Data Processing Addendum

Effective as of October 1, 2022

This Data Processing Addendum (the “DPA”) forms part of the online Master Subscription Agreement available at https://productiv.com/legal/msa/ (the “Agreement”) between Productiv, Inc. (“Productiv”) and the party identified as “Customer” in the Agreement and reflects the parties’ agreement with respect to the Processing of Personal Data (defined below) by Productiv on behalf of Customer in connection with the Services under the Agreement. In the case of any conflict or inconsistency with the terms of the Agreement, the terms of this DPA will supersede and control with respect to the Processing of Personal Data. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Authorized Affiliates, if and to the extent Productiv processes Personal Data (defined below) for which such Authorized Affiliates qualify as the Controller (defined below). 

In the course of providing the Services to Customer pursuant to the Agreement, Productiv may Process (defined below) Personal Data on behalf of Customer and the parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith. 

1. Definitions.
   1. “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws, and (b) is permitted to use the Services pursuant to the Agreement.
   2. “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act, and their implementing regulations.
   3. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
   4. “Data Protection Laws” means all applicable laws and regulations of the European Union, the European Economic Area and their member states (the “EEA”), Switzerland, the United Kingdom and the United States applicable to the Processing of Personal Data under the Agreement, including CCPA. 
   5. “Data Subject” means the identified or identifiable person to whom Personal Data relates. 
   6. “GDPR” means (a) 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) (“EU GDPR”) and (b) the EU 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 (the “UK GDPR”). 
   7. “International Data Transfer” means any transfer of Personal Data from the EEA, Switzerland or the United Kingdom to an international organization or to a country outside of the EEA, Switzerland and the United Kingdom;
   8. “Personal Data” means any information relating to an identified or identifiable natural person where such data is Customer Data. 
   9. “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
   10. “Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA. 
   11. “Public Authority” means a government agency or law enforcement authority, including judicial authorities.
   12. “Security Practices” means the Productiv Security Practices found at https://productiv.com/legal/security-practices/.
   13. “Services” means the SaaS Intelligence platform, analytics and services provided by Productiv. Services excludes Non-Productiv Applications. 
   14. “Standard Contractual Clauses” means Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by EC Commission Implementing Decision of 4 June 2021, as may be updated or amended from time to time. 
   15. “Subprocessor” means any Processor engaged by Productiv or an Affiliate of Productiv engaged in the Processing of Personal Data. 
   16. “UK Addendum” means the International Data Transfer Addendum to the Standard Contractual Clauses issued by the UK Information Commissioner’s Office under S.119A of the UK Data Protection Act 2018, as may be updated or amended from time to time.
2. Processing of Personal Data.
   1. Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is a Controller or a Processor, and Productiv is a Processor. 
   2. Customer’s Processing of Personal Data. Customer shall use the Services to Process Personal Data in accordance with the applicable requirements of Data Protection Laws. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. 
   3. Productiv’s Processing of Personal Data. Productiv shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Authorized Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement. 
   4. Details of the Processing. The subject-matter of Processing of Personal Data by Productiv is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of Processing) to this DPA. 
   5. CCPA.  It is the parties’ intent that Productiv is a Service Provider (as defined under the CCPA), and Productiv certifies that it will not (a) “sell” (as defined in the CCPA) any Personal Data; (b) retain, use, or disclose the Personal Data for any purpose other than performing Services under the Agreement; or (c) retain, use, or disclose Personal Data outside of the direct business relationship between Productiv and Customer; and (d) combine Personal Data which the Productiv receives from or on behalf of the Customer, with personal information which Productiv receives from or on behalf of another person or persons, or collects from its own interaction with the Data Subject, except as expressly permitted under CCPA.  Customer may monitor the Productiv’s compliance with this DPA through measures including, but not limited to, ongoing manual reviews and automated scans, and regular assessments, audits, or other technical and operational testing at least once every twelve (12) months.
3. Rights of Data Subjects. Productiv shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or request it has received from a Data Subject such as a Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request”. Productiv shall not respond to a Data Subject Request itself, except that Customer authorizes Productiv to redirect the Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Productiv shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Productiv shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Productiv is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from Productiv’s provision of such assistance. 
