Terms and Conditions

Terms of Service Effective Date: September, 2023

BY ACCEPTING THIS MASTER SUBSCRIPTION AGREEMENT (“MSA”), BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THIS MSA, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS MSA WITH KAPSTAN, INC. (“KAPSTAN”). IF THE INDIVIDUAL ACCEPTING THIS MSA IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS MSA, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS MSA DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS MSA, SUCH INDIVIDUAL MUST NOT ACCEPT THIS MSA AND MAY NOT USE THE SERVICES. THIS MSA WILL BE DEEMED EFFECTIVE ON THE DATE IT IS ACCEPTED BY CUSTOMER AND ORDER FORM (AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”).

1. Agreement and Term. The products and online services (collectively, “Services”) made available by Kapstan pursuant to this Agreement will be described in and purchased by Customer under an order form(s) signed by both parties or purchased by Customer via a Kapstan-provided online ordering process (collectively, “Order Forms”). Any product and online services made available by Kapstan to Customer free of charge or under a free trial shall be deemed Services governed by this Agreement. Customer and Kapstan will adhere to the Data Protection Addendum located at [Insert link] (the “DPA”), and entrance into this MSA shall constitute entrance into the DPA. “Agreement” includes this Agreement together with all Order Forms and the DPA. The “Term” of this Agreement begins on the Effective Date and ends when all Order Forms have expired or terminated.

2. Use of Services. During the Term and subject to the terms of this Agreement, Kapstan grants Customer a non-exclusive, non-transferable (a) right to access and use the Services set forth in an Order Form and (b) license, with respect to any agents, code, or other software Kapstan provides to Customer, to install and use in object code form on the Customer property(ies) or infrastructure for the purposes provided in connection with Customer’s use of the Services.

3. Kapstan Responsibilities.  

3.1. Kapstan will provide the Services in accord with this Agreement and the laws and regulations applicable to Kapstan’s provision of its Services to its customers generally. Kapstan is responsible for its personnel’s and agents’ compliance with Kapstan’s obligations under this Agreement.  

3.2. Kapstan will use commercially reasonable efforts to make its online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Kapstan will inform Customer in advance), and (b) unavailability caused by circumstances beyond Kapstan’s reasonable control.  

3.3. Kapstan will maintain appropriate administrative, physical and technical safeguards for the protection of Customer Data (defined below), including measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer’s personnel). Thirty days after termination or expiration of this MSA, Kapstan will have no obligation to maintain or provide any Customer Data, and will thereafter delete all Customer Data and Customer Confidential Information from its systems.

4. Customer Responsibilities.

4.1. In its use of the Services, Customer will comply with this Agreement (including any usage limits specified in Order Forms) and all applicable laws and regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Kapstan promptly of any such unauthorized access or use. Customer is responsible for its personnel’s and agents’ compliance with Customer’s obligations under this Agreement.

4.2. Customer will not (a) make any part of the Services available to, or use the Services for the benefit of, any third party; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services; (c) modify, copy or create derivative works of the Services (or any part thereof); (d) disassemble, reverse-engineer or decompile the Services; (e) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (f) use the Services or any Third-Party Application to store or transmit materials that are unlawful, misleading, libelous, obscene, hateful or violative of others’ privacy rights; (g) introduce viruses or other malware to a Third-Party Application or the Services, Kapstan’s systems or end users; or (h) except to the extent permitted by applicable law, access the Services to build a competitive product or service. Customer will not use the Services or any Third-Party Application in a manner that violates its agreement with any third party or could reasonably be expected to damage the Services or Third-Party Application or reflect unfavorably on the reputation of Kapstan or its partners. Customer will not export, re-export, or transfer the Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.

4.3. To help enable the efficient provisioning and operations of the Services, Customer and its personnel will reasonably cooperate with Kapstan and its personnel, including as applicable, providing information as to Customer requirements and, access to Customer’s environment or Third-Party Application instance.

