I. INTERPRETATION AND DEFINITIONS

1. The headings in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA.

2. Terms used in their singular form include the plural and vice versa, as the context may require.  

3. Definitions:

3.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

3.2. “Authorized Affiliate” means any of Partner’s Affiliate(s) which is explicitly permitted to use the Services pursuant to the Agreement between the Parties, but has not signed its own agreement with Company, and is not a “Partner” as defined under the Agreement.

3.3. “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq. “CPRA” means the California Privacy Rights Act. 

3.4. The terms “Controller“, “Member State“, “Processor“, “Sub-Processor” “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR. The terms “Business”, “Business Purpose”, “Consumer” and “Service Provider” and “Third Party” shall have the same meaning as in the CCPA and/or the CPRA, as applicable. Upon CCPA/CPRA applicability, when used in this DPA, the term “Controller” shall also mean “Business”, and the term “Processor” shall also mean “Service Provider”; any other party shall mean a “Third Party”.

3.5. “Data Protection Laws and Regulations” means all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Israel and the United States of America, as applicable to the Processing of Personal Data under the Agreement including (without limitation) the GDPR, the UK GDPR, and the CCPA, CPRA, as applicable to the Processing of Personal Data hereunder and in effect at the time of Processor’s performance hereunder.

3.6. “Data Subject” means the identified or identifiable person to whom the Personal Data relates.

3.7. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

3.8. “Personal Data” or “Personal Information” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

3.9. “Protected/Personal Health Information (PHI)” or “Electronic Protected/Personal Health Information (ePHI)” shall have the meaning given under the Health Insurance Portability and Accountability Act (HIPAA) of 1996 in the United States, only to the extent of its applicability on the Agreement and respected Services (demographic information, medical histories, test and laboratory results, mental health conditions, insurance information and other data that a healthcare professional collects to identify an individual and determine appropriate care);

3.10. “Services” means the technology, platform, solutions and related services provided by Company, in accordance with the terms of the Agreement;

3.11. “Standard Contractual Clauses” or “SCC” means either the standard contractual clauses approved by the European Commission for the transfer of Personal Data to Processors or those for the transfer of Personal Data to Controllers (as the context requires), in each case established in third countries which do not ensure an adequate level of data protection current to the date of the transfer, or, where the UK GDPR applies, any equivalent set of clauses approved by the applicable authority.

3.12. “UK GDPR” means the Data Protection Act 2018, as well as 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 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).   

II. PROCESSING OF PERSONAL DATA

1. Roles of the Parties. With respect to any Personal Data collected or Processed via the Services, it is agreed that (a) Partner acts as a Data Controller, and (b) Company acts as a Data Processor; and (c) Company or its Affiliates may engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below. 

2. Annex 1 (Nature of Processing) includes a description of the Processing activities performed by Company as a Processor. The Parties may, from time to time, jointly agree to make such changes to Schedule 1 as reasonably necessary to meet the requirements of GDPR Article 28(3) or any other applicable Data Protection Law and Regulation regarding information to be Processed in an agreement between a Controller and a Processor.

3. Subject to the Agreement, Company will Process Personal Data in accordance with Partner’s instructions and as necessary for the performance of the Services,  the performance of the Agreement and this DPA, unless required otherwise by Union or Member State law or any other applicable law to which Company and its Affiliates are subject. In this case, Company will inform Partner of the legal requirement before Processing, unless that law prohibits such information on substantial grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Annex 1.

4. To the extent that Company or its Affiliates cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind) from Partner and/or its authorized users relating to Processing of Personal Data, or where Company considers such a request to be unlawful, Company (i) will inform Partner, providing relevant details of the problem, (ii) may, without any kind of liability towards Partner, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties disagree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Partner shall pay to Company all the amounts owed to Company or due before the date of termination. Partner will have no further claims against Company (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).

5. Company will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of Company, to the extent that such is a result of Partner’s instructions.

6. Partner’s Processing of Personal Data. Partner shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations and comply at all times with the obligations applicable to data Controllers (including, without limitation, Article 24 of the GDPR).  For the avoidance of doubt, Partner’s instructions for the Processing of Personal Data, whether reflected by this DPA or by online usage, setting and configuring the Services, shall comply with Data Protection Laws and Regulations. 

7. Partner shall have sole responsibility for the means by which Partner acquired and Process Personal Data. Without limitation, Partner shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall have any and all legal bases in order to collect, Process and transfer to or via Company any Personal Data.

8. Partner shall defend, hold harmless and indemnify Company, its Affiliates and subsidiaries (including without limitation their directors, officers, agents, subcontractors and/or employees) from and against any liability of any kind related to any breach, violation or infringement by Partner and/or its authorized users of any Data Protection Laws and Regulations and/or this DPA and/or this Section.

III. RIGHTS OF DATA SUBJECTS

1. If Company receives a request from a Data Subject to exercise its right to be informed, right of access, right to rectification, erasure, restriction of Processing, data portability, right to object, or its right not to be subject to a decision solely based on automated processing, including profiling (“Data Subject Request”), Company shall, to the extent legally permitted, promptly notify and forward such Data Subject Request to Partner. 

2. Taking into account the nature of the Processing, Company shall use commercially reasonable efforts to assist Partner by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Partner’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Partner shall be responsible for any costs arising from Company’s assistance.

IV. PERSONNEL

1. Confidentiality. Company will grant access to Personal Data to persons under its authority (including, without limitation, its personnel) only on a need-to-know and need-to-access basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality.

2. Company may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Laws and Regulations (in such a case, Company will inform the Partner of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), investors or potential acquirers.

