DATA PROCESSING ADDENDUM

THIS DATA PROCESSING ADDENDUM (together with the annexes and attachments hereto, this “DPA”) is incorporated into and forms part of any Terms of Use Agreement, or if applicable, any Enterprise Services Agreement (as amended, the “Agreement”) by and between any legal entity that is a party thereto and referred to therein as Customer, the user or “You” (the “Customer”) and Kubiya, Inc. (“Kubiya”).

  1. DEFINITIONS

Unless expressly stated otherwise, capitalized terms used in this DPA have the meanings given below or, if not defined, have the meanings given in the Agreement.  References to “including” mean “including, without limitation”.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise. 

“Applicable Data Protection Laws” means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to the Processing of Customer Personal Data under the Agreement, including GDPR and CCPA (as applicable).   

“CCPA” means the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (the “CPRA”), and any regulations promulgated thereunder. 

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Customer Personal Data” means any User Content, or if Customer is party to an Enterprise Services Agreement, any Customer Data that constitutes Personal Data..

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

“Data Subject Request” means the request of a Data Subject to exercise rights under Applicable Data Protection Laws in respect of Customer Personal Data in Kubiya’s possession, custody or control.

“EEA” means the European Economic Area.

“GDPR” means, as and where applicable to Processing concerned (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and/or (ii) the EU GDPR as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (as amended, including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR”), including, in each case (i) and (ii), any applicable national implementing or supplementary legislation (e.g., the UK Data Protection Act 2018), and any successor, amendment or re-enactment, to or of the foregoing. References to “Articles” and “Chapters” of, and other relevant defined terms in, the GDPR shall be construed accordingly.

“Personal Data” means “personal data,” “personal information,” “personally identifiable information” or similar terms defined in Applicable Data Protection Laws.

“Personal Data Breach” means a breach of Kubiya’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data in Kubiya’s possession, custody or control. 

“Process” and inflections thereof refer to any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated 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 and destruction.

“Processor” means a natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of the Controller.

“Restricted Transfer” means any disclosure, grant of access, or other transfer of Customer Personal Data to any person located in (i) in the context of the EEA, any country or territory outside the EEA which does not benefit from an adequacy decision from the European Commission described in Chapter 45 of the GDPR (an “EU Restricted Transfer”) and (ii) in the context of the UK, any country or territory outside the UK, which does not benefit from an adequacy decision from the UK Government (a “UK Restricted Transfer”), in each case, which would be prohibited without a legal basis under Chapter V of the GDPR.

“SCCs” means the standard contractual clauses approved by the European Commission pursuant to implementing Decision (EU) 2021/914, as populated in accordance with Part 1 of Attachment 1 to Annex 2 (European Annex).

“Services” means those services performed for Customer by Kubiya pursuant to the Agreement.

“Subprocessor” means any third party engaged directly or indirectly by or on behalf of Kubiya to Process Customer Personal Data under Kubiya’s care, custody or control.

“Supervisory Authority” means (i) in the context of the EEA and the EU GDPR, “supervisory authority” as defined in the EU GDPR; and (ii) in the context of the UK and the UK GDPR, means the UK Information Commissioner’s Office.

“UK Transfer Addendum” means the template Addendum B.1.0 issued by the ICO  under s119A of the Data Protection Act 2018, in force from 21 March 2022, as it is revised under Section 18 of the Mandatory Clauses included in Part 2 thereof (the “UK Mandatory Clauses”). 

