Kanerika Inc. Data Protection Addendum

This Data Protection Addendum (“Addendum“) between Kanerika Inc. (“Kanerika”) and the Customer (as defined in the Agreement) forms part of the Kanerika Terms of Service set forth at or such other written or electronic agreement incorporating this Addendum, in each case governing Customer’s access to and use of the Services (the “Agreement”).

Customer enters into this Addendum on behalf of itself and any Affiliates authorized to use the Services under the Agreement and who have not entered into a separate contractual arrangement with Kanerika. For the purposes of this Addendum only, and except where otherwise indicated, references to “Customer” shall include Customer and such Affiliates.

The Parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

1. Definitions

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

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

B. “Customer Personal Data” means any Personal Data provided by or made available by Customer to Kanerika or collected by Kanerika on behalf of Customer which is Processed by Kanerika to perform the Services;

C. Controller to Processor SCCs” means the standard contractual clauses for cross-border transfers published by the European Commission on June 4, 2021 governing the transfer of European Area Personal Data to Third Countries as adopted by the European Commission, the Swiss Federal Data Protection and Information Commissioner (“Swiss FDPIC”) relating to data transfers to Third Countries (collectively “EU SCCs”); (ii) the international data transfer addendum (“UK Transfer Addendum”) adopted by the UK Information Commissioner’s Office (“UK ICO”) for data transfers from the UK to Third Countries; or (iii) any similar such clauses adopted by a data protection regulator relating to Personal Data transfers to Third Countries, including without limitation any successor clauses thereto;

D. “Data Protection Laws” means any local, state, or national law regarding the processing of Personal Data applicable to Kanerika in the jurisdictions in which the Services are provided to Customer, including, without limitation, privacy, security, and data protection law;

E. “EU Area” means the European Union, European Economic Area, United Kingdom, and Switzerland;

F. “EU Area Law” means (i) Directive 95/46/EC and, from May 25, 2018, Regulation (EU) 2016/679 (“EU GDPR”) together with applicable legislation implementing or supplementing the same or otherwise relating to the processing of Personal Data of natural persons; (ii) the Data Protection Act 1998 of the United Kingdom and the EU GDPR as saved into United Kingdom Law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (the “UK GDPR”); (iii) the swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”); (iv) any other law relating to the data protection, security, or privacy of individuals that applies in the EU Area; or (v) any successor or amendments thereto (including, without limitation, implementation of the EU GDPR by Member States into their national law);

G. “Services” means the services to be supplied by Kanerika to Customer or Customer’s Affiliates pursuant to the Agreement; and

H. “Third Country” means countries that, where required by applicable Data Protection Laws, have not received an adequacy decision from an applicable authority relating to cross-border data transfers of Personal Data, including regulators such as the European Commission, UK ICO, or Swiss FDPIC.

1.2 The terms “Business”, “Business Purpose”, “commercial purpose”, “Contractor”, “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processor”, “Sell”, “Service Provider”, “Share”, “Subprocessor”, “Supervisory Authority”, and “Third Party” have the same meanings as described in applicable Data Protection Laws and cognate terms shall be construed accordingly.

1.3 Capitalized terms not otherwise defined in this Addendum shall have the meanings ascribed to them in the Agreement.

2. Roles of the Parties

2.1 The Parties acknowledge and agree that with regard to the Processing of Customer Personal Data, and as more fully described in Annex 1 hereto, Customer acts as a Business or Controller, and Kanerika acts as a Service Provider or Processor. This Addendum shall apply solely to the Processing of Customer Personal Data by Kanerika acting as a Processor, Subprocessor, or Third Party (as specified in Annex 1).

2.2 The Parties expressly agree that Customer shall be solely responsible for ensuring timely communications to Customer’s Affiliates or the relevant Controller(s) who receive the Services, insofar as such communications may be required or useful in light of applicable Data Protection Laws to enable Customer’s Affiliates or the relevant Controller(s) to comply with such Laws.

3. Description and Purpose of Personal Data Processing

3.1 In Annex 1 to this Addendum, the Parties have mutually set out their understanding of the subject matter and details of the Processing of the Customer Personal Data to be Processed by Kanerika pursuant to this Addendum. The Parties may make reasonable amendments to Annex 1 on mutual written agreement and as reasonably necessary to meet those requirements. Annex 1 does not create any obligation or rights for any Party.

3.2 The purpose of Processing under this Addendum is the provision of the Services pursuant to the Agreement and any Order Form(s).