4.4. Promptly following the Term (and in no event later than 30 days thereafter), Customer will delete any account credentials made available to Kapstan.

5. Privacy.  
5.1. Each party will conspicuously post and comply with a legally sufficient privacy notice on its properties where data is collected and used in association with the Services. The privacy notice must accurately describe the party’s practices relating to data collection, sharing and use.

5.2. Customer is responsible for the accuracy, quality and legality of Customer Data (as defined below),, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services or any Third-Party Application. Customer will ensure that all necessary rights and permissions and a lawful basis are established for the transfer and/or use and processing of Customer Data in connection with the Services or the applicable Third-Party Application in compliance with all applicable laws and regulations.  


6. Data and Proprietary Rights.  
6.1. Except as set forth in this Agreement, as between Kapstan and Customer, Customer owns all right, title and interest (including all intellectual property rights) in all data input into the Services by or on behalf of Customer (“Customer Data”). Kapstan may only use Customer Data to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.

6.2. Except as set forth in this Agreement, as between Kapstan and Customer, Kapstan owns all right, title and interest (including all intellectual property rights) in the Services, including all software code generated by Kapstan; its machine learning; all the data within the Services, including system performance metrics, except for Customer Data (collectively, “Kapstan Data”); and any future developments, derivatives and enhancements to the Services. Customer may only use Kapstan Data in connection with using the Services. Customer acknowledges that, as Services are provided to Customer and to Kapstan’s other customers, the Services and the underlying algorithms are engaged in continual machine learning, and that the results and output of such learning are owned solely by Kapstan. Kapstan will not be restricted from improving its services on the basis of general learning and know-how gained from the provision of the Services to Customer and Kapstan's other partners. Kapstan may use any suggestions or feedback perpetually and irrevocably, without accounting, attribution or compensation.

6.3. Notwithstanding anything to the contrary, Kapstan may collect, produce, use, or retain aggregated or other deidentified data related to or generated from Customer’s use of the Services or Customer Data, provided that such data is not reasonably capable of identifying Customer or any individual consumer. Kapstan retains all right, title and interest in and to such data.

6.4. No jointly owned intellectual property is created hereunder.


7. Third-Party Applications.
The Services may offer features designed to interoperate with third party software applications and services including Customer’s cloud infrastructure (“Third-Party Applications”). If Customer chooses to use a Third-Party Application with a Service, Customer grants Kapstan permission to allow the Third-Party Application and its provider to access Customer Data and information about Customer’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the Service. Kapstan cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. Kapstan is not responsible for any act or omission by a Third-Party Application, including, without limitation, any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider. If Customer receives notice that a Third-Party Application must be removed, modified or disabled in connection with applicable laws or third-party rights, Customer will promptly do so to the extent Customer has control to do so. If Customer does not do so, or if Kapstan reasonably believes that a violation of applicable laws or third-party rights is likely to occur or continue, Kapstan may disable the Services’ ability to interoperate with such Third-Party Application. Customer will comply with the terms of service or similar policies of any Third-Party Application with which Customer uses the Services.


8. Payment, Taxes, and Renewal.
8.1. Customer will pay fees specified in each Order Form in US Dollars, within 30 days of the invoice date. If an Order Form specifies payment by credit card, Customer will promptly provide credit card billing details and hereby authorizes Kapstan to charge the credit card for Services. Kapstan reserves the right to charge interest on late payments at the lower of 1.5% of the outstanding balance per month, or the maximum permitted by law. Kapstan’s fees do not include any present or future taxes, levies, fees or duties of any kind (“Taxes”). Except for any Tax that Kapstan has charged to Customer, Customer is responsible for remitting all Taxes based on or arising from this Agreement (other than Taxes based on Kapstan’s net income), without setoff or deduction from the fees. If Kapstan is held responsible for such Taxes, Customer will reimburse Kapstan for such payments.

