Data Processing Addendum
This Data Processing Addendum (this “DPA”) supplements and forms part of the Kaveat Terms of Service, available at https://www.kaveatapp.com/terms-of-service, or similar agreement (together with any Order Form(s), the “Agreement”) agreed to between Customer and Kaveat that governs Customer’s use and Kaveat’s provision of Kaveat’s Platform.
Capitalized terms used but not otherwise defined in this DPA shall have the meanings given to them in the Agreement. Except as expressly modified below, the terms of the Agreement shall remain in full force and effect.
The parties hereby agree that the terms and conditions set out below shall be added as an addendum to the Agreement. The following obligations shall only apply to the extent required by Data Protection Laws with regard to the relevant Customer Personal Data, if applicable.
1.1. “Controller” has the meaning given under Data Protection Laws and, if not defined in Data Protection Laws, means the entity that determines the purposes and means of the Processing of Personal Data.
1.2. “Customer Personal Data” means Personal Data Processed by Kaveat on behalf of Customer to perform the Services under the Agreement.
1.3. “Data Protection Laws” means the data privacy and security laws and regulations applicable to the Processing of Customer Personal Data, including, in each case to the extent applicable to the relevant party, European Data Protection Laws, the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, and its implementing regulations (collectively, “CCPA”), and other data privacy laws in the United States that are already in force or that will come into force during the term of this DPA.
1.4. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
1.5. “European Data Protection Laws” means, in each case to the extent applicable: (a) the EU General Data Protection Regulation 2016/679 (“GDPR”); (b) the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Data Protection Act of 2018, and all other laws relating to data protection, the processing of personal data, privacy, or electronic communications in force from time to time in the United Kingdom (collectively, “UK Data Protection Laws”); (c) the Swiss Federal Act on Data Protection (“Swiss FADP”); and (d) any other applicable law, rule, or regulation related to the protection of Customer Personal Data in the European Economic Area, United Kingdom, or Switzerland that is already in force or that will come into force during the term of this DPA.
1.6. “Personal Data” means information that constitutes “personal information,” “personal data,” or “personally identifiable information” under Data Protection Laws.
1.7. “Process” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, alignment, combination, restriction, erasure, destruction or disclosure by transmission, dissemination or otherwise making available.
1.8. “Processor” has the meaning given under Data Protection Laws and, if not defined in Data Protection Laws, means the entity that Processes Personal Data on behalf of the Controller.
1.9. “Security Incident” means a breach of Kaveat’s security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data in Kaveat’s possession, custody, or control.
1.10. “Standard Contractual Clauses” means, as applicable, Module Two (Transfer controller to processor) or Module Three (Transfer processor to processor) of the standard contractual clauses approved by Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (currently available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D0914&qid=1688587744942), as supplemented or modified by Appendix 3.
1.11. “Subprocessor” means any Processor appointed by Kaveat to Process Customer Personal Data on behalf of Customer under the Agreement.
2. PROCESSING OF CUSTOMER PERSONAL DATA.
2.1. Roles of the Parties; Compliance. The parties acknowledge and agree that: (a) Customer is a Controller of Customer Personal Data and Kaveat is a Processor; or (b) Customer is a Processor to a third-party Controller in respect of Customer Personal Data, in which case Kaveat will remain a Processor with respect to the Customer in such event. Each party will comply with the obligations applicable to it in such role under Data Protection Laws with respect to the Processing of Customer Personal Data.
2.2. Customer Instructions. Kaveat will Process Customer Personal Data only in accordance with Customer’s documented instructions unless otherwise required by applicable law, in which case Kaveat will inform Customer of such Processing unless notification is prohibited by applicable law. Customer hereby instructs Kaveat to Process Customer Personal Data: (a) to provide the Services to Customer; (b) to perform its obligations and exercise its rights under the Agreement and this DPA; and (c) as necessary to prevent or address technical problems with the Services. Kaveat will notify Customer if, in its opinion, an instruction of Customer infringes upon Data Protection Laws.
2.3. Customer Obligations. Customer shall: (a) only provide instructions for the Processing of Customer Personal Data that comply with Data Protection Laws; (b) give adequate notice and make all appropriate disclosures to Data Subjects regarding Customer’s use and disclosure and Kaveat’s Processing of Customer Personal Data; and (c) obtain all necessary rights, and, where applicable, all appropriate and valid consents to disclose Customer Personal Data to Kaveat to permit the Processing of such Customer Personal Data by Kaveat for the purposes of performing Kaveat’s obligations under the Agreement or as may be required by Data Protection Laws. Customer shall notify Kaveat of any changes in, or revocation of, the permission to use, disclose, or otherwise Process Customer Personal Data that would impact Kaveat’s ability to comply with the Agreement, this DPA, or Data Protection Laws.