4. Data Processing Terms

4.1 Customer shall comply with all applicable Data Protection Laws in connection with the performance of this Addendum and the Processing of Customer Personal Data. In connection with its access to and use of the Services, Customer shall Process Customer Personal Data within such Services and provide Kanerika with instructions in accordance with applicable Data Protection Laws. As between the Parties, Customer shall be solely responsible for compliance with applicable Data Protection Laws regarding the collection of and transfer to Kanerika of Customer Personal Data. Customer agrees not to provide Kanerika with any data concerning a natural person’s health, religion or any special categories of data as defined in Article 9 of the GDPR.

4.2 Kanerika shall comply with all applicable Data Protection Laws in the Processing of Customer Personal Data and Kanerika shall:

A. Process the Customer Personal Data for the purposes of the Agreement and for the specific purposes in each case as set out in Annex 1 to this Addendum and otherwise solely on the documented instructions of Customer, for the purposes of providing the Services and as otherwise necessary to perform its obligations under the Agreement. The Agreement, this Addendum, and Customer’s use of the Services’ features and functionality are Customer’s written instructions to Kanerika in relation to Processing Customer Personal Data, including as follows:

1. Kanerika shall use, retain, disclose, or otherwise Process Customer Personal Data only on behalf of Customer and for the specific business purpose of providing the Services and in accordance with Customer’s instructions, including as described in the Agreement. Kanerika shall not Sell or Share Customer Personal Data, nor use, retain, disclose, or otherwise Process Customer Personal Data outside of its business relationship with Customer or for any other purpose (including Kanerika’s commercial purpose) except as required or permitted by law. Kanerika shall immediately inform Customer (a) if Kanerika determines that it is no longer able to meet its obligations under Data Protection Laws or (b) if, in Kanerika’s opinion, an instruction infringes applicable Data Protection Laws. Customer reserves the right to take reasonable and appropriate steps to ensure Graphite’s Processing of Customer Personal Data is consistent with Customer’s obligations under Data Protection Law and discontinue and remediate unauthorized use of Customer Personal Data;
2. Kanerika shall have rights to process Customer Personal Data solely (i) to the extent necessary to (a) perform the Business Purposes and its obligations under the Agreement; (b) operate, manage, test, maintain and enhance the Services including as part of its business operations; (c) to disclose aggregate statistics about the Services in a manner that prevents individual identification or re-identification of Customer Personal Data, including without limitation any individual device or individual person; and/or (d) protect the Services from a threat to the Services or Customer Personal Data; or (ii) if required by court order of a court or authorized governmental agency, provided that prior notice first be given to Customer; (iii) as otherwise expressly authorized by Customer;
3. Kanerika will not combine Customer Personal Data which Kanerika Processes on Customer’s behalf, with Personal Data which it receives from or on behalf of another person or persons, or collects from its own interaction with individual, provided that Graphite may combine personal information to perform any Business Purpose permitted or required under the Agreement to perform the Services;

B. implement and maintain measures designed to ensure that Kanerika personnel authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality unless disclosure is required by law or professional regulations;

C. implement and maintain the technical and organizational measures set out in the Agreement, and, 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, implement and maintain any further commercially reasonable and appropriate administrative, technical, and organizational measures designed to ensure a level of security appropriate to the risk of the Processing of Customer Personal Data in accordance with Article 32 of the GDPR, and specifically:

1. pseudonymization and encryption of Customer Personal Data;
2. ensuring ongoing confidentiality, integrity, availability and resilience of Kanerika’s processing systems and services that process Customer Personal Data;
3. restoring availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident; and
4. regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of the Customer Personal Data.

D. Customer hereby agrees that Kanerika is generally authorized to engage and appoint Sub-processors, and specifically the Sub-processors listed in Annex 2 hereto, subject to Kanerika’s:

1. notifying Customer at least thirty (30) calendar days in advance oof any intended changes or additions to its Sub-processors listed in Annex 2 by emailing notice of the intended change to Customer;
2. including data protection obligations in its contract with each Sub-processor that are materially the same as those set out in this Addendum; and
3. remaining liable to Customer for any failure by each Sub-processor to fulfill its obligations in relation to the Processing of the Customer Personal Data.

In relation to any notice received under section 4.2(d)(i), Customer shall have a period of 30 (thirty) days from the date of the notice to inform Kanerika in writing of any reasonable objection on data protection grounds to the use of that Sub-processor. The parties will then, for a period of no more than 30 (thirty) days from the date of Customer’s objection, work together in good faith to attempt to find a commercially reasonable solution for Customer which avoids the use of the objected-to Sub-processor. Where no such solution can be found, either Party may (notwithstanding anything to the contrary in the Agreement) terminate the relevant Services immediately on written notice to the other Party, without damages, penalty or indemnification whatsoever (but without prejudice to any fees incurred by Customer prior to termination);

E. to the extent legally permissible, promptly notify Customer in case of any legally binding requests (i.e., disclosures required by law, court order, or subpoena) for disclosure of Customer Personal Data by Kanerika. In case if it is not legally binding then Customer Personal Data would not be disclosed and Kanerika will notify the Customer of such request rejection. A record of all legally binding disclosure requests relating to Customer Personal Data shall be maintained.