8.2. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any renewal term will increase by up to 5% above the applicable pricing in the prior term, unless Kapstan provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Kapstan’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Termination and Suspension. Unless otherwise specified in an Order Form, either party may terminate this Agreement and any Order Form immediately if (a) the other party becomes the subject of a petition in bankruptcy


9. Termination and Suspension.
Unless otherwise specified in an Order Form, either party may terminate this Agreement and any Order Form immediately if (a) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) the other party is in material breach of this Agreement, has been given notice of such material breach, and has failed to cure within 30 days (or 5 days in the case of failure to pay fees as described in this Agreement). If this Agreement or an Order Form is terminated for Customer’s uncured breach, Customer will promptly pay any minimum amounts that would have been due for the full duration of the Term as it existed prior to the early termination. If an Order Form indicates that Services are provided free of charge, then Kapstan will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period specified on the Order Form, (b) the start date of any purchased Service subscriptions ordered by Customer for Service(s) subject to the free trial, or (c) termination by Kapstan in its sole discretion. Kapstan may suspend access to and use of the Services if Kapstan reasonably believes that Customer’s continuing use of the Services may cause risk of litigation or otherwise be harmful to Kapstan. Upon the termination or expiration of this Agreement, Customer’s right to use the Services will terminate, and Customer will promptly return (or at Kapstan’s election, delete) Kapstan’s Confidential Information (including any Kapstan Data). All provisions of this Agreement that by their nature should survive termination shall survive (including, without limitation, all outstanding payment obligations).


10. Confidentiality.
“Confidential Information” means information that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the type of information. Confidential Information does not include information that the receiving party can demonstrate (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality or (d) is independently developed without use of the disclosing party’s Confidential Information. The receiving party may use the disclosing party’s Confidential Information only as permitted under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information. The receiving party may share the disclosing party’s Confidential Information with its employees, agents and contractors, and in the case of Kapstan with a Third-Party Application provider, who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement and provided that a party that makes a permitted disclosure will remain responsible for the recipient’s compliance with this section. If compelled to do so by law, the receiving party may disclose the disclosing party’s Confidential Information as long as it provides reasonable prior notice to the disclosing party (unless legally prohibited). The terms of the Agreement will be Confidential Information of Kapstan (but Customer may disclose this Agreement to its professional advisors and as required by law).


11. Mutual Indemnity.  

11.1. Kapstan will indemnify, defend and hold harmless Customer and its officers, directors, employees and representatives from, to the extent payable to unaffiliated third parties, any actual, out of pocket liability or expense (including reasonable attorneys’ fees) (“Liabilities”) from any third-party claim that the Services in the form made available by Kapstan infringe such third-party’s intellectual-property rights. Customer will indemnify, defend, and hold harmless Kapstan and its officers, directors, employees and representatives (collectively, “Kapstan Parties”) from any actual, out of pocket Liabilities from any third-party claim arising out of or from (i) Customer Data or any other Customer information or materials; (ii) Customer’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party; or (iii) any Third-Party Application. Each party’s indemnification obligations are conditioned on (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve the indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) the indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with the indemnitor, at the indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

11.2. Kapstan will have no obligation for claims arising out of or from (a) Services that are modified by Kapstan in compliance with Customer’s specifications, where the cause of action would not have arisen but for such modification, (b) the combination of the Services with products or services not supplied by Kapstan, where the cause of action would not have arisen but for such combination, (c) the unauthorized adaptation or modification of the Services, where the cause of action would not have arisen but for such adaptation or modification, (d) Customer’s failure to follow instructions provided by Kapstan which would have cured the cause of action, provided that following such instructions would not have caused Customer substantial, additional cost, (e) use of the Services other than as described in the Agreement, (f) Customer’s breach of this Agreement, (e) Customer’s continued use of a version of the Services other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used or (f) free Services. If any of the subsections above apply, Customer will indemnify, defend and hold harmless the Kapstan Parties from and against any Liabilities from such claims.  