2.4. Details of Processing. The parties acknowledge and agree that the nature and purpose of the Processing of Customer Personal Data, the types of Customer Personal Data Processed, the categories of Data Subjects, and other details regarding the Processing of Customer Personal Data are as set forth in Appendix 1.
2.5. Processing Subject to the CCPA. As used in this Section 2.5, the terms “Sell,” “Share,” “Business Purpose,” and “Commercial Purpose” shall have the meanings given in the CCPA and “Personal Information” shall mean any personal information (as defined in the CCPA) contained in Customer Personal Data. Kaveat will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes specified in the Agreement, including for any Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA, or (ii) outside of the direct business relationship between Customer and Kaveat; or (c) combine Personal Information received from, or on behalf of, Customer with Personal Data received from or on behalf of any third party, or collected from Kaveat’s own interaction with Data Subjects, except to perform any Business Purpose permitted by the CCPA. Kaveat hereby certifies that it understands the foregoing restrictions under this Section 2.5 and will comply with them. The parties acknowledge that the Personal Information disclosed by Customer to Kaveat is provided to Kaveat only for the limited and specified purposes set forth in Appendix 1. Kaveat will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA. Customer has the right to take reasonable and appropriate steps to help ensure that Kaveat uses the Personal Information transferred in a manner consistent with Customer’s obligations under the CCPA by exercising Customer’s audit rights in Section 8. Kaveat will notify Customer if it makes a determination that Kaveat can no longer meet its obligations under the CCPA. If Kaveat notifies Customer of unauthorized use of Personal Information, including under the foregoing sentence, Customer will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Information shared with Kaveat, terminating the portion of the Agreement relevant to such unauthorized use, or such other steps mutually agreed between the parties in writing.
3. CONFIDENTIALITY. Kaveat shall ensure that Kaveat personnel who access Customer Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality with respect to such Customer Personal Data.
4.1. Security Measures. 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, Kaveat shall implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk, in accordance with the security standards in Appendix 2 (the “Security Measures”). 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, provided that the modifications will not materially decrease Kaveat’s security obligations hereunder.
4.2. Security Incidents. Upon becoming aware of a confirmed Security Incident, Kaveat will: (a) notify Customer of the Security Incident without undue delay after becoming aware of the Security Incident; and (b) take reasonable steps to identify the cause of such Security Incident, minimize harm, and prevent a recurrence. Kaveat will take reasonable steps to provide Customer with information available to Kaveat that Customer may reasonably require to comply with its obligations under Data Protection Laws. Kaveat’s notification of or response to a Security Incident under this Section 4.2 will not be construed as an acknowledgement by Kaveat of any fault or liability with respect to the Security Incident.
4.3. Customer’s Security Responsibilities. Customer agrees that, without limitation of Kaveat’s obligations under this Section 4, 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 Personal Data; and (b) securing any account authentication credentials, systems, and devices Customer uses to access or connect to the Services, where applicable. Without limiting Kaveat’s obligations hereunder, Customer is responsible for reviewing the information made available by Kaveat 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.
5. SUBPROCESSING. Subject to the requirements of this Section 5, Customer generally authorizes Kaveat to engage Subprocessors as Kaveat considers reasonably appropriate for the Processing of Customer Personal Data. A list of Kaveat’s Subprocessors, including their functions and locations, is available upon Customer’s request and may be updated by Kaveat from time to time in accordance with this Section 5. Kaveat will notify Customer of the addition or replacement of any Subprocessor at least ten (10) days prior to such engagement. Customer may object to such changes on reasonable data protection grounds by providing Kaveat written notice of such objection within ten (10) days. Upon receiving such an objection, where practicable and at Kaveat’s sole discretion Kaveat will use commercially reasonable efforts to: (a) 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; or (b) take corrective steps requested by Customer in its objection and proceed to use the new Subprocessor. If Kaveat informs Customer that such change or corrective steps cannot be made, Customer may, as its sole and exclusive remedy available under this Section 5, terminate the relevant portion of the Agreement involving the Services which require the use of the proposed Subprocessor by providing written notice to Kaveat. When engaging any Subprocessor, Kaveat will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA. Kaveat shall be liable for the acts and omissions of the Subprocessor to the extent Kaveat would be liable under the Agreement and this DPA.