F. to the extent legally permissible, promptly notify Customer of any communication from a Data Subject regarding the Processing of Customer Personal Data, or any other communication (including from a Supervisory Authority) relating to any obligation under the applicable Data Protection Laws in respect of the Customer Personal Data. Kanerika will not respond to any such request or complaint unless expressly authorized to do so by Customer or is otherwise required to respond under applicable Data Protection Laws. Taking into account the nature of the Processing, Kanerika will reasonably assist Customer (or the relevant Controller) by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s, Customer’s Affiliates’ or the relevant Controller(s)’ obligation to respond to requests for exercising the data subject’s rights laid down in Chapter Ill GDPR. Customer agrees to pay Kanerika for time and for out of pocket expenses incurred by Kanerika in connection with the performance of its obligations under this Section 4.2(e);

G. upon Kanerika becoming aware of a Personal Data Breach involving Customer Personal Data, notify Customer without undue delay, of any Personal Data Breach involving Customer Personal Data, such notice to include, to the extent reasonably available to Kanerika, all timely information reasonably required by Customer (or the relevant Controller) to comply with its data breach reporting obligations under the applicable Data Protection Laws. Kanerika shall further take all such measures and actions as are necessary to remedy or mitigate the effects of such Security Incident and shall keep Customer reasonably informed of developments concerning Customer Personal Data;

H. to the extent required by the applicable Data Protection Laws, provide reasonable assistance to Customer, Customer’s Affiliates’ or the relevant Controller(s)’ with its obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and information available to Kanerika; Customer agrees to pay Kanerika for time and for out of pocket expenses incurred by Kanerika in connection with any assistance provided in connection with Articles 35 and 36 of the GDPR;

I. cease Processing the Customer Personal Data upon the termination or expiry of the Agreement, and at option of Customer, Customer’s Affiliates or the relevant Controller(s) either return or delete (including by ensuring such data is in non-readable format) all copies of the Customer Personal Data Processed by Kanerika, unless (and solely to the extent and for such period as) applicable law requires Kanerika to retain some or all of the Customer Personal Data. Any such Customer Personal Data retained shall remain subject to the obligations of confidentiality set forth in the Agreement; and

J. Kanerika shall maintain the necessary records in support of demonstrating compliance with its obligations (as specified in the applicable contract) for the processing of Customer Personal Data carried out on behalf of the Customer.

K. make available to Customer all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections, by Customer, or an independent third party auditor mandated by Customer, provided that Customer gives Kanerika reasonable prior notice of its intention to audit, conducts its audit during Kanerika’s normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Kanerika’s operations. For the purposes of demonstrating compliance with this Addendum under this Section 4.2(i), the Parties agree that in the first instance, once per year during the term of the Agreement (except if and when required by instruction of a competent Supervisory Authority or where Customer believes a further audit is necessary due to a Personal Data Breach concerning Customer Personal Data suffered by Kanerika), Kanerika will provide to Customer responses to cybersecurity and other assessments and only where Customer cannot establish Kanerika’s compliance with this Addendum from Kanerika’s responses shall Customer request to inspect Kanerika’s processing operations. Customer agrees to pay Kanerika for time and for out of pocket expenses incurred by Kanerika in connection with assistance provided in connection with such audits, responses to cybersecurity and other assessments.

5. Restricted Transfers

5.1 The parties agree that when the transfer of Customer Personal Data from Customer and/or any of its Affiliates (as exporter) to Kanerika (as importer) is a Restricted Transfer and EU Area Law applies, the transfer shall be subject to the appropriate Controller to Processor SCCs, which shall be deemed incorporated into and form part of this Addendum as follows:

A. In relation to Customer Personal Data that is protected by the EU GDPR and processed by Kanerika on behalf of and under the instruction of Customer, the EU SCCs will apply completed as follows:

1. Module Two will apply (controller to processor transfers);
2. In Clause 7, the optional docking clause will apply;
3. In Clause 9, Option 2 will apply, and the time period for prior notice of sub-processor changes shall be as set out in Section 4.2(d) of this Addendum;
4. In Clause 11, the optional language will not apply;
5. In Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
6. In Clause 18(b), disputes shall be resolved before the courts of the Republic of Ireland;
7. Annex I of the EU SCCs shall be deemed completed with the information set out in Annex 1 to this Addendum; and
8. Annex II of the EU SCCs shall be deemed completed with the information set out in Section 4 of Annex 1 to this Addendum.