4. Productiv Personnel.
   1. Confidentiality. Productiv shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Productiv shall ensure that such confidentiality obligations survive the termination of the personnel engagement. 
   2. Reliability. Productiv shall take commercially reasonable steps to ensure the reliability of any Productiv personnel engaged in the Processing of Personal Data. 
   3. Limitation of Access. Productiv shall ensure that Productiv’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
5. Sub-processors. 
   1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Productiv’s Affiliates may be retained as Sub-processors; and (b) Productiv and Productiv’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Prior to providing any access to Personal Data, Productiv or a Productiv Affiliate has entered into a written agreement with each Subprocessor containing, in substance, data protection obligations no less protective than those in the Agreement with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. 
   2. List of Current Authorized Sub-processors and Notification of New Sub-processors. The current list of authorized Subprocessors that may be engaged in Processing Personal Data, including a description of their authorized processing activities and countries of location, is listed at https://productiv.com/legal/data-sub-processors/. Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. Customer may subscribe to receive notifications of new Sub-processors at https://productiv.com/legal/data-sub-processors/, and if Customer subscribes, Productiv shall provide notification of a new Subprocessor(s) before authorizing any new Subprocessor(s) to Process Personal Data in connection with the provision of the applicable Services. 
   3. Objection Right for New Sub-processors. Customer may object to Productiv’s use of a new Subprocessor by notifying Productiv promptly in writing within thirty (30) days of receipt of Productiv’s notice in accordance with the mechanism set out in section 5(b). If Customer objects to a new Subprocessor as permitted in the preceding sentence, Productiv will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Subprocessor without unreasonably burdening Customer. If Productiv is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Customer may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by Productiv without the use of the objected-to new Subprocessor by providing written notice to Productiv. Productiv will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer. 
   4. Liability. Productiv shall be liable for the acts and omissions of its Sub-processors to the same extent Productiv would be liable if performing the services of each Subprocessor directly under the terms of this DPA, unless otherwise set forth in the Agreement. 
6. Audit.  Upon reasonable request, Productiv must make available to Customer all information necessary to demonstrate compliance with the obligations of this DPA and allow for and contribute to audits, including inspections, as mandated by a Public Authority or reasonably requested no more than once a year by Customer and performed by an independent auditor as agreed upon by Customer and Productiv. The foregoing shall only extend to those documents and facilities relevant and material to the Processing of Personal Data, and shall be conducted during normal business hours and in a manner that causes minimal disruption.  Productiv will inform Customer if Productiv believes that Customer’s instruction under this Section infringes Data Protection Law. Productiv may suspend the audit or inspection, or withhold requested information until Productiv has modified or confirmed the lawfulness of the instructions in writing.  Productiv and Customer each bear their own costs related to an audit.  
7. Data Security and Incident Notification. 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, Productiv will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including the measures set forth in Security Practices.  In addition, Productiv maintains security incident management policies and procedures and shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by Productiv or its Sub-processors (a “Customer Data Incident”). Productiv shall make reasonable efforts to identify the cause of such Customer Data Incident and take such steps as Productiv deems necessary and reasonable to remediate the cause of such a Customer Data Incident to the extent the remediation is within Productiv’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Authorized Users.