  1. SCOPE OF THIS DATA PROCESSING ADDENDUM
    1. The Parties acknowledge and agree that the details of Kubiya’s Processing of Customer Personal Data (including the respective roles of the Parties relating to such Processing) are as described in  Annex 1 (Data Processing Details) to the DPA.
    2. The terms of this DPA apply to Kubiya’s Processing of Customer Personal Data to the extent Customer is subject to the GDPR, the CCPA or other Applicable Data Protection Laws requiring data protection terms to be included in contracts between Customer and its Processors.  Annex 2 (European Annex) to this DPA applies to Kubiya’s Processing of Customer Personal Data subject to the GDPR.  Annex 3 (California Annex) to this DPA applies to Kubiya’s Processing of Customer Personal Data subject to the CCPA.
  2. PROCESSING OF CUSTOMER PERSONAL DATA
    1. Kubiya shall not Process Customer Personal Data other than on Customer’s instructions or as required by applicable laws (or in the case of Customer Personal Data subject to the GDPR, the laws of the UK or European Union, as applicable, to which Kubiya is subject).  Customer instructs Kubiya to Process Customer Personal Data to provide the Services and as authorized by the Agreement.  The Agreement is a complete expression of such instructions, and Customer’s additional instructions will be binding on Kubiya only pursuant to an amendment to this DPA signed by both parties.  Where Kubiya receives an instruction from Customer that, in its reasonable opinion, infringes Applicable Data Protection Laws, Kubiya shall notify Customer.
    2. The Parties acknowledge that Kubiya’s Processing of Customer Personal Data authorized by Customer’s instructions stated in this DPA are integral to the Services and the business relationship between the Parties. Access to Personal Data does not form part of the consideration exchanged between the Parties in respect of the Agreement or any other business dealings.
  3. VENDOR PERSONNEL

Kubiya shall ensure that all Kubiya employees or other personnel who Process Customer Personal Data are subject to contractual or appropriate statutory obligations of confidentiality with respect to such Customer Personal Data.

  1. SECURITY

Kubiya shall implement and maintain technical, organizational and physical measures designed to protect the confidentiality, integrity and availability of Customer Personal Data and prevent Personal Data Breaches.  Such measures shall include the measures described in Annex 4 of this DPA (the “Security Measures”) and such other measures as are required by Applicable Data Protection Laws.  Kubiya may update the Security Measures from time to time, so long as the updated measures do not decrease in the aggregate the protection of Personal Data.