B. In relation to Customer Personal Data that is protected by the Swiss DPA, the EU SCCs shall apply in accordance with Section 5.1(a) of this Addendum, but with the following modifications:

1. Any references in the EU SCCs to “Regolation (EU) 2016/679” shall be interpreted as references to the Swiss DPA and the equivalent articles or sections therein;
2. Any references to “EU”, “Union”, “Member State”, and “Member State law” shall be interpreted as references to Switzerland and Swiss law, as the case may be;
3. Any references to the “competent supervisory authority” and “competent courts” shall be interpreted as references to the relevant data protection authority and courts in Switzerland; and
4. The Controller to Processor SCCs shall be governed by the laws of Switzerland and disputes shall be resolved before the competent Swiss Courts.

C. In relation to Customer Personal Data that is protected by the UK GDPR, the EU SCCs shall apply in accordance with Section 5.1(a) of this Addendum, but as modified and interpreted by the Part 2: Mandatory Clauses of the UK Addendum, which shall be incorporated into and form an integral part of this Addendum. Any conflict between the terms of the EU SCCs and the UK Addendum shall be resolved in accordance with Section 10 and Section 11 of the UK Addendum. In addition, tables 1 to 3 in Part 1 of the UK Addendum shall be completed respectively with the information set out in Annex I of this Addendum, and table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting both “Importer” and “Exporter”.

5.2 Kanerika shall not participate in any other Restricted Transfers of Customer Personal Data (whether as an importer or an exporter of the Customer Personal Data) unless the Restricted Transfer is made in compliance with applicable Data Protection Law and pursuant to the relevant Standard Contractual Clauses implemented between the relevant exporter and importer of the Customer Personal Data, as necessary in order to comply with applicable Data Protection Law.

6. Precedence

The provisions of this Addendum are supplemental to the provisions of the Agreement. In the event of any inconsistency between the provisions of this Addendum and the provisions of the Agreement, the provisions of this Addendum shall prevail. In the event that any provision of this Addendum and/or the Agreement contradicts, directly or indirectly, the Controller to Processor SCCs, the Controller to Processor SCCs will control.

7. Indemnity

7.1 To the extent permissible by law, Customer shall (a) defend Kanerika and its Affiliates (collectively, “Indemnified Parties”) from and against any and all claims, demands, suits, or proceedings made or brought against any of the Indemnified Parties by any third party (each, a “Claim”), and (b) indemnify and hold harmless the Indemnified Parties from and against any and all  losses, damages, liabilities, fines and administrative fines, penalties, settlements,  and costs and expenses of any kind (including, without limitation, reasonable legal, investigatory and consultancy fees and expenses) incurred or suffered by any of the Indemnified Parties, in each case arising from any breach by Customer of this Addendum or of its obligations under applicable Data Protection Laws. Kanerika may participate in the defense and/or settlement of a Claim under this Section 7.1 with counsel of its choosing at its own expense.

8. Severability

The Parties agree that, if any section or sub-section of this Addendum is held by any court or competent authority to be unlawful or unenforceable, it shall not invalidate or render unenforceable any other section of this Addendum.

9. Miscellaneous

9.1 The Addendum considers the following and follows:

• Privacy by Design and default
• Achieving security of Processing
• Notification of breaches involving Customer Personal Data to the relevant Supervisory Authority
• Notification of breaches involving Customer Personal Data to Customer
• Conducting Privacy Impact Assessment where appropriate and required by applicable Data Protection Law
• Assurance of Kanerika’s assistance by if prior consultations with relevant Supervisory Authorities are needed and required by applicable Data Protection Laws.

9.2 Kanerika shall comply with all statutory and regulatory requirements, ISO 27001:2022, ISO 27701:2019 and EU GDPR

9.3 In the event a Data Subject wishes to exercise its data subject rights under applicable Data Protection Law, including, but not limited to, a data subject’s right of access, correction and/or erasure of its Personal Data in Kanerika’s control, the Data Subjects can submit such request done by contacting Kanerika’s Data Protection Officer (DPO) below. Also for raising concerns and/or any complaints related to the Customer Personal Data that can be done by contacting the Information Security Group in the following email:

Email ID: isg@kanerika.com

9.4 There are no Temporary files getting generated during processing.