Archive: DPA

Effective 11/27/2021 through 9/30/2022

DATA PROCESSING ADDENDUM

This Data Processing Addendum (the “DPA”) forms part of the online Master Subscription Agreement available at https://productiv.com/terms-of-service/ (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 and Regulations (defined below), in the name and on behalf of its Authorized Affiliates, if and to the extent Productiv processes Personal Data for which such Authorized Affiliates qualify as the Controller (defined below). 

DATA PROCESSING TERMS

1. Definitions.
   1. “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations, 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., and its implementing regulations.
   3. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
   4. “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states, applicable to the Processing of Personal Data under the Agreement. 
   5. “Data Subject” means the identified or identifiable person to whom Personal Data relates. 
   6. "Europe" means the European Union, the EEA, Switzerland and the United Kingdom.  
   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), including as implemented or adopted under the laws of 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. “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 currently set out at http://data.europa.eu/eli/dec_impl/2021/914/oj.
   13.  “Sub-processor” means any Processor engaged by Productiv or an Affiliate of Productiv engaged in the Processing of Personal Data.
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 and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. 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 3 (Description of Processing/Transfer) to this DPA.
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 and Regulations. 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 and Regulations. 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 Sub-processor 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 Sub-processor. 
   2. Current List of Authorized Sub-processors and Notification of New Sub-processors. The current list of authorized Sub-processors that may be engaged in Processing Personal Data, including a description of their authorized processing activities and countries of location, is listed in Schedule 1 (Current List of Sub-processors). Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. Customer can send an email at [email protected] to subscribe to notifications of new Sub-processors, and if Customer subscribes, Productiv shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(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 Sub-processor 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 Sub-processor 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 Sub-processor 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 Sub-processor 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 Sub-processor directly under the terms of this DPA, unless otherwise set forth in the Agreement.
6. Audit. 
   1. Third-Party Certifications and Audits. Productiv has obtained the third-party certifications and audits set forth in the Agreement for each applicable Service. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Productiv shall make available to Customer (or Customer’s Third-Party Auditor, defined below) information regarding Productiv’s compliance with the obligations set forth in this DPA in the form of a copy of Productiv’s then most recent third-party audits or certifications set forth in the Agreement. Such third-party audits or certifications may also be shared with Customer’s competent supervisory authority on its request. Where Productiv has obtained SOC2 Information Security Management System reports for a particular Service, Productiv agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Order Term. 
   2. On-Site Audit. Customer may contact Productiv to request an on-site audit of Productiv’s Processing activities covered by this DPA (an “On-Site Audit”). An On-Site Audit may be conducted by Customer either itself or through a Third-Party Auditor selected by Customer when: (i) the information available pursuant to section “Third-Party Certifications and Audits” is not sufficient to demonstrate compliance with the obligations set out in this DPA and its Schedules; (ii) Customer has received a notice from Productiv of a Customer Data Incident (defined below); or (iii) such an audit is required by Data Protection Laws and Regulations or by Customer’s competent supervisory authority. Any On-Site Audits will be limited to Customer Data Processing and storage facilities directly operated by Productiv or any of Productiv’s Affiliates. Customer acknowledges that Productiv operates a multi-tenant cloud environment. Accordingly, Productiv shall have the right to reasonably adapt the scope of any On-Site Audit to avoid or mitigate risks with respect to confidentiality of other Productiv customers’ information. 