8. Government Access Requests. In its role as a Processor, Productiv shall maintain appropriate measures to protect Personal Data in accordance with the requirements of Data Protection Laws, including by implementing appropriate technical and organizational safeguards to protect Personal Data against any interference that goes beyond what is necessary in a democratic society to safeguard national security, defense and public security. If Productiv receives a legally binding request to access Personal Data from a Public Authority, Productiv shall, unless otherwise legally prohibited, promptly notify Customer including a summary of the nature of the request. To the extent Productiv is prohibited by law from providing such notification, Productiv shall use commercially reasonable efforts to obtain a waiver of the prohibition to enable Productiv to communicate as much information as possible, as soon as possible. Further, Productiv shall challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful. Notwithstanding the above, (a) Customer acknowledges that such challenge may not always be reasonable or possible in light of the nature, scope, context and purposes of the intended government authority access, and (b) this DPA shall not require Productiv to pursue action or inaction that could result in civil or criminal penalty for Productiv such as contempt of court. In the event Productiv does not or cannot challenge the request, Productiv shall notify Customer, as soon as possible, following the access by the government authority, and provide Customer with relevant details of the same, unless and to the extent legally prohibited to do so.
9. Return and Deletion of Customer Data. Productiv shall return or delete Personal Data in accordance with the procedures and timeframes specified in the Agreement. Until Personal Data is deleted or returned, Productiv shall continue to comply with this DPA and its Schedules. 
10. Authorized Affiliates. 
    1. Contractual Relationship. The parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller.” 
    2. Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Productiv under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates. 
    3. Rights of Authorized Affiliates. Where Customer enters into this DPA on behalf of an Authorized Affiliate, such Authorized Affiliate shall, to the extent required under applicable Data Protection Laws, be entitled to exercise the rights and seek remedies under this DPA, subject to the following: 
       1. Except where applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Productiv directly by itself, the parties agree that (x) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (y) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA, not separately for each Authorized Affiliate individually, but in a combined manner for itself and all of its Authorized Affiliates together. 
       2. The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an On-Site Audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on Productiv and its Sub-processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.
11. Limitation of Liability. Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement. 
12. International Data Transfers
13. 1. Authorization.  Customer hereby authorizes Productiv to carry out International Data Transfers with respect to Personal Data in accordance with Data Protection Law.
    2. EEA Transfers. To the extent required under Data Protection Law for the International Data Transfer of Personal Data originating in the EEA from Customer to Productiv, by signing this DPA, Customer and Productiv hereby enter into Module 2 (Controller to Processor) of the Standard Contractual Clauses, which are hereby incorporated by reference and completed as follows: the “data exporter” is Customer; the “data importer” is Productiv; the optional docking clause in Clause 7 is implemented; Clause 9(a) option 2 is implemented and the time period therein is specified as thirty 30 days; the optional redress clause in Clause 11(a) is struck; Clause 17 option 1 is implemented and the governing law is the law of Ireland; the court in Clause 18(b) are the Courts of Ireland; Annex 1 and 2 of the Standard Contractual Clauses are Schedule 1 and Schedule 2 to this DPA respectively. 
    3. United Kingdom Transfers.  The UK Addendum will be applicable to any International Data Transfers originating in the United Kingdom and is completed as follows: for the purpose of table 1 of part 1, the exporter is Productiv and the importer is Customer and the table is deemed to be completed with the information set out in Schedule 1. For the purpose of table 2 of part 1, the “Approved EU SCCs” which the UK Addendum is appended to are the Standard Contractual Clauses incorporated into this DPA and completed as set out in the foregoing paragraph. For the purpose of table 3 of part 1, the information requested in Annex 1 and 2 of the Standard Contractual Clauses is provided in Schedule 1 and Schedule 2 to this DPA respectively and the list of Sub-processors is listed at https://productiv.com/legal/data-sub-processors/. For the purpose of table 4 of part 1, the importer may end the UK Addendum as set out in section 19 of the UK Addendum. 
    4. Change in Data Protection Laws.  If Productiv’s compliance with Data Protection Law applicable to International Data Transfers is affected by circumstances outside of Productiv’s control, including circumstances affecting the validity of an applicable legal instrument, Productiv and Customer will work together in good faith to reasonably resolve such non-compliance.
14. Miscellaneous.  This DPA may only be modified by a written amendment by Productiv with notice given to the Customer.  If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.

SCHEDULE 1

DETAILS OF PROCESSING

A. LIST OF PARTIES

B. DESCRIPTION OF PROCESSING/ TRANSFER

Schedule 2

Productiv Security Practices

The full text of Productiv’s technical and organizational security measures to protect Customer Data is available at https://productiv.com/legal/security-practices/.

Where applicable, this Schedule 2 will serve as Annex 2 to the Standard Contractual Clauses.