KADO DATA PROCESSING AGREEMENT

2. Customer Responsibilities

1. Compliance with Laws: Within the scope of the Agreement and in its use of the services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.

   In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. You will inform us without undue delay if you are not able to comply with your responsibilities under this 'Compliance with Laws' section or applicable Data Protection Laws

2. Controller Instructions: The parties agree that the Agreement (including this DPA), together with your use of the Subscription Service in accordance with the Agreement, constitute your complete Instructions to us in relation to the Processing of Personal Data, so long as you may provide additional instructions during the subscription term that are consistent with the Agreement, the nature and lawful use of the Subscription Service.
3. Security: You are responsible for independently determining whether the data security provided for in the Subscription Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Subscription Service, including protecting the security of Personal Data in transit to and from the Subscription Service (including to securely backup or encrypt any such Personal Data).
4. Confidentiality: We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
5. Personal Data Breaches: We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.
6. Deletion or Return of Personal Data: We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with the procedures set out in our Product Specific Terms. This term will apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your KADO account after expiration or termination of your subscription by sending a request to support@kadonetworks.com. You may also cancel your account by accessing your administrator billing panel and clicking on the “Cancel Subscription” button therein.

3. KADO Obligations

1. Compliance with Instructions: We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.
2. Conflict of Laws: If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Subscription Services until such time as you issue new lawful Instructions with regard to the Processing.
3. Confidentiality: We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
4. Personal Data Breaches: We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.
5. Deletion or Return of Personal Data: We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with the procedures set out in our Product Specific Terms. This term will apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your KADO account after expiration or termination of your subscription by sending a request to support@kadonetworks.com. You may also cancel your account by accessing your administrator billing panel and clicking on the “Cancel Subscription” button therein.
6. European Data: means Personal Data that is subject to the protection of European Data Protection Laws.

4. Data Subject Requests

The Subscription Service provides you with a number of controls that you can use to retrieve, correct, delete or restrict Personal Data, which you can use to assist it in connection with its obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").

To the extent that you are unable to independently address a Data Subject Request through the Subscription Service, then upon your written request to privacy@kadonetworks.com we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. You will reimburse us for the commercially reasonable costs arising from this assistance.

If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

5. Sub-Processors

You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors, the KADO Affiliates and third parties listed in Annex 2 to this DPA.

Where we engage Sub-Processors, we will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

6. Data Transfers

You acknowledge and agree that we may access and Process Personal Data on a global basis as necessary to provide the Subscription Service in accordance with the Agreement, and in particular that Personal Data may be transferred to and Processed by KADO Networks, Inc. in the United States and to other jurisdictions where KADO Affiliates and Sub-Processors have operations. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