11.3. If the Services are held in a suit or proceeding to infringe any intellectual-property or other rights of a third party, or Kapstan reasonably believes that it is likely to be found to do so, then Kapstan may, at its sole cost, expense and option, either (a) procure the right to continue using the Services or (b) modify the Services so that they become non-infringing without affecting the basic functionality of the Services; provided, however, that if (a) and (b) are not practicable, Kapstan may, in its sole discretion, terminate this Agreement with respect to the applicable portion of the Services by giving Customer 30 days’ written notice, upon which termination Kapstan will refund the portion of any prepayment that reflects the remaining subscription term.  

DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KAPSTAN PROVIDES ALL SERVICES AND KAPSTAN DATA “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. EXCEPT FOR KAPSTAN BEING RESPONSIBLE DURING THE TERM FOR MAINTAINING THE SECURITY OF ANY ACCOUNT CREDENTIALS REQUIRED BY KAPSTAN AND PROVIDED TO IT BY CUSTOMER IN CONNECTION WITH THE SERVICES, KAPSTAN IS NOT RESPONSIBLE FOR THE SECURITY OF CUSTOMER’S INFRASTRUCTURE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. KAPSTAN DOES NOT WARRANT THE SERVICES WILL BE UNINTERUPPTED OR ERROR FREE.

LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACHES OF SECTION 10 OF THIS AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND (B) EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATION TO PAY ANY MINIMUM FEES, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (I) AMOUNT PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE AND (II) ONE THOUSAND DOLLARS (USD $1,000.00). THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

14. Logo Use.
Customer agrees that Kapstan may use Customer's name and logo on Kapstan’s web site and in Kapstan promotional and marketing materials.


15. General.

15.1. Assignment. Customer will not assign or transfer this Agreement (in whole or part). Any attempt to transfer or assign this Agreement except as expressly authorized above will be null and void. Kapstan may freely assign this Agreement.

15.2. Force Majeure. Kapstan will not liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of Kapstan, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, supply chain issues, issues with Kapstan’s providers (such as its hosting provider), or refusal of a license by a government agency.  

15.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.

15.4. Notice. All notices to Customer may be provided by Kapstan via email or account notification. Any legal notices to Kapstan must be sent to Kapstan, Inc., 548 Market St #62319, San Francisco, CA 94104-5401. In addition, legal notices must also be sent to legal@kapstan.io (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).

15.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be updated by Kapstan on notice. If Customer does not agree to any amendment, its sole remedy is to terminate use of the Service within thirty (30) days from receipt of the amendment notice (otherwise Customer will be bound by the updated Agreement). If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically.



KAPSTAN DATA PROCESSING ADDENDUM  

This Data Processing Addendum, including its schedules (“DPA”), supplements and forms part of the Master Subscription Agreement found
here (including any Order Forms thereunder, the “Agreement”), for Customer’s purchase of online services (including associated Kapstan offline or mobile components) from Kapstan (“Services”) to reflect the parties’ agreement with regard to the Processing of Personal Data.

Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

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

DATA PROCESSING TERMS DEFINITIONS.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and Kapstan, but has not signed its own Order Form with Kapstan and is not a “Customer” as defined under this DPA.

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.

“Customer” means the entity that executed the Agreement together with its Affiliates (for so long as they remain Affiliates) which have signed Order Forms.

“Customer Data” means what is defined in the Agreement as “Customer Data.”

“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 as amended from time to time.

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

“Europe” means the European Union, the European Economic Area, Switzerland and the United Kingdom.

“GDPR” means 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.

“Kapstan Group” means Kapstan, Inc. and any of its Affiliates engaged in the Processing of Personal Data.

“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as Personal Data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.

“Processing” or “Process” 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.

“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.

“Public Authority” means a government agency or law enforcement authority, including judicial authorities.

