Data Processing Agreement Effective Date: May 1, 2024

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This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between Customer (“Customer” or “You”) and ScaleKit, Inc. (“Company”, “We”, “Ours” or “Us”). You and Us are hereinafter referred to individually as a “Party” and collectively as the “Parties”. You are required to read this DPA carefully as this DPA forms an integral part of the Customer Agreement available here (the “Agreement'') and is applicable where the Company is the Processor of Your Personal Data forming part of the Customer Data.

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1. Scope and Responsibilities

1.1 We shall Process Personal Data forming a part of the Customer Data only on Your behalf and at all times only in accordance with this DPA. For the avoidance of doubt, You may either be the Controller or Processor of the Personal Data. Where You are the Controller, We are the Processor and where You are the Processor, We are the sub-processor of Personal Data. 

1.2 Within the scope of the Agreement, each Party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.

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2. Term and Termination

2.1 This DPA becomes effective upon You subscribing to the Platform by agreeing to the Agreement. It shall continue to be in full force and effect as long as We are Processing Personal Data pursuant to the Agreement and shall terminate automatically thereafter.  

2.2 Where amendments are required to ensure compliance of this DPA with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Agreement in accordance with the termination procedure contained therein.‍

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3. Processing Instructions

We will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to Us. The Parties agree that You may communicate any change in Your initial instructions to Us by way of amendment to this DPA, which shall be signed by the Parties. If Your instruction infringes Data Protection Laws, We will inform You promptly without undue delay 

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4. Processor Personnel

We will restrict Our personnel from Processing Personal Data without authorization. We will impose appropriate contractual obligations upon Our personnel, including relevant obligations regarding confidentiality, data protection and data security. 

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5. Disclosure to Third Parties; Data Subjects Rights 

5.1 We will not disclose Personal Data to any government agency, court, or law enforcement agency except with Your written consent or as necessary to comply with applicable mandatory laws and lawful requests. 

5.2 In case You receive any request or communication from Data Subjects which relates to the Processing of Personal Data ("Request"), We shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request were instructed by You. Where We receive a Request, We shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You. 

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6. Technical and Organizational Measures

We shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs"). Such measures are set out in Schedule B. 

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7. Assistance with Data Protection Impact Assessment

Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, We shall provide, upon request, to You any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not pertaining to Our obligations under this DPA.  

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8. Information Rights and Audit 

8.1 We shall, in accordance with Data Protection Laws, make available to You on request in a timely manner such information as is necessary to demonstrate compliance by Us with Our obligations under the Data Protection Laws. 

8.2 Upon Your written request at reasonable intervals, We shall make available to You relevant information regarding Our Processing of Personal Data in the form of Our most recent third party audits and certifications, which may include audit reports such as SOC 2, to ensure compliance with Our obligations set out in this DPA. You agree that such third party audits and certifications are sufficient to demonstrate Our compliance with the obligations set out in this DPA. 

8.3 We will immediately refer to You any requests received from national data protection authorities that relate to the Processing of Personal Data. We undertake to reasonably cooperate with You in Your dealings with national data protection authorities and with any audit requests received from national data protection authorities. 

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9. Personal Data Breach Notification 

9.1  In respect of any Personal Data Breach (actual or reasonably suspected), We shall: 

a. notify You of a Personal Data Breach involving Us or a sub-processor without undue delay; 

b. provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.