  1. DATA SUBJECT REQUESTS
    1. Kubiya, taking into account the nature of the Processing of Customer Personal Data, shall provide Customer with such assistance by appropriate technical and organizational measures as Customer may reasonably request to assist Customer in fulfilling its obligations under Applicable Data Protection Laws to respond to Data Subject Requests. 
    2. Kubiya shall promptly notify Customer if it receives a Data Subject Request and not respond to any Data Subject Request, other than to advise the Data Subject to submit the request to Customer, except as required by Applicable Data Protection Laws.
  2. PERSONAL DATA BREACHES
    1. Kubiya shall notify Customer of a Personal Data Breach without undue delay after becoming aware of the occurrence thereof.  Kubiya’s notification of or response to a Personal Data Breach will not be construed as Kubiya’s acknowledgement of any fault or liability with respect to the Personal Data Breach.
    2. If Customer determines that a Personal Data Breach must be notified to any Supervisory Authority or other governmental authority, any Data Subject(s), the public or others under Applicable Data Protection Laws in a manner that directly or indirectly refers to or identifies Kubiya, where permitted by applicable laws, Customer agrees to notify Kubiya in advance and in good faith consult with Kubiya and consider any clarifications or corrections Kubiya may reasonably recommend or request to any such notification.
  3. SUB-PROCESSING
    1. Customer generally authorizes Kubiya to appoint Subprocessors in accordance with this Section 8. Without limitation to the foregoing, Customer authorizes the engagement of the Subprocessors listed as of the effective date of the Agreement at the URL specified in 8.2. 
    2. Information about Subprocessors, including their functions and locations, is available at: _______ (as may be updated by Kubiya from time to time) or such other website address as Kubiya may provide to Customer from time to time (the “Subprocessor Site”).
    3. When engaging any Subprocessor, Kubiya will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Customer Personal Data to the extent applicable to the nature of the services provided by such Subprocessor.  Kubiya shall be liable for all obligations under the Agreement subcontracted to the Subprocessor or its actions and omissions related thereto. 
    4. When Kubiya engages any Subprocessor after the effective date of the Agreement, Kubiya will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the Subprocessor Site or by other written means at least 15 days before such Subprocessor Processes Customer Personal Data.  If Customer objects to such engagement in a written notice to Kubiya within 15 days after being notified of the engagement on reasonable grounds relating to the protection of Personal Data, Customer and Kubiya will work together in good faith to consider a mutually acceptable resolution to such objection.  If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement and cancel the Services by providing written notice to Kubiya and pay Kubiya for all amounts due and owing under the Agreement as of the date of such termination.
  4. COMPLIANCE ASSISTANCE; AUDITS
    1. Kubiya, taking into account the nature of the Processing and the information available to Kubiya, shall provide such information and assistance as Customer may reasonably request (insofar as such information is available to Kubiya and the sharing thereof does not compromise the security, confidentiality, integrity or availability of Personal Data Processed by Kubiya) to help Customer meet its obligations under Applicable Data Protection Laws, including in relation to the security of Customer Personal Data, the reporting and investigation of Personal Data Breaches, the demonstration of Customer’s compliance with such obligations, and the performance of any data protection assessments and consultations with Supervisory Authorities or other government authorities regarding such assessments in relation to Kubiya’s Processing of Customer Personal Data, including those required under Articles 35 and 36 of the GDPR.
    2. Kubiya shall make available to Customer such information as Customer may reasonably request for Kubiya to demonstrate compliance with Applicable Data Protection Laws and this DPA in relation to Kubiya’s Processing of Customer Personal Data.  Without limitation of the foregoing, Customer may conduct (in accordance with Section 9.3), at its sole cost and expense, and Kubiya will reasonably cooperate with, reasonable audits (including inspections, manual reviews, and automated scans and other technical and operational testing that Customer is entitled to perform under Applicable Data Protection Laws), in each case, whereby Customer or a qualified and independent auditor appointed by Customer using an appropriate and accepted audit control standard or framework may audit Kubiya’s technical and organizational measures in support of such compliance and the auditor’s report is provided to Customer and Kubiya upon Customer’s request. 
    3. Customer shall give Kubiya reasonable advance notice of any such audits.  Kubiya need not cooperate with any audit (a) performed by any individual or entity who has not entered into a non-disclosure agreement with Kubiya on terms acceptable to Kubiya in respect of information obtained in relation to the audit; (c) outside normal business hours; or (d) on more than one occasion in any calendar year during the term of the Agreement, except for any additional audits that Customer is required to perform under Applicable Data Protection Laws.  The audit must be conducted in accordance with Kubiya’s safety, security or other relevant policies, must not impact the security, confidentiality, integrity or availability of any data Processed by Kubiya and must not unreasonably interfere with Kubiya’s business activities.  Customer shall not conduct any scans or technical or operational testing of Kubiya’s applications, websites, Services, networks or systems without Kubiya’s prior approval (which shall not be unreasonably withheld). 
    4. If the controls or measures to be assessed in the requested audit are assessed in a SOC 2 Type 2, ISO, NIST or similar audit report performed by a qualified and independent third-party auditor pursuant to a recognized industry standard audit framework within twelve (12) months of Customer’s audit request (“Audit Report”) and Kubiya has confirmed in writing that there have been no known material changes to the controls audited and covered by such Audit Report(s), Customer agrees to accept provision of such Audit Report(s) in lieu of requesting an audit of such controls or measures.  Kubiya shall provide copies of any such Audit Reports to Customer upon request.   
    5. Such Audit Reports and any other information obtained by Customer in connection with an audit under this Section 9 shall constitute confidential information of Kubiya, which Customer shall use only for the purposes of confirming compliance with the requirements of this DPA or meeting Customer’s obligations under Applicable Data Protection Laws. Nothing in this Section 9 shall be construed to obligate Kubiya to breach any duty of confidentiality.  
  5. RETURN AND DELETION   
    1. Upon expiration or earlier termination of the Agreement, Kubiya shall return and/or delete all Customer Personal Data in Kubiya’s care, custody or control in accordance Customer’s instructions as to the post-termination return and deletion of Customer Data expressed in the Agreement, or subject to Section 11.5, Customer’s further instructions.  
    2. Notwithstanding the foregoing, Kubiya may retain Customer Personal Data where required by law (or in the case of Customer Personal Data subject to the GDPR, the laws of the UK or European Union, as applicable), provided that Kubiya shall (a) maintain the confidentiality of all such Customer Personal Data and (b) Process the Customer Personal Data only as necessary for the purpose(s) and duration specified in the applicable law requiring such retention.  
  6. CUSTOMER RESPONSIBILITIES
    1. Customer agrees that, without limiting Kubiya’s obligations under Section 5, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to maintain a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Kubiya uses to provide the Services; and (d) backing up Customer Data.
    2. Customer shall ensure that there is a valid legal basis for Kubiya’s Processing of Customer Personal Data in accordance with the Agreement for the purposes of Applicable Data Protection Laws (including Article 6, Article 9(2) and/or Article 10 of the GDPR where applicable).  Customer shall ensure (and is solely responsible for ensuring) that all required notices have been given to, and all consents and permissions have been obtained from, Data Subjects and others as are required, including under Applicable Data Protection laws, for Kubiya to Process Customer Personal Data as contemplated by the Agreement.
    3. Customer agrees that the Service, the Security Measures, and Kubiya’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Customer Personal Data.
    4. Customer shall ensure that Customer Personal Data made available to Kubiya for Processing does not contain any (a) Social Security numbers or other government-issued identification numbers; (b) biometric information; (c) passwords to any online accounts; (d) credentials to any financial accounts; (e) tax return data; (f) any payment card information subject to the Payment Card Industry Data Security Standard; (g) Personal Data of children under 16 years of age; (h) data relating to criminal convictions and offences or related security measures; or (i) information that constitutes special categories of personal data (as defined in the GDPR), sensitive personal information (as defined in the CCPA) or information of a similarly sensitive character regulated by Applicable Data Protection Laws.
    5. Except to the extent prohibited by applicable law, Customer shall compensate Kubiya at Kubiya’s then-current professional services rates for, and reimburse any costs reasonably incurred by Kubiya in the course of providing, cooperation, information or assistance requested by Customer pursuant to Sections 6, 9 and 10.1 of this DPA beyond Kubiya’s provision of any self-service tools as part of the Services that Customer can use to obtain the requested cooperation, information or assistance.
  7. PRECEDENCE