“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 European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, as currently set out at
https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj  

“Sub-processor” means any Processor engaged by Kapstan or the Kapstan Group.


PROCESSING OF PERSONAL DATA.

2.1. 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, Kapstan is a Processor and that Kapstan or members of the Kapstan Group will engage Sub-processors pursuant to the requirements set forth in section 5 “Sub-processors” below.

2.2. Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of Kapstan as Processor (including where the Customer is a Processor, by ensuring that the ultimate Controller does so). 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. Customer specifically acknowledges and agrees that its use of the Services will not violate the rights of any Data Subject, including those that have opted-out from sales or other disclosures of Personal Data, to the extent applicable under Data Protection Laws and Regulations.

2.3. Kapstan’s Processing of Personal Data. Kapstan 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 Customer’s 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.

2.4. Details of the Processing. The subject-matter of Processing of Personal Data by Kapstan 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 2 (Description of Processing/Transfer) to this DPA.


3. RIGHTS OF DATA SUBJECTS. Kapstan 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, object to the Processing, or its right not to be subject to an automated individual decision making, each such request being a “Data Subject Request”. Kapstan shall not respond to a Data Subject Request itself, except that Customer authorizes Kapstan to redirect the Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Kapstan 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, Kapstan shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Kapstan 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 Kapstan’s provision of such assistance.


4. KAPSTAN PERSONNEL.

4.1. Confidentiality. Kapstan 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. Kapstan shall ensure that such confidentiality obligations survive the termination of the personnel engagement.

4.2. Reliability. Kapstan shall take commercially reasonable steps to ensure the reliability of any Kapstan personnel engaged in the Processing of Personal Data.

4.3. Limitation of Access. Kapstan shall ensure that Kapstan’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.


5. SUB-PROCESSORS.
5.1. Appointment of Sub-processors. Customer acknowledges and agrees that (a) Kapstan’s Affiliates may be retained as Sub-processors; and (b) Kapstan and Kapstan’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Kapstan or a Kapstan 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 Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.

5.2. List of Current Sub-processors. A current list of Sub-processors for the Services, including the identities of those Sub-processors and their country of location, may be found at
-
https://auth0.com/ [United States]
-
https://posthog.com/ [United States]
-
https://aws.amazon.com/  [United States]
-
https://analytics.google.com/

5.3. Liability. Kapstan shall be liable for the acts and omissions of its Sub-processors to the same extent Kapstan 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. SECURITY.

6.1. Controls for the Protection of Customer Data. Kapstan shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data. Kapstan regularly monitors compliance with these measures. Kapstan will not materially decrease the overall security of the Services during a subscription term.

6.2. Audit. Kapstan shall maintain an audit program to help ensure compliance with the obligations set out in this DPA and shall make available to Customer information to demonstrate compliance with the obligations set out in this DPA as set forth in this section

6.2.1 Third-party Certifications and Audits. Kapstan has obtained the third-party certifications and audits for the Services. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Kapstan shall make available to Customer (or Customer’s Third-party Auditor - as defined below in section 6.2.4) information regarding Kapstan’s compliance with the obligations set forth in this DPA. Where Kapstan has obtained ISO 27001 certifications and SSAE 18 Service Organization Control (SOC) 2 reports for the Services, Kapstan agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Agreement. Upon request, Kapstan shall also provide a requesting Customer with a report and/or confirmation of Kapstan's audits of third party Sub-processors' compliance with the data protection controls set forth in this DPA and/or a report of third party auditors' audits of third party Sub-processors that have been provided by those third-party Sub-processors to Kapstan, to the extent such reports or evidence may be shared with Customer (“Third-party Sub-processor Audit Reports”).
Customer acknowledges that (i) Third-party Sub-processor Audit Reports shall be considered Confidential Information as well as confidential information of the third-party Sub-processor and (ii) certain third-party Sub-processors to Kapstan may require Customer to execute a non-disclosure agreement with them in order to view a Third-party Sub-processor Audit Report.