7. Additional Provisions for European Data

1. Scope: This 'Additional Provisions for European Data' section will apply only with respect to European Data.
2. Roles of the Parties: When Processing European Data in accordance with your Instructions, the parties acknowledge and agree that you are the Controller of European Data and we are the Processor.
3. Instructions: If we believe that your Instruction infringes European Data Protection Laws (where applicable), we will inform you without delay.
4. Sub-Processor Agreements: For the purposes of Clause 9(c) of the Standard Contractual Clauses, you acknowledge that we may be restricted from disclosing Sub-Processor agreements but we will use reasonable efforts to require any Sub-Processor we appoint to permit it to disclose the Sub-Processor agreement to you and will provide (on a confidential basis) all information we reasonably can.
5. Data Protection Impact Assessments and Consultation with Supervisory Authorities: To the extent that the required information is reasonably available to us, and you do not otherwise have access to the required information, we will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with supervisory authorities  (for example, the French Data Protection Agency (CNIL), the Berlin Data Protection Authority (BlnBDI) and the UK Information Commissioner's Office (ICO)) or other competent data privacy authorities to the extent required by European Data Protection Laws.
6. Transfer Mechanisms for Data Transfers:
   1. KADO will not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.
   2. You acknowledge that in connection with the performance of the Subscription Services, KADO Networks, Inc. is a recipient of European Data in the United States. Subject to sub-sections (C) and (D), the parties agree that the Standard Contractual Clauses will be incorporated by reference and form part of the Agreement as follows:
      1. EEA Transfers. In relation to European Data that is subject to the GDPR (i) Customer is the "data exporter" and KADO Networks, Inc. is the "data importer"; (ii) the Module Two terms apply to the extent the Customer is a Controller of European Data and the Module Three terms apply to the extent the Customer is a Processor of European Data; (iii) in Clause 7, the optional docking clause applies; (iv) in Clause 11, the optional language is deleted; (v) in Clauses 17 and 18, the parties agree that the governing law and forum for disputes for the Standard Contractual Clauses will be determined in accordance with the 'Contracting Entity; Applicable Law; Notice’ section of the Jurisdiction Specific Terms or, if such section does not specify an EU Member State, the Republic of Ireland (without reference to conflicts of law principles); (vi) the Annexes of the Standard Contractual Clauses will be deemed completed with the information set out in the Annexes of this DPA; and (vii) if and to the extent the Standard Contractual Clauses conflict with any provision of this DPA the Standard Contractual Clauses will prevail to the extent of such conflict.
      2. UK Transfers. In relation to European Data that is subject to the UK GDPR, the Standard Contractual Clauses will apply in accordance with sub-section (a) and the following modifications (i) the Standard Contractual Clauses will be modified and interpreted in accordance with the UK Addendum, which will be incorporated by reference and form an integral part of the Agreement; (ii) Tables 1, 2 and 3 of the UK Addendum will be deemed completed with the information set out in the Annexes of this DPA and Table 4 will be deemed completed by selecting “neither party”; and (iii) any conflict between the terms of the Standard Contractual Clauses and the UK Addendum will be resolved in accordance with Section 10 and Section 11 of the UK Addendum.
      3. Swiss Transfers. In relation to European Data that is subject to the Swiss DPA, the Standard Contractual Clauses will apply in accordance with sub-section (a) and the following modifications (i) references to "Regulation (EU) 2016/679" will be interpreted as references to the Swiss DPA; (ii) references to "EU", "Union" and "Member State law" will be interpreted as references to Swiss law; and (iii) references to the "competent supervisory authority" and "competent courts" will be replaced with the "the Swiss Federal Data Protection and Information Commissioner " and the "relevant courts in Switzerland".
   3. Where the KADO contracting entity under the Agreement is not KADO Networks, Inc., such contracting entity (not KADO Networks, Inc.) will remain fully and solely responsible and liable to you for the performance of the Standard Contractual Clauses by KADO Networks, Inc., and you will direct any instructions, claims or enquiries in relation to the Standard Contractual Clauses to such contracting entity. If KADO cannot comply with its obligations under the Standard Contractual Clauses or is breach of any warranties under the Standard Contractual Clauses or UK Addendum (as applicable) for any reason, and you intend to suspend the transfer of European Data to KADO or terminate the Standard Contractual Clauses ,or UK Addendum, you agree to provide us with reasonable notice to enable us to cure such non-compliance and reasonably cooperate with us to identify what additional safeguards, if any, may be implemented to remedy such non-compliance. If we have not or cannot cure the non-compliance, you may suspend or terminate the affected part of the Subscription Service in accordance with the Agreement without liability to either party (but without prejudice to any fees you have incurred prior to such suspension or termination).
   4. Although KADO Networks, Inc. does not currently rely on the EU-US Privacy Shield as a legal basis for transfers of European Data in light of the judgment of the Court of Justice of the EU in Case C-311/18, for as long as KADO Networks, Inc. is self-certified to the Privacy Shield KADO Networks, Inc will process European Data in compliance with the Privacy Shield Principles and let you know if it is unable to comply with thi, Inc., such alternative transfer mechanism will apply automatically instead of the Standard Contractual Clauses described in this DPA (but only to the extent such alternative transfer mechanism complies with European Data Protection Laws), and you agree to execute such other documents or take such action as may be reasonably necessary to give legal effect such alternative transfer mechanism.

8. Additional provisions for California Personal Information

1. Scope: The 'Additional Provisions for California Personal Information' section of the DPA will apply only with respect to California Personal Information.
2. Roles of the Parties: When processing California Personal Information in accordance with your Instructions, the parties acknowledge and agree that you are a Business and we are a Service Provider for the purposes of the CCPA.
3. Responsibilities: The parties agree that we will Process California Personal Information as a Service Provider strictly for the purpose of performing the Subscription Services and Consulting Services under the Agreement (the "Business Purpose") or as otherwise permitted by the CCPA, including as described in the 'Usage Data' section of our Privacy Policy.