In the event of any conflict or inconsistency between (a) this DPA and the Agreement, this DPA shall prevail or (b) any SCCs entered into pursuant to Annex 2 (European Annex) and this DPA and/or the Agreement, the SCCs shall prevail in respect of the Restricted Transfer to which they apply.

Annex 1 – Data Processing Details

CUSTOMER / ‘DATA EXPORTER’ DETAILS

Name: As set out in the Agreement or applicable ordering document

Contact details for data protection: As set out in the Agreement or applicable ordering document

Customer Activities:  Software development operations (“DevOps”)

Role: Controller

PROVIDER / ‘DATA IMPORTER’ DETAILS

Name: Kubiya, Inc. 

Contact details for data protection: privacy@Kubiya.io

Kubiya Activities:  Kubiya of a software-as-a-service analytics platform to organizations’ DevOps teams

Role: Processor

DETAILS OF PROCESSING

Categories of Data Subjects: Users of Customer’s websites or other online services

Categories of Personal Data: Personal Data pertaining to Data Subjects’ use of and interaction with Customer’s websites or other online services

Sensitive Categories of Data, and associated additional restrictions/safeguards: Not applicable

Frequency of transfer: Continuous

Nature of the Processing: Processing operations required in order to provide the Services in accordance with the Agreement

Purpose of the Processing: Provide DevOps services, as more particularly described in the Agreement and comply with Customer instructions thereunder

Duration of Processing / Retention Period:  Concurrent with term of the Agreement and then thereafter pursuant to Section 10

Transfers to Subprocessors: Transfers to Subprocessors are as, and for the purposes, described from time to time in the Subprocessor List (as may be updated from time to time in accordance with the DPA).

