the processing of Personal Data.

“Customer Data” means any data that Kisi and/or its Affiliates processes on behalf of Customer in the course of providing the Services under the Agreement.

“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

“EU Data Protection Law” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).

“Personal Data” means any Customer Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.

"Personal Information" means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, as defined under applicable US State Privacy Laws.

“Processor” means an entity that processes Personal Data on behalf of the Controller.

“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

“Services” means any product or service provided by Kisi to Customer pursuant to and as more particularly described in the Agreement.

“Sub-processor” means any Processor engaged by Kisi or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any Kisi Affiliate.

"US State Privacy Laws" means the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, and any regulations promulgated thereunder (collectively, "CCPA"); the Colorado Privacy Act of 2021; the Virginia Consumer Data Protection Act of 2021; the Utah Consumer Privacy Act of 2022, as amended; the Connecticut Data Privacy Act of 2022, and any other US state law that may be enacted that adheres to the same or substantially the same requirements of the aforementioned laws in this definition.

Scope and Applicability of this DPA

2.1 This DPA applies where and only to the extent that Kisi processes Personal Data on behalf of the Customer in the course of providing the Services and such Personal Data is subject to: (a) Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom; or (b) US State Privacy Laws where Kisi processes Personal Information of residents of U.S. states subject to such laws. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.

2.2 Role of the Parties. As between Kisi and Customer, Customer is the Controller of Personal Data and Kisi shall process Personal Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent Kisi from using or sharing any data that Kisi would otherwise collect and process independently of Customer's use of the Services.

2.3 Customer Obligations. Customer agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Kisi; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Kisi to process Personal Data and provide the Services pursuant to the Agreement and this DPA.

2.4 Kisi Processing of Personal Data. As a Processor, Kisi shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Customer to the extent they are consistent with the terms of this Agreement and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to Kisi in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and Kisi.

2.5 Nature of the Data. Kisi handles Customer Data provided by Customer. Such Customer Data may contain special categories of data depending on how the Services are used by Customer. The Customer Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer; (ii) to provide customer and technical support to Customer; and (iii) disclosures as required by law or otherwise set forth in the Agreement. Where Kisi processes Personal Information subject to US State Privacy Laws, the terms of Schedule A (U.S. State Privacy Law Addendum) shall apply in addition to the provisions of this DPA.

2.6 Kisi Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Kisi shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, Kisi is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.

Security

4.1 Security Measures. Kisi shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Incidents and to preserve the security and confidentiality of the Personal Data, in accordance with Kisi's security standards.

4.2 Confidentiality of Processing. Kisi shall ensure that any person who is authorized by Kisi to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

4.3 Security Incident Response. Upon becoming aware of a Security Incident, Kisi shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.

4.4 Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that Kisi may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

Security Reports and Audits

5.1 Kisi shall maintain records of its security standards. Upon Customer's written request, Kisi shall provide (on a confidential basis) copies of relevant external ISMS certifications, audit report summaries and/or other documentation reasonably required by Customer to verify Kisi's compliance with this DPA. Kisi shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Customer, including responses to information security and audit questionnaires, that Customer (acting reasonably) considers necessary to confirm Kisi's compliance with this DPA, provided that Customer shall not exercise this right more than once per year.

International Transfers

6.1 Processing Locations. Kisi stores and processes Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland (“EU Data”) and from the United Kingdom (“UK Data”) in data centers located inside and outside the European Union. All other Customer Data may be transferred and processed in the United States and anywhere in the world where Customer, its Affiliates and/or its Sub-processors maintain data processing operations. Kisi shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws. Additional terms applicable to the processing and transfer of EU Data and UK Data are found in Kisi’s EEA/EU/UK DPA. A copy of Kisi’s EEA/EU/UK is available on Kisi’s GDPR page.

6.2 Standard Contractual Clauses for International Transfers. Where the processing of Personal Data involves a transfer of such data from the European Economic Area (EEA), the United Kingdom, or Switzerland to a country that has not received an adequacy decision under applicable Data Protection Laws (including transfers to the United States), the parties agree that such transfers shall be governed by the SCCs approved by the European Commission under Commission Implementing Decision (EU) 2021/914.