9. General Provisions

1. Amendments: Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms that apply in the ‘Amendment; No Waiver’ section of the General Terms will apply.
2. Severability: If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.
3. Limitation of Liability: Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limitation of Liability' section of the General Terms and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). For the avoidance of doubt, if KADO Networks, Inc. is not a party to the Agreement, the ‘Limitation of Liability’ section of the General Terms will apply as between you and KADO Networks, Inc., and in such respect any references to ‘KADO, ‘we’, ‘us’ or ‘our’ will include both KADO Networks, Inc. and the KADO entity that is a party to the Agreement. In no event will either party's liability be limited with respect to any individual's data protection rights under this DPA (including the Standard Contractual Clauses) or otherwise.
4. Governing Law: This DPA will be governed by and construed in accordance with the laws of New York.

10. Parties to this DPA

1. Permitted Affiliates: By signing the Agreement, you enter into this DPA (including, where applicable, the Standard Contractual Clauses) on behalf of yourself and in the name and on behalf of your Permitted Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the terms “Customer”, “you” and “your” will include you and such Permitted Affiliates.
2. Authorization: The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.
3. Remedies: The parties agree that (i) solely the Customer entity that is the contracting party to the Agreement will exercise any right or seek any remedy any Permitted Affiliate may have under this DPA on behalf of its Affiliates, and (ii) the Customer entity that is the contracting party to the Agreement will exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all Instructions, authorizations and communications with us under the DPA and will be entitled to make and receive any communications related to this DPA on behalf of its Permitted Affiliates.
4. Other rights: The parties agree that you will, when reviewing our compliance with this DPA pursuant to the ‘Demonstration of Compliance’ section, take all reasonable measures to limit any impact on us and our Affiliates by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.

ANNEX 1 – Details of processing

1. List of Parties

   Data exporter:

   • Name: The Customer, as defined in the KADO Customer Terms of Service (on behalf of itself and Permitted Affiliates)
   • Address: The Customer's address, as set out in the Customer’s KADO account billing information
   • Contact person’s name, position and contact details: The Customer's contact details, as set out in the Customer’s KADO Account
   • Activities relevant to the data transferred under these Clauses: Processing of Personal Data in connection with Customer's use of the KADO Subscription Services under the KADO Customer Terms of Service
   • Role (controller/processor): Controller

   Data importer:

   • Name: KADO Networks, Inc.
   • Address: Ave, 6th Floor, New York, NY 10001, USA
   • Contact person’s name, position: Sergio Tomas Ortiz, Data Protection Officer and Chief Technology Officer, KADO Networks, Inc.
   • Activities relevant to the data transferred under these Clauses: Processing of Personal Data in connection with Customer's use of the KADO Subscription Services under the KADO Customer Terms of Service
   • Role (controller/processor): Processor
2. Description of Transfer

   Categories of Data Subjects whose Personal Data is Transferred

   You may submit Personal Data in the course of using the Subscription Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

   Your Contacts and other end users including your employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to your end users.

   Categories of Personal Data Transferred

   You may submit Personal Data to the Subscription Services, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following categories of Personal Data:

   1. Contact Information
   2. Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Subscription Service.

   Sensitive Data transferred and applied restrictions or safeguards

   The parties do not anticipate the transfer of sensitive data.

   Frequency of the transfer

   Continuous

   Nature of the Processing

   Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:

   1. Storage and other Processing necessary to provide, maintain and improve the Subscription Services provided to you; and/or
   2. Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.

   Purpose of the transfer and further processing

   We will Process Personal Data as necessary to provide the Subscription Services pursuant to the Agreement, as further instructed by you in your use of the Subscription Services.

   Period for which Personal Data will be retained

   Subject to the 'Deletion or Return of Personal Data' section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

3. Competent Supervisory Authority

   For the purposes of the Standard Contractual Clauses, the supervisory authority that will act as competent supervisory authority will be determined in accordance with GDPR.

ANNEX 2 – List of Subprocessors

• Amazon Web Services: data hosting
• Google Analytics: tracking of user activity on web and services
• SendGrid: transactional email services
• Sendwithus: transactional email services
• Mailchimp: email marketing
• Metabase: database management
• Mixpanel: usage analytics
• Hubspot: client management systems