Annex 2 – European Annex

  1. RESTRICTED TRANSFERS 
    1. General. The Parties acknowledge that Customer’s transmission of Customer Personal Data to Kubiya hereunder may involve a Restricted Transfer. The SCCs described in Paragraph 1.2 and/or 1.3 shall apply and have effect only if and to the extent permitted and required under the EU GDPR and/or UK GDPR (if and as applicable) to establish a valid basis under Chapter V of the EU GDPR and/or UK GDPR in respect of the transfer from Customer to Kubiya of Customer Personal Data.
  1. EU Restricted Transfers. To the extent that any Processing of Customer Personal Data under this DPA involves an EU Restricted Transfer from Customer to Kubiya, the Parties shall comply with their respective obligations set out in the SCCs, which are hereby deemed to be (a) populated in accordance with Part 1 of Attachment 1 to Annex 2 (European Annex); and (b) entered into by the Parties and incorporated by reference into this DPA. 
  2. UK Restricted Transfers. To the extent that any Processing of Customer Personal Data under this DPA involves a UK Restricted Transfer from Customer to Kubiya, the Parties shall comply with their respective obligations set out in the SCCs, which are hereby deemed to be (a) varied to address the requirements of the UK GDPR in accordance with UK Transfer Addendum and populated in accordance with Part 2 of Attachment 1 to Annex 2 (European Annex); and (b) entered into by the Parties and incorporated by reference into this DPA. As permitted by Section 17 of the UK Mandatory Clauses, the Parties agree that the manner of the presentation of the information included in the UK Transfer Addendum as set out in Part 2 of Attachment 1 to Annex 2 (European Annex) shall not operate or be construed so as to reduce the Appropriate Safeguards (as defined in the Mandatory Clauses)
  3. Provision of full-form SCCs.  In respect of any given Restricted Transfer, on Customer’s written request, Kubiya shall provide Customer with an executed version of the relevant set(s) of SCCs (amended and populated in accordance with Attachment 1 to Annex 2 (European Annex)) in respect of the relevant Restricted Transfer.
  1. OPERATIONAL CLARIFICATIONS
    1. When complying with its transparency obligations under Clause 8.3 of the SCCs, Customer agrees that it shall not provide or otherwise make available, and shall take all appropriate steps to protect, Kubiya’s and its licensors’ trade secrets, business secrets, confidential information and/or other commercially sensitive information.
    2. Where applicable, for the purposes of Clause 10(a) of Module Three of the SCCs, Customer acknowledges and agrees that there are no circumstances in which it would be appropriate for Kubiya to notify any third-party controller of any Data Subject Request and that any such notification shall be the sole responsibility of Customer.
    3. For the purposes of Clause 15.1(a) of the SCCs, except to the extent prohibited by applicable law and/or the relevant public authority, as between the Parties, Customer agrees that it shall be solely responsible for making any notifications to relevant Data Subject(s) if and as required.
    4. The terms and conditions of Section 8 apply in relation to Kubiya’s appointment and use of Subprocessors under the SCCs.
    5. Any approval by Customer of Kubiya’s appointment of a Subprocessor that is given expressly or deemed given pursuant to Section 8 constitutes Customer’s documented instructions to effect disclosures and onward transfers to any relevant Subprocessors if and as required under Clause 8.8 of the SCCs.
    6. The audits described in Clauses 8.9(c) and 8.9(d) of the SCCs shall be subject to any relevant terms and conditions detailed in Section 9. 
    7. Certification of deletion of Customer Personal Data as described in Clauses 8.5 and 16(d) of the SCCs, shall be provided only upon Customer’s written request
  2. LIABILITY TO DATA SUBJECTS

Nothing in the Agreement shall limit either party’s liability to Data Subjects under the third party beneficiary provisions of the SCCs.

  1.  TO EUROPEAN ANNEX

    POPULATION OF SCCs

In the context of any EU Restricted Transfer, the SCCs populated in accordance with Part 1 of this Attachment 1 are incorporated by reference into and form an effective part of the DPA (if and where applicable in accordance with Paragraphs 1.1 and 1.2 of Annex 2 (European Annex) to the DPA).

In the context of any UK Restricted Transfer, the SCCs as varied by the UK Transfer Addendum and populated in accordance with Part 2 of this Attachment 1 are incorporated by reference into and form an effective part of the DPA (if and where applicable in accordance with Paragraphs 1.1 and 1.3 of Annex 2 (European Annex) to the DPA).

PART 1: POPULATION OF EU SCCs

  1. SIGNATURE OF THE SCCs; MODULES
    1. Where applicable in accordance with Paragraphs 1.1 and 1.2 of Annex 2 (European Annex) to the DPA, (a) each of the Parties is hereby deemed to have signed the SCCs at the relevant signature block in Annex I to the Appendix to the SCCs; and (b) those SCCs are entered into by and between the Parties with effect from (i) the effective date of the Agreement; or (ii) the date of the first EU Restricted Transfer to which they apply in accordance with Paragraphs 1.1 and 1.2 of 2 (European Annex) to the DPA, whichever is the later.
    2. The following modules of the SCCs apply in the manner set out below (having regard to the role(s) of Customer set out in Annex 1 (Data Processing Details) to the DPA):  

Module Two of the SCCs applies to any EU Restricted Transfer involving Processing of Customer Personal Data in respect of which Customer is a Controller in its own right. 