These SCCs are incorporated into this DPA by reference and are available at: link. By entering into this DPA, the Data Exporter and the Data Importer, collectively, the “Parties” to the SCC, agree to the SCCs without need for separate execution.

In the event of conflict between the SCCs and this DPA or the Agreement, the SCCs shall prevail solely to the extent required to resolve the conflict in relation to the transfer of Personal Data.

Return or Deletion of Data

7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent Kisi is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data Kisi shall securely isolate and protect from any further processing, except to the extent required by applicable law.

Cooperation

8.1 To the extent that Customer is unable to independently access the relevant Personal Data within the Services, Kisi shall (at Customer's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to Kisi, Kisi shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Kisi is required to respond to such a request, Kisi shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.

8.2 To the extent Kisi is required under Data Protection Law, Kisi shall (at Customer's expense) provide reasonably requested information regarding Kisi's processing of Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

Miscellaneous

9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

9.2 This DPA and the EEA/EU/UK DPA are a part of and incorporated into the Agreement so references to "Agreement" in the Agreement shall include this DPA and the EEA/EU/UK DPA.

9.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.

Schedule A: U.S. State Privacy Law Addendum

This U.S. State Privacy Law Addendum ("State Law Addendum") supplements the terms of the DPA to which it is attached and sets forth certain data privacy rights and obligations in connection with US State Privacy Laws. Capitalized terms used in this State Law Addendum but not otherwise defined herein have the meaning ascribed to them in the DPA or the Agreement.

1. ROLES AND SCOPE

1.1 For purposes of the US State Privacy Laws, Customer is the "Business" or "Controller" and Kisi is the "Service Provider" or "Processor," as applicable.

1.2 This State Law Addendum applies to Kisi's provision of Services to Customer and governs the extent to which Kisi processes Personal Information of residents of U.S. states subject to the US State Privacy Laws in the course of providing the Services.

2. KISI'S RESTRICTIONS AND OBLIGATIONS

Kisi agrees that it shall:

2.1 Process Personal Information only on behalf of and at the direction of Customer, for the purpose of providing the Services and in accordance with the DPA and Agreement.

2.2 Not Sell or Share Personal Information as defined under the CCPA, including for behavioral advertising.

2.3 Not retain, use, or disclose Personal Information (i) for any purpose other than the specific purpose of performing the Services, or (ii) outside of the direct business relationship between Kisi and Customer, except as permitted under applicable US State Privacy Laws.

2.4 Not combine Personal Information received from Customer with Personal Information collected independently or from another source, except to the extent permitted under applicable US State Privacy Laws for purposes such as:

  • (i) creating anonymized or de-identified data for internal analytics or service improvement, provided such data cannot reasonably identify, relate to, describe, or be linked to a particular consumer; or
  • (ii) complying with legal or regulatory obligations, provided such combination does not result in the re-identification of individuals or use of Personal Information outside the direct business relationship with Customer.

2.5 To the extent it has access to the requested Personal Information and its systems are reasonably capable of fulfilling such requests, assist Customer in responding to verifiable consumer requests within a reasonable timeframe, including:

  • (i) requests to access, delete, correct, or opt-out of the sale or sharing of Personal Information;
  • (ii) requests to limit the use of Sensitive Personal Information under applicable US State Privacy Laws; and
  • (iii) other rights as required by applicable US State Privacy Laws.

Customer shall be responsible for Kisi's reasonable costs and expenses arising from such assistance, including but not limited to personnel time and system modifications, unless such assistance is required due to Kisi's non-compliance with this State Law Addendum or applicable US State Privacy Laws, in which case Kisi shall bear its own costs. Kisi shall promptly notify Customer if its systems lack the functionality to fulfill a specific request, and the Parties shall cooperate in good faith to identify an alternative solution.

3. SECURITY MEASURES

3.1 General Security Requirements. Kisi shall maintain reasonable administrative, technical, and physical security procedures and practices appropriate to the nature of the Personal Information, to protect it from unauthorized or illegal access, destruction, use, modification, or disclosure, in accordance with the DPA and applicable US State Privacy Laws.