   3. Reasonable Exercise of Rights. An On-Site Audit shall be conducted by Customer or its Third-Party Auditor: (i) acting reasonably, in good faith, and in a proportional manner, taking into account the nature and complexity of the Services used by Customer; (ii) up to one time per year with at least three weeks’ advance written notice. If an emergency justifies a shorter notice period, Productiv will use good faith efforts to accommodate the On-Site Audit request; and (iii) during Productiv’s normal business hours, under reasonable duration and shall not unreasonably interfere with Productiv’s day-to-day operations. Before any On-Site Audit commences, Customer and Productiv shall mutually agree upon the scope, timing, and duration of the audit. 
   4. Third-Party Auditor. A “Third Party Auditor” means a third-party independent contractor that is not a competitor of Productiv. An On-Site Audit can be conducted through a Third Party Auditor if: (i) prior to the On-Site Audit, the Third Party Auditor enters into a non-disclosure agreement containing confidentiality provisions no less protective than those set forth in the Agreement to protect Productiv’s proprietary information; and (ii) the costs of the Third Party Auditor are at Customer’s expense. 
   5. Findings. Customer must promptly provide Productiv with information regarding any non-compliance discovered during the course of an On-Site Audit. 
   6. Data Protection Impact Assessment. Upon Customer’s request, Productiv shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Productiv.
7. Customer Data Incident Management and Notification. 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 and Regulations, 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 and Regulations, be entitled to exercise the rights and seek remedies under this DPA, subject to the following: 
       1. Except where applicable Data Protection Laws and Regulations 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. Europe-Specific Provisions.
    1. Definitions. For the purposes of this section 12 and Schedule 2, these terms shall be defined as follows: 
       1. "EU C-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Two (Controller-to-Processor). 
       2. "EU P-to-P Transfer Clauses" means Standard Contractual Clauses sections I, II, III and IV (as applicable) to the extent they reference Module Three (Processor-to-Processor). 
    2. GDPR. Productiv will Process Personal Data in accordance with the GDPR requirements applicable to Productiv’s provision of its Services. 
    3. Customer Instructions. Productiv shall inform Customer immediately (i) if, in its opinion, an instruction from Customer constitutes a breach of the GDPR and/or (ii) if Productiv is unable to follow Customer’s instructions for the Processing of Personal Data. 
    4. Transfer mechanisms for data transfers. If, in the performance of the Services, Personal Data that is subject to the GDPR or any other law relating to the protection or privacy of individuals that applies in Europe is transferred out of Europe to countries which do not ensure an adequate level of data protection within the meaning of the Data Protection Laws and Regulations of Europe, the transfer mechanisms listed below shall apply to such transfers. Such mechanisms are hereby incorporated into this DPA and can be directly enforced by the Parties to the extent such transfers are subject to the Data Protection Laws and Regulations of Europe: 
       1. The EU C-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Controller and a data exporter of Personal Data and Productiv is a Processor and data importer in respect of that Personal Data, then the Parties shall comply with the EU C-to-P Transfer Clauses, subject to the additional terms in section 1 of Schedule 2; and/or 
       2. The EU P-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Processor acting on behalf of a Controller and a data exporter of Personal Data and Productiv is a Processor and data importer in respect of that Personal Data, the Parties shall comply with the terms of the EU P-to-P Transfer Clauses, subject to the additional terms in sections 1 and 2 of Schedule 2. 
    5. Impact of local laws. As of the Effective Date, Productiv has no reason to believe that the laws and practices in any third country of destination applicable to its Processing of Personal Data, including any requirements to disclose Personal Data or measures authorising access by a Public Authority, prevent Productiv from fulfilling its obligations under this DPA. If Productiv reasonably believes that any existing or future enacted or enforceable laws and practices in the third country of destination applicable to its Processing of the Personal Data (“Local Laws”) prevent it from fulfilling its obligations under this DPA, it shall promptly notify Customer. In such a case, Productiv shall use reasonable efforts to make available to the affected Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to facilitate compliance with the Local Laws without unreasonably burdening Customer. If Productiv is unable to make available such change promptly, Customer may terminate the applicable Order Form(s) and suspend the transfer of Personal Data in respect only to those Services which cannot be provided by Productiv in accordance with the Local Laws by providing written notice in accordance with the “Notices” section of the Agreement. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination for such terminated Services.