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10. International Data Transfers

10.1 The Parties agree that when the transfer of Personal Data from the Data Exporter to Data Importer is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this Agreement as follows: 

A. In relation to transfers of Personal Data originating from the EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:

1. Module 2 (Controller to Processor) shall apply where You are a Controller and We are a Processor. Module 3 (Processor to Processor) shall apply where You are a Processor and We are a sub-processor; 
2. in Clause 7, the optional docking clause will apply; 
3. in Clause 11, the optional language will not apply; 
4. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law; 
5. in Clause 18(b), disputes shall be resolved before the courts of Ireland; 
6. Annex I of the EU SCCs shall be deemed completed with the information set out in Schedule A to this Agreement; and 
7. Annex II of the EU SCCs shall be deemed completed with the information set out in Schedule B to this Agreement;

B. In relation to transfers of Personal Data originating from the UK or Switzerland and subject to the UK GDPR or Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications: 

1. references to Regulation (EU) 2016/679; shall be interpreted as references to UK Data Protection Laws or the Swiss DPA (as applicable); 
2. references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent article or section of UK Data Protection Laws or the Swiss DPA (as applicable); 
3. references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “UK”, “Switzerland” “UK law”; or “Swiss law” (as applicable); 
4. the term “member state” shall not be interpreted in such a way as to exclude data subjects in the UK or Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., the UK or Switzerland); 
5. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the UK Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable); 
6. references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Information Commissioner” and the “courts of England and Wales” or the “Swiss Federal Data Protection In- formation Commissioner” and “applicable courts of Switzerland” (as applicable); 
7. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and 
8. with respect to transfers to which UK Data Protection Laws apply, Clause 18 shall be amended to state “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may bring legal proceeding against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts”, and with respect to transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.

C. In relation to transfers of Personal Data originating from the United Kingdom and subject to the UK GDPR, the UK SCCs are hereby incorporated as an amendment to the EU SCCs and updated to reflect the details set forth in Schedule D to this Agreement. 

10.2 For the purposes of descriptions in the SCCs and the UK SCCs, You agree that You are the “Data Exporter” and We are the “Data Importer”. 

10.3 The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Legislation requires the adoption of an alternative transfer solution, the Data Exporter and Data Importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the Data Exporter’s option, delete or return the Personal Data to the Data Exporter. 

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11. Deletion or Return of Personal Data

Upon termination of Your Account, We may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Agreement. This requirement shall not apply to the extent that We are permitted by applicable law to retain some or all of the Personal Data, in which event We shall isolate and protect the Personal Data from any further processing. 

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12. OBLIGATIONS UNDER OTHER PRIVACY LAWS IN THE US:

A. In addition to the other provisions of this DPA, Clause 13 A shall apply to the Processing of the Personal Information of the residents of the State of California, USA, and shall override any conflicting terms in the rest of the DPA. In this Clause, the terms “Business”, “Business Purpose” “Commercial Purpose” “Service Provider”, “Personal Information”, “Consumers”, “Sell”, and “Share”, shall have the meaning given in the CA Privacy Laws. ​​ 

Where We act as a Service Provider on Your behalf in accordance with this DPA:​​  

i. You disclose Personal Information to Us solely for: (i) valid Business Purposes and (ii) to enable Us to Process the Personal Information for providing the Platform under the Agreement.​  

ii. We shall not:

1. Sell, or Share the Personal Information that We Process on Your behalf for providing the Platform under the Agreement and this DPA.​​​  
2. retain, use or disclose Personal Information We collect from You pursuant to the Agreement for any purpose other than providing the Platform specified in the Agreement or as otherwise permitted by the ​CA Privacy Laws​. ​​  
3. retain, use or disclose Personal Information We collect from You pursuant to the Agreement for any Commercial Purpose other than the Business Purpose(s) as specified in the Agreement (or in any applicable statement of work or similar document), unless expressly permitted by the CA Privacy Laws​;​​  
4. retain, use or disclose Personal Information We collect from You pursuant to the Agreement outside the direct business relationship between You and Us unless expressly permitted by the​ CA Privacy Laws​. For instance, We shall not ​​combine the Personal Information that is received from or on Your behalf with Personal Information that is received from any other except as permitted under the ​CA Privacy Laws​.​​​ 

iii. We shall comply with all applicable sections of the​ CA Privacy Laws​, including with respect to providing the same level of privacy protection as required of You by the ​CA Privacy Laws ​to the Personal Information collected pursuant to the Agreement.​  

iv. We acknowledge that You have the right upon notice to take reasonable and appropriate steps to stop and remediate the unauthorized use of the Personal Information.​​​  

v. We certify that We understand the restrictions in this Clause and will comply with such restrictions​.  