  1. POPULATION OF THE BODY OF THE SCCs
    1. For each Module of the SCCs, the following applies as and where applicable to that Module and the Clauses thereof:
      1. The optional ‘Docking Clause’ in Clause 7 is not used and the body of that Clause 7 is left intentionally blank.
      2. In Clause 9: 
        1. OPTION 2: GENERAL WRITTEN AUTHORIZATION applies, and the minimum time period for advance notice of the addition or replacement of Subprocessors shall be the advance notice period set out in Section 8 of DPA, and the list of Subprocessors already authorized by the data exporter shall be the list on the Subprocessor Site as of the effective date of the Agreement; and
        2. OPTION 1: SPECIFIC PRIOR AUTHORIZATION is not used and that optional language is deleted; as is, therefore, Annex III to the Appendix to the SCCs. 
      3. In Clause 11, the optional language is not used and is deleted. 
      4. In Clause 13, all square brackets are removed and all text therein is retained. 
      5. In Clause 17: 
        1. OPTION 1 applies, and the Parties agree that the SCCs shall governed by the law of Ireland in relation to any EU Restricted Transfer; and
        2. OPTION 2 is not used and that optional language is deleted. 
      6. For the purposes of Clause 18, the Parties agree that any dispute arising from the SCCs in relation to any EU Restricted Transfer shall be resolved by the courts of Ireland, and Clause 18(b) is populated accordingly.    
    2. In this Paragraph, references to “Clauses” are references to the Clauses of the SCCs.
  2. POPULATION OF ANNEXES TO THE APPENDIX TO THE SCCs
    1. Annex I to the Appendix to the SCCs is populated with the corresponding information detailed in Annex 1 (Data Processing Details) to the DPA, with Customer being ‘data exporter’ and Kubiya being ‘data importer’.
    2. Part C of Annex I to the Appendix to the EU SCCs is populated as follows:
      1. Where Customer is established in an EU Member State, the competent supervisory authority shall be the supervisory authority of that EU Member State in which Customer is established.
      2. Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies and Customer has appointed an EU representative under Article 27 of the GDPR: the competent supervisory authority shall be the supervisory authority of the EU Member State in which Customer’s EU representative relevant to the processing hereunder is based (from time-to-time).
      3. Where Customer is not established in an EU Member State, Article 3(2) of the GDPR applies, but Customer has not appointed an EU representative under Article 27 of the GDPR: the competent supervisory authority shall be the supervisory authority of the EU Member State notified in writing to Kubiya’s contact point for data protection identified in Annex 1 (Data Processing Details) to the DPA, which must be an EU Member State in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located.
    3. Annex II to the Appendix to the SCCs is populated as below
      1. General: Please refer to Section 5 of the DPA and the Security Measures described therein.  In the event that Customer receives a Data Subject Request under the EU GDPR and requires assistance from Kubiya, Customer should email Kubiya’s contact point for data protection identified in Annex 1 (Data Processing Details) to the DPA.
      2.  Subprocessors: When Kubiya engages a Subprocessor under these Clauses, Kubiya shall enter into a binding contractual arrangement with such Subprocessor that imposes upon them data protection obligations which, in substance, meet or exceed the relevant standards required under these Clauses and the DPA – including in respect of (a) applicable information security measures; (b) notification of Personal Data Breaches to Kubiya; (c) return or deletion of Customer Personal Data as and where required; and (d) engagement of further Subprocessors.