3.2 Security Certifications and Standards. Kisi maintains security measures and certifications as described at https://www.getkisi.com/security or such other URL as Kisi may designate, including:

(a) SOC 2 Compliance: Kisi has undergone or will undergo a SOC 2 for Service Organizations: Trust Services Criteria Report on Controls at a Service Organization Relevant to Security, Availability, Processing Integrity, Confidentiality and Privacy examination by an independent third party. The SOC 2 Report details the management's description of Kisi's system and the suitability of the design and operating effectiveness of controls.

(b) Industry Standards: Kisi implements security controls based on recognized frameworks and industry best practices, including but not limited to ISO 27001 principles, to ensure appropriate protection of Personal Information.

3.3 Security Documentation. Upon Customer's reasonable written request and subject to appropriate confidentiality agreements, Kisi may provide:

  • Summary of relevant security certifications and audit reports
  • Documentation demonstrating compliance with applicable security standards
  • Written responses to reasonable information security questionnaires, provided that Customer shall not exercise this right more than once per year unless required by law or in response to a Security Incident.

4. USE OF SUBPROCESSORS

Customer authorizes Kisi to engage subprocessors consistent with the subprocessor provisions of the DPA. Kisi shall:

(i) enter into contracts requiring each subprocessor to adhere to the same data protection obligations as set forth in this Addendum;

(ii) provide Customer with reasonable notice of new subprocessors via the existing notification mechanisms described in the DPA, with a right to object on reasonable privacy-related grounds within fifteen (15) days of such notice; and

(iii) remain liable for subprocessors' actions in accordance with the DPA.

5. AUDITS AND ASSESSMENTS

5.1 Documentation and Compliance. Upon reasonable written request and no more than once annually, unless required by law or in response to a Security Incident, Kisi shall provide documentation necessary to demonstrate compliance with this State Law Addendum and applicable US State Privacy Laws.

5.2 Security Audit Reports. Customer may request a copy of Kisi's most recent security audit reports or certifications, including:

  • SOC 2 Type II Reports or equivalent security assessments
  • Summary reports of third-party security audits
  • Relevant security certifications and compliance documentation

Any audit reports or certifications provided by Kisi shall be subject to a non-disclosure agreement between Kisi and Customer to protect Kisi's confidential information.

6. DATA MINIMIZATION

Kisi shall process Personal Information only to the extent necessary to provide the Services and fulfill its obligations under the Agreement, this DPA, and this State Law Addendum, in accordance with applicable US State Privacy Laws. Kisi shall not collect, retain, or process Personal Information beyond what is reasonably required for the specified purposes. Customer shall ensure that Personal Information provided to Kisi is limited to what is necessary for the Services and complies with data minimization requirements under applicable US State Privacy Laws. Upon Customer's written request, Kisi shall promptly delete or return any Personal Information that is no longer necessary for the Services, unless Kisi is required to retain such data under applicable law or for legitimate business purposes as permitted by the DPA.

7. CERTIFICATION

Kisi certifies that it understands and will comply with the restrictions and obligations set forth in this State Law Addendum and in the applicable US State Privacy Laws, including but not limited to those found in Cal. Civ. Code § 1798.140(v) and § 1798.100(d), as well as any analogous requirements under other US State Privacy Laws in effect during the term of the Agreement.

8. DISPUTE RESOLUTION

In the event of a dispute arising out of or relating to this State Law Addendum or Kisi's compliance with applicable US State Privacy Laws, the Parties shall first attempt to resolve the dispute in good faith through informal discussions between designated representatives within thirty (30) days of written notice of the dispute. If the dispute remains unresolved, the Parties may pursue remedies in accordance with the dispute resolution provisions of the Agreement, provided that any such dispute shall be governed by the laws specified in the Agreement, unless otherwise required by applicable US State Privacy Laws. Nothing in this Section shall limit either Party's right to seek injunctive relief or other equitable remedies in a court of competent jurisdiction to prevent or mitigate harm arising from a breach of this State Law Addendum.

9. MISCELLANEOUS

9.1 This State Law Addendum will terminate automatically upon the expiration or termination of the Agreement or DPA.

9.2 In the event of any conflict between the DPA and this State Law Addendum, this State Law Addendum shall prevail solely with respect to matters under the US State Privacy Laws.

9.3 This State Law Addendum shall be effective as of the date Customer executes the Agreement and shall remain in force for the duration of the Agreement, unless terminated earlier upon mutual written agreement of the Parties.