6. DATA SUBJECT RIGHTS. Kaveat will, taking into account the nature of the Processing of Customer Personal Data and the functionality of the Services, provide reasonable assistance to Customer by appropriate technical and organizational measures, insofar as this is possible, as necessary for Customer to fulfill its obligations under Data Protection Laws to respond to requests by Data Subjects to exercise their rights under Data Protection Laws. Kaveat reserves the right to charge Customer on
a time and materials basis in the event that Kaveat considers that such assistance is onerous, complex, frequent, or time consuming. If Kaveat receives a request from a Data Subject under any Data Protection Laws with respect to Customer Personal Data, Kaveat will advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request.
7. ASSESSMENTS AND PRIOR CONSULTATIONS. In the event that Data Protection Laws require Customer to conduct a data protection impact assessment, transfer impact assessment, or prior consultation with a Supervisory Authority in connection with Kaveat’s Processing of Customer Personal Data, following written request from Customer, Kaveat shall use reasonable commercial efforts to provide relevant information and assistance to Customer to fulfil such request, taking into account the nature of Kaveat’s Processing of Customer Personal Data and the information available to Kaveat. Kaveat reserves the right to charge Customer on a time and materials basis in the event that Kaveat considers that such assistance is onerous, complex, frequent, or time consuming.
8. RELEVANT RECORDS AND AUDIT RIGHTS.
8.1. Review of Information and Records. Upon Customer’s reasonable written request, Kaveat will make available to Customer all information in Kaveat’s possession reasonably necessary to demonstrate Kaveat’s compliance with Data Protection Laws and Kaveat’s obligations set out in this DPA. Such information will be made available to Customer no more than once per calendar year and subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement.
8.2. Audits. If Customer requires information for its compliance with Data Protection Laws in addition to the information provided under Section 8.1, at Customer’s sole expense and to the extent Customer is unable to access the additional information on its own, Kaveat will allow for, cooperate with, and contribute to reasonable assessments and audits, including inspections, by Customer or an auditor mandated by Customer (“Mandated Auditor”), provided that (a) Customer provides Kaveat with reasonable advance written notice including the anticipated date of the audit, the proposed scope of the audit, and the identity of any Mandated Auditor, which shall not be a competitor of Kaveat; (b) Kaveat approves the Mandated Auditor in writing, with such approval not to be unreasonably withheld; (c) the audit is conducted during normal business hours and in a manner that does not have any adverse impact on Kaveat’s normal business operations; (d) Customer or any Mandated Auditor complies with Kaveat’s standard safety, confidentiality, and security policies or procedures in conducting any such audits; (e) any records, data, or information accessed by Customer or any Mandated Auditor in the performance of any such audit, or any results of any such audit, will be deemed to be the Confidential Information of Kaveat and subject to a nondisclosure agreement to be provided by Kaveat; and (f) Customer may initiate such audit not more than once per calendar year unless otherwise required by a Supervisory Authority or Data Protection Laws.
8.3. Results of Audits. Customer will promptly notify Kaveat of any non-compliance discovered during the course of an audit and provide Kaveat any reports generated in connection with any audit under this Section, unless prohibited by Data Protection Laws or otherwise instructed by a Supervisory Authority. Customer may use the audit reports solely for the purposes of meeting Customer’s audit requirements under Data Protection Laws to confirm that Kaveat’s Processing of Customer Personal Data complies with this DPA.
9. DATA TRANSFERS. If Customer transfers Customer Personal Data to Kaveat that is subject to European Data Protection Laws, and such transfer is not subject to an alternative adequate transfer mechanism under European Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then Customer (as “data exporter”) and Kaveat (as “data importer”) agree that the applicable terms of the Standard Contractual Clauses shall apply to and govern such transfer and are hereby incorporated herein by reference. In furtherance of the foregoing, the parties agree that: (a) the execution of this DPA shall constitute execution of the applicable Standard Contractual Clauses as of the DPA Effective Date; (b) the relevant selections, terms, and modifications set forth in Appendix 3 shall apply, as applicable; and (c) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under European Data Protection Laws in the absence of such Standard Contractual Clauses on any other basis.
10. DELETION OR RETURN OF CUSTOMER PERSONAL DATA. Following termination or expiration of the Agreement, Kaveat will, at Customer's option, delete or return Customer Personal Data and all copies to Customer, except as required by applicable law. If Kaveat retains Customer Personal Data pursuant to applicable law, Kaveat agrees that all such Customer Personal Data will continue to be protected in accordance with this DPA.
11. GENERAL TERMS. This DPA will, notwithstanding the expiration or termination of the Agreement, remain in effect until, and automatically expire upon, Kaveat’s deletion or return of all Customer Personal Data. 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 (a) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible; or, if this is not possible, (b) construed in a manner as if the invalid or unenforceable part had never been contained therein. To the extent of any conflict or inconsistency between this DPA and the other terms of the Agreement in relation to the Processing of Customer Personal Data, this DPA will govern. Unless otherwise expressly stated herein, the parties will provide notices under this DPA in accordance with the Agreement, provided that all such notices may be sent via email. Any liabilities arising in respect of this DPA are subject to the limitations of liability under the Agreement. This DPA will be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
Last Updated: 3 October 2023
APPENDIX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
1. Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing are as described in the Agreement and the DPA.