PART 2: UK RESTRICTED TRANSFERS 

  1. UK TRANSFER ADDENDUM 
    1. Where relevant in accordance with Paragraphs 1.1 and 1.3 of Annex 2 (European Annex) to the DPA, the SCCs also apply in the context of UK Restricted Transfers as varied by the UK Transfer Addendum in the manner described below –
      1. Part 1 to the UK Transfer Addendum. As permitted by Section 17 of the UK Transfer Addendum, the Parties agree: 
        1. Tables 1, 2 and 3 to the UK Transfer Addendum are deemed populated with the corresponding details set out in Annex 1 (Data Processing Details) to the DPA and the foregoing provisions of this Attachment 1 to Annex 2 (European Annex) (subject to the variations effected by the UK Mandatory Clauses described in (b) below); and 
        2. Table 4 to the UK Transfer Addendum is completed by the box labelled ‘Data Importer’ being deemed to have been ticked. 
      2. Part 2 to the UK Transfer Addendum. The Parties agreed to be bound by the UK Mandatory Clauses of the UK Transfer Addendum.
    2. In relation to any UK Restricted Transfer to which they apply, where the context permits and requires, any reference in the DPA to the SCCs, shall be read as a reference to those SCCs as varied in the manner set out in Paragraph 4.1 of this Part 2.

Annex 3 – California Annex

  1. Capitalized terms used in this California Annex but not defined in the Agreement shall have the meanings given in the CCPA. As used in this California Annex, “Personal Information” means Customer Personal Data that constitutes “personal information” under the CCPA. 
  2. It is the Parties’ intent that Kubiya is a Service Provider with respect to its processing of Customer Personal Data.  Kubiya (a) acknowledges that Personal Information is disclosed by Customer only for limited and specified purposes described in the Agreement; (b) shall comply with applicable obligations under the CCPA and shall provide the same level of privacy protection to Personal Information as is required by the CCPA; (c) agrees that Customer has the right to take reasonable and appropriate steps under Section 9 of the DPA to help to ensure that Kubiya’s use of Personal Information is consistent with Customer’s obligations under the CCPA; (d) shall notify Customer in writing of any determination made by Kubiya that it can no longer meet its obligations under the CCPA; and (e) agrees that Customer has the right, upon notice, including pursuant to the preceding clause, to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information.
  3. Kubiya shall not (a) Sell or Share Personal Information; (b) retain, use, or disclose any Personal Information for any purpose other than for the Business Purposes specified in the Agreement, including retaining, using, or disclosing Personal Information for a Commercial Purpose other than the Business Purpose specified in the Agreement, or as otherwise permitted by CPPA; (c) retain, use or disclose Personal Information outside of the direct business relationship between Kubiya and Customer; or (d) combine Personal Information received pursuant to the Agreement with Personal Information (i) received from or on behalf of another person, or (ii) or collected from Kubiya’s own interaction with any Consumer to whom such Personal Information pertains.  Kubiya hereby certifies that it understands the obligations under this Section and will comply with them.
  4. Giving Customer notice of Subprocessor engagements in accordance with Section 8 of the DPA shall satisfy Kubiya’s obligation under the CPRA to give notice of such engagements.
  5. Obligations under this California Annex that are neither required to be imposed on Kubiya for Kubiya to qualify as a Service Provider under the CCPA nor for the Parties to comply with their obligations under the CCPA in relation to the required terms of contracts, in each case, before the CPRA takes effect on January 1, 2023, shall apply to Kubiya only on and after January 1, 2023. 

Annex 4 – Security Measures

Kubiya agrees to implement and maintain the following Security Measures:

  1. Organizational management and dedicated staff responsible for the development, implementation and maintenance of Kubiya’s information security program. 
  2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Kubiya’s organization, monitoring and maintaining compliance with Kubiya’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
  3. Data security controls which include at a minimum logical segregation of data, restricted (e.g., role-based) access and monitoring, and utilisation of commercially available and industry standard encryption technologies for Customer Personal Data.
  4. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions.
  5. Password controls designed to manage and control password strength, expiration and usage.
  6. System audit or event logging and related monitoring procedures to proactively record user access and system activity. 
  7. Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Kubiya’s possession.
  8. Change management procedures and tracking mechanisms designed to test, approve, and monitor all material changes to Kubiya’s technology and information assets.
  9. Incident management procedures designed to allow Kubiya to investigate, respond to, mitigate, and notify of events related to Kubiya’s technology and information assets. 
  10. Network security controls and procedures for network services and components. 
  11. Vulnerability assessment and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate, and protect against identified security threats, viruses, and other malicious code.

13. Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disaster.