List of Schedules
Schedule 1: Current List of Authorized Sub-processors
Schedule 2: Transfer Mechanisms for European Data Transfers
Schedule 3: Description of Processing/Transfer

Schedule 1 

Current List of Authorized Sub-processors

Productiv Affiliate Sub-processors

Depending on the geographic location of a Customer or their Authorized Users, and the nature of the Services provided, Productiv may also engage one or more of its Affiliates as Sub-processors to deliver some or all of the Services provided to a Customer. The following entities are currently Affiliates of Productiv that may be engaged as Sub-processors to Process Personal Data. 

Schedule 2

Transfer Mechanisms for European Data Transfers 

1. Standard Contractual Clauses Operative Provisions and Additional Terms

For the purposes of the EU C-to-P Transfer Clauses and the EU P-to-P Transfer Clauses, Customer is the data exporter and Productiv is the data importer and the parties agree to the following. Where this Schedule 2 does not explicitly mention EU C-to-P Transfer Clauses or EU P-to-P Transfer Clauses it applies to both of them.

1. Reference to the Standard Contractual Clauses. The relevant provisions contained in the Standard Contractual Clauses are incorporated by reference and are an integral part of this DPA. The information required for the purposes of the Appendix to the Standard Contractual Clauses are set out in Schedule 3. 
2. Docking clause. The option under clause 7 shall not apply. 
3. Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions as of the Effective Date of the Agreement. Any additional or alternate instructions must be consistent with the terms of this DPA and the Agreement. For the purposes of clause 8.1(a), the instructions by Customer to Process Personal Data are set out in section 2(c) of this DPA and include onward transfers to a third party located outside Europe for the purpose of the performance of the Services. 
4. Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in clause 8.5 and 16(d) of the Standard Contractual Clauses shall be provided by Productiv to Customer only upon Customer's written request. 
5. Security of Processing. For the purposes of clause 8.6(a), Customer is solely responsible for making an independent determination as to whether the technical and organisational measures set forth in the Agreement meets Customer’s requirements and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the Processing of its Personal Data as well as the risks to individuals) the security measures and policies implemented and maintained by Productiv provide a level of security appropriate to the risk with respect to its Personal Data. For the purposes of clause 8.6(c), personal data breaches will be handled in accordance with section 7 (Customer Data Incident Management and Notification) of this DPA. 
6. Audits of the SCCs. The parties agree that the audits described in clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with section 6(b) of this DPA. 
7. General authorisation for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Productiv has Customer’s general authorisation to engage Sub-processors in accordance with section 5 of this DPA. Productiv shall make available to Customer the current list of Sub-processors in accordance with section 5(b) of this DPA. Where Productiv enters into the EU P-to-P Transfer Clauses with a Sub-processor in connection with the provision of the Services, Customer hereby grants Productiv and Productiv’s Affiliates authority to provide a general authorisation on Controller's behalf for the engagement of sub-processors by Sub-processors engaged in the provision of the Services, as well as decision making and approval authority for the addition or replacement of any such sub-processors. 
8. Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Productiv may engage new Sub-processors as described in sections 5(b) and 5(c) of this DPA. Productiv shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5(b) of this DPA. For the purposes of clause 11, and subject to section 3 of this DPA, Productiv shall inform data subjects on its website of a contact point authorised to handle complaints. Productiv shall inform Customer if it receives a complaint by, or a dispute from, a Data Subject with respect to Personal Data and shall without undue delay communicate the complaint or dispute to Customer. Productiv shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer). The option under clause 11 shall not apply. 
9. Liability. Productiv's liability under clause 12(b) shall be limited to any damage caused by its Processing where Productiv has not complied with its obligations under the GDPR specifically directed to Processors, or where it has acted outside of or contrary to lawful instructions of Customer, as specified in Article 82 GDPR. 
10. Supervision. Clause 13 shall apply as follows: 
    1. Where Customer is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by Customer with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. 
    2. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority. 
    3. Where Customer is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the Data Protection Commission, 21 Fitzwilliam Square, Dublin 2, D02 RD28, Ireland, shall act as competent supervisory authority. 
    4. Where Customer is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as competent supervisory authority. 
    5. Where Customer is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.
11. Notification of Government Access Requests. For the purposes of clause 15(1)(a), Productiv shall notify Customer and not the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying the Data Subject as necessary. 
12. Governing Law. These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland. Where required by the laws of the United Kingdom in respect of transfers from that jurisdiction, the laws of England and Wales shall govern the Clauses.
13. Choice of forum and jurisdiction. The courts under clause 18 shall be those designated in the Venue section of the Agreement. If the Agreement does not designate an EU Member State court as having exclusive jurisdiction to resolve any dispute or lawsuit arising out of or in connection with this DPA, the parties agree that the courts of Ireland shall have exclusive jurisdiction. Where required by the laws of the United Kingdom in respect of transfers from that jurisdiction, the courts of England and Wales, shall have jurisdiction to resolve any dispute arising from the Clauses.
14. Appendix. The Appendix shall be completed as follows:
    1. The contents of section 1 of Schedule 3 shall form Annex I.A to the Standard Contractual Clauses
    2. The contents of sections 2 to 9 of Schedule 3 shall form Annex I.B to the Standard Contractual Clauses 
    3. The contents of section 10 of Schedule 3 shall form Annex I.C to the Standard Contractual Clauses 
    4. The contents of section 11 of Schedule 3 shall form Annex II to the Standard Contractual Clauses.
15. Data Exports from the United Kingdom and Switzerland under the Standard Contractual Clauses. In case of any transfers of Personal Data from the United Kingdom and/or transfers of Personal Data from Switzerland subject exclusively to the Data Protection Laws and Regulations of Switzerland (“Swiss Data Protection Laws”), (i) general and specific references in the Standard Contractual Clauses to GDPR or EU or Member State Law shall have the same meaning as the equivalent reference in the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws”) or Swiss Data Protection Laws, as applicable; and (ii) any other obligation in the Standard Contractual Clauses determined by the Member State in which the data exporter or Data Subject is established shall refer to an obligation under UK Data Protection Laws or Swiss Data Protection Laws, as applicable. In respect of data transfers governed by Swiss Data Protection Laws, the Standard Contractual Clauses also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity. 
16. Conflict. The Standard Contractual Clauses are subject to this DPA and the additional safeguards set out hereunder. The rights and obligations afforded by the Standard Contractual Clauses will be exercised in accordance with this DPA, unless stated otherwise. In the event of any conflict or inconsistency between the body of this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail. 