2. Nature and purpose of the Processing of Customer Personal Data
The nature of the Processing involves those activities reasonably required to facilitate or support the provision of the Services as described in the Agreement and the DPA.
The purpose of the Processing of Customer Personal Data includes the following:
Helping to ensure security and integrity, to the extent the use of Customer Personal Data is reasonably necessary and proportionate for these purposes;
Debugging to identify and repair errors that impair existing intended functionality;
Performing the Services as described in the Agreement and carrying out the instructions set forth in Section 2.2, including providing the Platform;
Undertaking internal research for technological development and demonstration; and
Undertaking activities to verify or maintain the quality or safety of the Services, and to improve, upgrade, or enhance the Services.
3. The categories of Data Subjects to whom Customer Personal Data relates
The categories of Data Subjects shall be determined solely by Customer, and may include Customer’s clients, vendors, suppliers, partners, and employees.
4. The categories of Customer Personal Data
The categories of Customer Personal Data Processed shall be determined solely by Customer, and may include first and last name, address, email address, and telephone number.
5. The sensitive data included in Customer Personal Data
6. The frequency of Customer’s transfer of Customer Personal Data to Kaveat:
On a continuous basis for the term of the Agreement.
7. The period for which Customer Personal Data will be retained, or, if that is not possible, the criteria used to determine that period:
As set forth in the DPA or the Agreement.
8. For transfers to Subprocessors, the subject matter, nature and duration of the Processing of Customer Personal Data:
For the same subject matter, nature, and duration set forth above.
APPENDIX 2: SECURITY MEASURES
1. Information Security Program. Implement, maintain, and comply with information security policies and procedures designed to protect the confidentiality, integrity, and availability of Customer Personal Data and any systems that store or otherwise Process it, which are: (a) aligned with an industry-standard control framework (e.g., NIST SP 800-53, ISO 27001, CIS Critical Security Controls); (b) approved by executive management; (c) reviewed and updated at least annually; and (d) communicated to all personnel with access to Customer Personal Data.
2. Risk Assessment. Maintain risk assessment procedures for the purposes of periodic review and assessment of risks to the organization, monitoring and maintaining compliance with the organization’s policies and procedures, and reporting the condition of the organization’s information security and compliance to internal senior management.
3. Personnel Training. Train personnel to maintain the confidentiality, integrity, and availability of Customer Personal Data, consistent with the terms of the Agreement and Data Protection Laws.
4. Vendor Management. Prior to engaging Subprocessors and other subcontractors, conduct reasonable due diligence and monitoring to ensure subcontractors are capable of maintaining the confidentiality, integrity, and availability of Customer Personal Data.
5. Access Controls. Only authorized personnel and third parties are permitted to access Customer Personal Data. Maintain logical access controls designed to limit access to Customer Personal Data and relevant information systems (e.g., granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking or changing access when employment terminates or changes in job functions occur).
6. Secure User Authentication. Maintain password controls designed to manage and control password strength, expiration, and usage. These controls include prohibiting users from sharing passwords and requiring that passwords controlling access to Customer Personal Data must: (a) be at least 8 characters in length and meet minimum complexity requirements; (b) not be stored in readable format on the organization’s computer systems; (c) have a history threshold to prevent reuse of recent passwords; and (d) if newly issued, be changed after first use.
7. Incident Detection and Response. Maintain policies and procedures to detect and respond to actual or reasonably suspected Security Incidents, and encourage the reporting of such incidents.
8. Encryption. Apply industry standard encryption to Customer Personal Data: (a) stored on any medium (i.e., laptops, mobile devices, portable storage devices, file servers and application databases); and (b) transmitted across any public network (such as the Internet) or wirelessly.
9. Network Security. Implement network security controls such as up-to-date firewalls, layered DMZs, updated intrusion detection and prevention systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
10. Vulnerability Management. Detect, assess, mitigate, remove, and protect against new and existing security vulnerabilities and threats, including viruses, bots, and other malicious code, by implementing vulnerability management, threat protection technologies, and scheduled monitoring procedures.
11. Change Control. Follow change management procedures and implement tracking mechanisms designed to test, approve, and monitor all changes to the organization’s technology and information assets.
12. Business Continuity and Disaster Recovery. Maintain business continuity and disaster recovery policies and procedures designed to maintain service and recover from foreseeable emergency situations or disasters.