6.2.2. On-Site Audit. Customer may contact Kapstan to request an on-site audit of Kapstan’s Processing activities covered by this DPA (“On-Site Audit”). An On-Site Audit may be conducted by Customer either itself or through a Third-party Auditor (as defined below in section 6.2.4) 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 Kapstan of a Customer Data Incident;

iii) or 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 operated by Kapstan or any of Kapstan’s Affiliates. Customer acknowledges that Kapstan operates a multi-tenant cloud environment. Accordingly, Kapstan shall have the right to reasonably adapt the scope of any On-Site Audit to avoid or mitigate risks with respect to, and including, service levels, availability, and confidentiality of other Kapstan customers’ information.

6.2.3. 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, Kapstan will use good faith efforts to accommodate the On-Site Audit request;

iii) and during Kapstan’s normal business hours, under reasonable duration and shall not unreasonably interfere with Kapstan’s day-to-day operations. Before any On-Site Audit commences, Customer and Kapstan shall mutually agree upon the scope, timing, and duration of the audit and the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by or on behalf of Kapstan.


6.2.4. Third-party Auditor. A Third party Auditor means a third-party independent contractor that is not a competitor of Kapstan. 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 Kapstan’s proprietary information;

ii) and the costs of the Third party Auditor are at Customer’s expense.

6.2.5. Findings. Customer must promptly provide Kapstan with information regarding any non-compliance discovered during the course of an On-Site Audit.

6.3 Data Protection Impact Assessment. Upon Customer’s request, Kapstan 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 Kapstan.


7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION. Kapstan 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 Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Kapstan or its Sub-processors of which Kapstan becomes aware (a “Customer Data Incident”). Kapstan shall make reasonable efforts to identify the cause of such Customer Data Incident and take such steps as Kapstan deems necessary and reasonable to remediate the cause of such a Customer Data Incident to the extent the remediation is within Kapstan’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.


8. GOVERNMENT ACCESS REQUESTS.
8.1. Kapstan requirements. In its role as a Processor, Kapstan 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 Kapstan receives a legally binding request to access Personal Data from a Public Authority, Kapstan shall, unless otherwise legally prohibited, promptly notify Customer including a summary of the nature of the request. To the extent Kapstan is prohibited by law from providing such notification, Kapstan shall use commercially reasonable efforts to obtain a waiver of the prohibition to enable Kapstan to communicate as much information as possible, as soon as possible. Further, Kapstan shall challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful. Kapstan shall pursue possibilities of appeal. When challenging a request, Kapstan shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the Personal Data requested until required to do so under the applicable procedural rules. Kapstan agrees it will provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request. Kapstan shall promptly notify Customer if Kapstan becomes aware of any direct access by a Public Authority to Personal Data and provide information available to Kapstan in this respect, to the extent permitted by law. For the avoidance of doubt, this DPA shall not require Kapstan to pursue action or inaction that could result in civil or criminal penalty for Kapstan such as contempt of court.

8.2. Sub-processors requirements. Kapstan shall ensure that Sub-processors involved in the Processing of Personal Data are subject to the relevant commitments regarding Government Access Requests in the Standard Contractual Clauses.


9. RETURN AND DELETION OF CUSTOMER DATA. Kapstan shall, upon Customer’s written request, promptly destroy or return any Personal Data after the end of the provision of Services, unless storage of the Personal Data is required by applicable law.


10. AUTHORIZED AFFILIATES.

10.1. Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, Customer enters into this DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Kapstan and each such Authorized Affiliate subject to the provisions of the Agreement and this section 10 and section 11. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement, and is a party only to this DPA. All access to and use of the Services and Content by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.

10.2. Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Kapstan under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

10.3. Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA with Kapstan, it 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:

10.3.1.  Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Kapstan directly by itself, the parties agree that (i) 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 (ii) 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 (as set forth, for example, in section 10.3.2, below).