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B. In addition to the other provisions of this DPA, in case of Processing of the Personal Data of the residents of the State of Colorado or State of Virginia USA, We shall provide reasonable assistance to You in meeting Your obligations under the applicable Data Protection Laws in relation to the security of Processing the Personal Data. 

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13. Miscellaneous 

13.1 In case of any conflict, the provisions of this DPA shall take precedence over the Agreement or provisions of any other agreement with Us. In case of any conflict between this DPA and the SCCs, the SCCs shall take precedence over the provisions of the rest of the DPA. 

13.2 No Party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.  

13.3 Where this DPA requires a “written notice” such notice can also be communicated per email to the other Party. Notices shall be sent to the contact persons set out in Schedule A. 

13.4. Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties. 

 13.5 Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.

The following Schedules form an integral part of this DPA: 

LIST OF PARTIES UNDER THE SCCS

Data Exporter: 

The Data Exporter is the entity that has subscribed to the Agreement and their contact details are as provided by them while subscribing to the Agreement. 

Signature & Date:  By accepting the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the date of acceptance. 

Role: Controller or Processor 

Data Importer:

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DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred 

Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: Data Exporter’s authorized personnel and other individuals such as Data Exporter’s customers’ or clients’ and their authorized personnel.  

Categories of personal data transferred 

The transferred Personal Data concerns the following categories of data: 

Name, phone number, company-level information, e-mail address, IP location, operating system and browser information. 

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. 

No Sensitive Personal Information transferred. The Data Exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to the Data Importer for processing. 

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis) 

Personal Data is transferred on a continuous basis for the duration of subscription to the Platform. 

Nature of the processing 

Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means). 

Purpose(s) of the data transfer and further processing 

Personal Data is transferred in the course of accessing and using the Platform by the Data Exporter so that the Data Importer may provide, support, maintain and improve the Platform.  

The Data Importer may further transfer Personal Data to third-party service providers that host and maintain the applications, backup, storage, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services. 

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period 

Upon termination of the Data Exporter’s account, the Data Importer will delete all Personal Data in accordance with Clause 12 of the DPA. 

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

COMPETENT SUPERVISORY AUTHORITY 

In respect of the SCCs: 

Module 2: Transfer Controller to Processor 

Module 3: Transfer Processor to Processor 

Where You are the Data Exporter, the supervisory authority shall be the competent supervisory authority that has supervision over You in accordance with Clause 13 of the SCCs.

TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA 

The technical and organizational measures to ensure the security of Personal Data are mentioned in the Data Importer’s Information and Security Policy which You may request access to by writing to support@scalekit.com

~ Not used.

This UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 11.1 (A) of this DPA.  

Part 1: Tables 

For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Agreement by this reference) and completed as follows: 

(a) In Table 1 of the UK SCCs, the Parties’ details and key contact information shall be as set forth in Schedule A. 

(b) In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clause 11.1(A)(i), (ii), (iii), (iv) of this DPA. 

(c) In Table 3 of the UK SCCs:  

1. Annex 1A: List of Parties: Parties are as set forth in Schedule A. 
2. Annex 1B: Description of Transfer: Description of Transfer is as set forth in Schedule A. 
3. Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: TOMs are as set forth in Schedule B. 
4. Annex III: List of Subprocessors: Subprocessors are as set forth in Schedule A. 

(d) In Table 4 of the UK SCCs, both the Data Importer and the Data Exporter may end the UK SCCs in accordance with the terms of the UK SCCs. 

Part 2: Mandatory Clauses  

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎‎18 of those Mandatory Clauses.