2. Additional Terms for the EU P-to-P Transfer Clauses. For the purposes of the EU P-to-P Transfer Clauses (only), the Parties agree the following. 
   1. Instructions and notifications. For the purposes of clause 8.1(a), Customer hereby informs Productiv that it acts as Processor under the instructions of the relevant Controller in respect of Personal Data. Customer warrants that its Processing instructions as set out in the Agreement and this DPA, including its authorizations to Productiv for the appointment of Sub-processors in accordance with this DPA, have been authorized by the relevant Controller. Customer shall be solely responsible for forwarding any notifications received from Productiv to the relevant Controller where appropriate. 
   2. Security of Processing. For the purposes of clause 8.6(c) and (d), Productiv shall provide notification of a personal data breach concerning Personal Data Processed by Productiv to Customer. 
   3. Documentation and Compliance. For the purposes of clause 8.9, all enquiries from the relevant Controller shall be provided to Productiv by Customer. If Productiv receives an enquiry directly from a Controller, it shall forward the enquiry to Customer and Customer shall be solely responsible for responding to any such enquiry from the relevant Controller where appropriate. 
   4. Data Subject Rights. For the purposes of clause 10 and subject to section 3 of this DPA, Productiv shall notify Customer about any request it has received directly from a Data Subject without obligation to handle it (unless otherwise agreed), but shall not notify the relevant Controller. Customer shall be solely responsible for cooperating with the relevant Controller in fulfilling the relevant obligations to respond to any such request.

Schedule 3

Description of Processing/Transfer

1. List of Parties.
   Data exporter(s):
   
   Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European UnionName: Customer and its Authorized Affiliates.Address: Set forth in the Agreement, including any Order FormsContact person’s name, position and contact details: Set forth in the Agreement, including any Order FormsActivities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement and as further described in the Documentation.
   Role: For the purposes of the EU C-to-P Transfer Clauses Customer and/or its Authorized Affiliate is a Controller. For the purposes of the EU P-to-P Transfer Clauses Customer and/or its Authorized Affiliate is a Processor.Data importer(s):Identity and contact details of the data importer(s), including any contact person with responsibility for data protectionName: Productiv, Inc.Address: 658 High St., Palo Alto, CA 94301Contact person’s name, position and contact details: Adam Turkel, General Counsel,  [email protected]

   Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement and as further described in the Documentation.

2. Categories of Data Subjects Whose Personal Data is Transferred. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:Employees, agents, advisors, and freelancers of Customer (who are natural persons)
3. Categories of personal data transferred. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: 
   1. First and last name 
   2. Title 
   3. Position 
   4. Employer 
   5. Contact information (company, email, phone, physical business address) 
   6. SaaS application usage
4. Sensitive data transferred (if applicable).
   Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:The parties do not anticipate the transfer of special categories of data.
5. Frequency of the Transfer. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous basis depending on the use of the Services by Customer.
6. Nature of the Processing. The nature of the Processing is the performance of the Services pursuant to the Agreement.
7. Purpose of the Processing, the Data Transfer and Further Processing. Productiv will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
8. Duration of Processing.
   The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:Subject to section 9 of the DPA, Productiv will Process Personal Data for the duration specified in the Agreement, unless otherwise agreed upon in writing.
9. Sub-processor Transfers. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:The Sub-processors, their activities and locations are set out in Schedule 1 or as otherwise notified to Customer.As per section 7 above, the Sub-processors will Process Personal Data as necessary to perform the Services pursuant to the Agreement. Subject to section 9 of this DPA, the Sub-processors will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
10. Competent Supervisory Authority.
    Identify the competent supervisory authority/ies in accordance with clause 13:
    1. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority. 
    2. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as the competent supervisory authority. 
    3. Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: the Data Protection Commission, 21 Fitzwilliam Square, Dublin 2, D02 RD28, Ireland, shall act as competent supervisory authority. 
    4. Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as the competent supervisory authority. 
    5. Where the data exporter is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.
11. Technical and Organizational Measures. Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Agreement. Data Importer will not materially decrease the overall security of the Services during an Order Term. Data Subject Requests shall be handled in accordance with section 3 of the DPA.