10.3.2. 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 Kapstan 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, and all DPAs between Authorized Affiliates and Kapstan, whether in contract, tort or under any other theory of liability, is subject to any limitations of liability set forth in 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 and all DPAs together. For the avoidance of doubt, Kapstan’s and its Affiliates’ total liability for all claims from Customer and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.


12. EUROPE SPECIFIC PROVISIONS.

12.1. Definitions. For the purposes of this section 12 and Schedule 1 these terms shall be defined as follows:

“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).

“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).

12.2. GDPR. Kapstan will Process Personal Data in accordance with the GDPR requirements directly applicable to Kapstan’s provision of its Services.

12.3. Customer Instructions. Kapstan shall inform Customer immediately (i) if, in its opinion, an instruction from Customer constitutes a breach of the GDPR and/or (ii) if Kapstan is unable to follow Customer’s instructions for the Processing of Personal Data.

12.4. 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 and can be directly enforced by the parties to the extent such transfers are subject to the Data Protection Laws and Regulations of Europe:

i) 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 Kapstan 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 1; and/or

ii) 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 Kapstan 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 1.


12.5. Impact of local laws. As of the Effective Date, Kapstan has no reason to believe that the laws and practices in any third country of destination applicable to its Processing of the Personal Data, including any requirements to disclose Personal Data or measures authorising access by a Public Authority, prevent Kapstan from fulfilling its obligations under this DPA. If Kapstan 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, Kapstan 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 Kapstan 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 Kapstan 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: Transfer Mechanisms for European Data Transfers  
Schedule 2: Description of Processing/Transfer

SCHEDULE 1 - 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 Kapstan is the data importer and the parties agree to the following. If and to the extent an Authorized Affiliate relies on the EU C-to-P Transfer Clauses or the EU P-to-P Transfer Clauses for the transfer of Personal Data, any references to ‘Customer’ in this Schedule, include such Authorized Affiliate. Where this section 1 does not explicitly mention EU C-to-P Transfer Clauses or EU P-to-P Transfer Clauses it applies to both of them.

1.1. 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

1.2. Docking clause. The option under clause 7 shall not apply.

1.3. Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Kapstan for the Processing of Personal Data. 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 2.3 of this DPA and include onward transfers to a third party located outside Europe for the purpose of the performance of the Services.

1.4. 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 Kapstan to Customer only upon Customer's written request.

1.5. 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 Kapstan employs meet 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 Kapstan 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.

1.6. 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 6.2 of this DPA.

1.7. General authorisation for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Kapstan has Customer’s general authorisation to engage Sub-processors in accordance with section 5 of this DPA. Kapstan shall make available to Customer the current list of Sub-processors in accordance with section 5.2 of this DPA. Where Kapstan enters into the EU P-to-P Transfer Clauses with a Sub-processor in connection with the provision of the Services, Customer hereby grants Kapstan and Kapstan’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.

1.8. Notification of New Sub-processors and Objection Right for new Sub-processors. Pursuant to clause 9(a), Customer acknowledges and expressly agrees that Kapstan may engage new Sub-processors as described in sections 5.2 and 5.3 of this DPA. Kapstan shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5.2 of this DPA.

1.9. Complaints - Redress. For the purposes of clause 11, and subject to section 3 of this DPA, Kapstan shall inform data subjects on its website of a contact point authorised to handle complaints. Kapstan 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. Kapstan shall not otherwise have any obligation to handle the request (unless otherwise agreed with Customer). The option under clause 11 shall not apply.

1.10. Liability. Kapstan's liability under clause 12(b) shall be limited to any damage caused by its Processing where Kapstan 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.  


1.11. Supervision. Clause 13 shall apply as follows:

1.11.1 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.

1.11.2. 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.

1.11.3. 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, Commission nationale de l'informatique et des libertés (CNIL) - 3 Place de Fontenoy, 75007 Paris, France shall act as competent supervisory authority.