V. AUTHORIZATION OF SUB-PROCESSORS

1. Company’s current list of Sub-processors is included in Schedule 2 (“Sub-processor List”) and is hereby approved by Data Controller. The Sub-processor List as of the effective date of this DPA, or as of the date of publication (as applicable), is hereby, or shall be, authorized by Partner. In any event, the Sub-processor List shall be deemed authorized by Partner unless it provides a written reasonable objection for reasons related to the GDPR within seven (7) business days following the publication of the Sub-processor List.

2. Partner may reasonably object for reasons related to the GDPR to Company’s use of an existing Sub-processor by providing a written objection to privacy@kahun.com. In the event Partner reasonably objects to an existing Sub-processor, as permitted in the preceding sentences, and the parties do not find a solution in good faith to the issue in question, then Partner may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Company without the use of the objected-to Sub-processor by providing written notice to Company provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Company. Partner will have no further claims against Company due to (i) past use of approved Sub-processors prior to the date of objection or (ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.

3. Company shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Services.

4. Objection Right for New Sub-processors. Partner may reasonably object to Company’s use of a new Sub-processor for reasons related to the GDPR by notifying Company promptly in writing within three (3) business days after receipt of Company’s notice in accordance with the mechanism set out in this Section 5, and such written objection shall include the reasons related to the GDPR for objecting to Company’s use of such new Sub-processor. Failure to object to such a new Sub-processor in writing within three (3) business days following Company’s notice shall be deemed as acceptance of the new Sub-Processor. In the event Partner reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Company will use reasonable efforts to make available to Partner a change in the Services or recommend a commercially reasonable change to Partner’s use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Partner. If Company is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Partner may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Company without the use of the objected-to new Sub-processor by providing written notice to Company provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Company. Until a decision is made regarding the new Sub-processor, Company may temporarily suspend the Processing of the affected Personal Data. Partner will have no further claims against Company due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.

5. Agreements with Sub-processors. Company or Company Processor’s operating on behalf of Company, has entered into a written agreement with its Sub-processors containing appropriate safeguards to the protection of Personal Data. Where Company engages a Sub-processor for carrying out specific Processing activities on behalf of the Partner, the same or materially similar data protection obligations as set out in this DPA will be imposed on such new Sub-processor by way of a contract, in particular, obligations to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the applicable Data Protection Law and Regulation.

VI. SECURITY

1. Controls for the Protection of Personal Data. Taking into account the nature of Processing, Company shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data. Upon the Partner’s request, Company will use commercially reasonable efforts to assist Partner, at Partner’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing, the costs of implementation, the scope, the context, the purposes of the Processing and the information available to Company. 

VII. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION

1. To the extent required under applicable Data Protection Laws and Regulations, Company shall notify Partner without undue delay after becoming aware of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data transmitted, stored or otherwise Processed by Company or its Sub-processors of which Company becomes aware (“Personal Data Incident”).

2. Company will make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Company deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Company’s reasonable control. The obligations herein shall not apply to incidents that are caused by Partner or Partner’s users. In any event, Partner will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).

VIII. AUTHORIZED AFFILIATES

1. Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Partner enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. Any access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement,  this DPA and Applicable Laws and Regulation, and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Partner.

2. Communication. The Partner shall remain responsible for coordinating all communication with Company under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

IX. TRANSFERS OF DATA

1. Transfers to countries that offer an adequate level of data protection. Personal Data may be transferred from the EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland),  (collectively, “EEA”), Switzerland and the United Kingdom (UK) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission (“Third Countries” and “Adequacy Decisions”, respectively), without any further safeguard being necessary.

2. Transfers to other countries. If the Processing of Personal Data includes transfers from the EEA or the UK to countries outside the EEA or the UK, respectively, which do not offer an adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the Parties shall comply with Chapter V of the GDPR, including, if necessary, executing the Standard Contractual Clauses (SCC) adopted by the relevant data protection authorities of the EEA, the Union, the Member States, the UK or the European Commission or comply with any of the other mechanisms provided for in the GDPR for transferring Personal Data to such Other Countries.

3. Without limiting the generality of Sections 9.1 and 9.2, for the purpose of Chapter V of the GDPR, or similar provisions under any Applicable Laws and Regulation, Company may transfer Personal Data, including, without limitation, to Processors (in its role as a Controller), to Sub-Processors and/or to Company’a group member companies in Third Countries where such transfers are conducted in a lawful manner under the GDPR (or the UK GDPR), or to Other Countries where such Personal Data transfers are (i) governed by the applicable Standard Contractual Clauses, or (ii) otherwise based on an international agreement under Article 48 of the GDPR; or (iii) subject to a derogation under Article 49 of the GDPR.

4. Schedule 3 sets forth the applicable Standard Contractual Clauses applicable to the Parties engagement under this DPA.

X. TERMINATION

This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections 2.2, this Section 10 and 11 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately from the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.

XI. GENERAL

1. In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement.

2. Notwithstanding anything to the contrary in the Agreement and/or in any agreement between the parties and to the maximum extent permitted by law: (A) Company’s (including Company’s Affiliates’) entire, total and aggregate liability, related to Personal Data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation under the Agreement or applicable law regarding data protection or privacy, shall be limited to the amounts paid to Company under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (B) In no event will Company and/or Company Affiliates and/or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings;  (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (C) The foregoing exclusions and limitations on liability set forth in this Section shall apply: (i) even if Company, Company Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).

XII. AMENDMENTS

This DPA may be amended at any time by a written instrument duly signed by each of the Parties.

XIII. LEGAL EFFECT

This DPA shall only become legally binding between Partner and Company when the formalities steps set out in the Section “INSTRUCTIONS ON HOW TO EXECUTE THIS DPA” below have been fully completed. Company may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company.