1.11.4. 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.

1.11.5. 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.


1.12. Notification of Government Access Requests. For the purposes of clause 15(1)(a), Kapstan shall notify Customer (only) 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.

1.13. Governing Law. The governing law for the purposes of clause 17 shall be the law that is designated in the Governing Law section of the Agreement. If the Agreement is not governed by an EU Member State law, the Standard Contractual Clauses will be governed by either (i) the laws of France; or (ii) where the Agreement is governed by the laws of the United Kingdom, the laws of the United Kingdom.

1.14. Choice of forum and jurisdiction. The courts under clause 18 shall be those designated in the applicable 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 Agreement, the parties agree that the courts of either (i) France; or (ii) where the Agreement designates the United Kingdom as having exclusive jurisdiction, the United Kingdom, shall have exclusive jurisdiction to resolve any dispute arising from the Standard Contractual Clauses. For Data Subjects habitually resident in Switzerland, the courts of Switzerland are an alternative place of jurisdiction in respect of disputes.


1.15. Appendix. The Appendix shall be completed as follows:

- The contents of section 1 of Schedule 2 shall form Annex I.A to the Standard Contractual Clauses

- The contents of sections 2 to 9 of Schedule 2 shall form Annex I.B to the Standard Contractual Clauses

- The contents of section 10 of Schedule 2 shall form Annex I.C to the Standard Contractual Clauses

- The contents of section 11 of Schedule 2 to this Exhibit shall form Annex II to the Standard Contractual Clauses.


1.16. 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.

1.17. 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.

2.1. Instructions and notifications. For the purposes of clause 8.1(a), Customer hereby informs Kapstan 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 Kapstan 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 Kapstan to the relevant Controller where appropriate.

2.2. Security of Processing. For the purposes of clause 8.6(c) and (d), Kapstan shall provide notification of a personal data breach concerning Personal Data Processed by Kapstan to Customer.

2.3. Documentation and Compliance. For the purposes of clause 8.9, all enquiries from the relevant Controller shall be provided to Kapstan by Customer. If Kapstan 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.

2.4. Data Subject Rights. For the purposes of clause 10 and subject to section 3 of this DPA, Kapstan 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 2 - 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 Union

Name: Customer and its Authorized Affiliates.

Address: The address set forth in the applicable Order Form.

Contact person’s name, position and contact details: As set forth in the applicable Order Form.

Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement.

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 protection

Name: Kapstan, Inc.

Address: 23 Geary St., San Francisco, CA 94108

Contact email: privacyrequest@kapstan.io

Activities relevant to the data transferred under these clauses: Performance of the Services pursuant to the Agreement.

Role: Processor


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:

- Prospects, customers, business partners and vendors of Customer (who are natural persons)

- Employees or contact persons of Customer’s prospects, customers, business partners and vendors

- Employees, agents, advisors, freelancers of Customer (who are natural persons)

- Customer’s users authorized by Customer to use the Services


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:

First and last name
Title
Position
Employer
Contact information (company, email, phone, physical business address)
ID data
Professional life data
Personal life data
Localisation data

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:

Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.


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 PROCESSING, THE DATA TRANSFER AND FURTHER PROCESSING Kapstan will Process Personal Data as necessary to perform the Services pursuant to the Agreement, 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, Kapstan will Process Personal Data for the duration of 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:

As per 7 above, the Sub-processor will Process Personal Data as necessary to perform the Services pursuant to the Agreement. Subject to section 9 of this DPA, the Sub-processor 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:

- 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.

- 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.

- 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: Commission nationale de l'informatique et des libertés (CNIL) - 3 Place de Fontenoy, 75007 Paris, France shall act as the competent supervisory authority.

- 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.

- 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 ORGANISATIONAL 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. Data Importer will not materially decrease the overall security of the Services during a subscription term. Data Subject Requests shall be handled in accordance with section 3 of the DPA.