PROVEN DATA PROCESSING ADDENDUM (DPA)

This Data Processing Addendum, including its Schedules, (“DPA”) forms part of the Master Subscription Agreement between Proven and Customer for the purchase of the Service (the “Agreement”) 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 Service to Customer pursuant to the Agreement, Proven 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.

For the avoidance of doubt, signature of the DPA on page 8 shall be deemed to constitute signature and acceptance of the Standard Contractual Clauses, including Schedule 2. Where Customer wishes to separately execute the Standard Contractual Clauses and its Appendix, Customer should also complete the information as the data exporter and sign on page 14 (Schedule 2).

HOW THIS DPA APPLIES

If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the Proven entity that is party to the Agreement is party to this DPA.

If the Customer entity signing this DPA has executed an Order with Proven or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order and applicable renewal Order(s), and the Proven entity that is party to such Order is party to this DPA. 

  1. DATA PROCESSING TERMS

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 Service pursuant to the Agreement between Customer and Proven, but has not signed its own Order with Proven and is not a “Customer” as defined under this DPA.

CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act, 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 Orders.

Customer Data” means what is defined in the Agreement as “Customer Data”, provided that such data is electronic data and information submitted by or for Customer to the Service. This DPA does not apply to Non-Proven Applications as defined in the Agreement.

Customer Data Incident” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Proven or its Sub-processors. 

Data Protection Laws and Regulations” means all laws and regulations applicable to the Processing of Personal Data under the Agreement, including those of the European Economic Area, Switzerland, the United Kingdom and the United States and its states.

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

“Data Subject Request” means, a Data Subject’s legal 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 as set out in applicable Data Protection Laws and Regulations.

Europe” means 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.

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.

Proven” means Proven, Inc., a company incorporated in Delaware, US. 

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 Proven.

  1. 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, Proven is a Processor and that Proven will engage Sub-processors pursuant to the requirements set forth in section 5 “Sub-processors” below.

2.2 Customer’s Personal Data Obligations. Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations and where Customer is a processor, the instructions of its Controller. Customer confirms that its instructions do not conflict with the instructions of its Controller. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data, the means by which Customer acquired Personal Data. Customer acknowledges that any Processing governed by this DPA is lawful on the basis that Data Subjects have given consent. Where Customer is required by applicable Data Protection Laws and Regulations to evidence Data Subjects’ consent, it may request a copy of the consent log captured by Proven. Customer specifically acknowledges and agrees that its use of the Service 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 Proven’s Processing of Personal Data. Proven shall Process Personal Data on behalf of and only in accordance with applicable Data Protection Laws and Regulations  and Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order(s); (ii) Processing initiated by Users in their use of the Service; 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. Where Customer is a processor, Customer confirms that its instructions to Proven are consistent with the terms of the agreement between the Customer and the Controller. 

2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Proven is the performance of the Service 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.

2.5 Customer Instructions. Proven shall inform Customer if, in its opinion, Customer’s instructions for the Processing of Personal Data infringes GDPR. Where this relates to instructions from the Customer’s Controller, Customer agrees to immediately inform its Controller. 

  1. RIGHTS OF DATA SUBJECTS

3.1 Notification.  Proven shall, to the extent legally permitted, promptly notify Customer of any complaint, dispute or Data Subject Request it has received from a Data Subject. Where Customer is a processor, Customer agrees to forward any notification it receives from Proven without undue delay, to its Controller. Proven shall not respond to a complaint, dispute or Data Subject Request itself, and shall redirect the complaint, dispute or Data Subject Request as necessary to allow Customer to respond directly. Taking into account the nature of the Processing, Proven shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. 

3.2 Assistance.  In addition, to the extent Customer, in its use of the Service, does not have the ability to address a Data Subject Request, Proven shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Proven is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. Customer shall be responsible for any reasonable costs arising from Proven’s provision of such assistance.

  1. PROVEN PERSONNEL

4.1 Confidentiality. Proven 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 committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Proven shall ensure that such confidentiality commitments survive the termination of the personnel engagement.

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

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

4.4 Data Protection Officer. Proven has appointed a data protection officer. The appointed person may be reached at privacy@getproven.com.

  1. SUB-PROCESSORS

5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Proven’s Affiliates may be retained as Sub-processors; and (b) Proven and Proven’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Service. Proven or a Proven Affiliate has entered into a written agreement with each Sub-processor containing, in substance, the same data protection obligations than those in the Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Service provided by such Sub-processor.

5.2 List of Current Sub-processors and Notification of New Sub-processors. The current list of Sub-processors engaged in Processing Personal Data for the performance of each applicable Purchased Service, including a description of their processing activities and countries of location, is listed on Proven’s privacy webpage at https://getproven.com/subprocessors. Customer hereby consents to these Sub-processors, their locations and processing activities as it pertains to their Personal Data. The Infrastructure and Sub-processor Documentation contains a mechanism to subscribe to notifications of new Sub-processors for each applicable Purchased Service.

5.3 Objection Right for New Sub-processors. Customer may reasonably object to Proven’s use of a new Sub-processor by notifying Proven promptly in writing within thirty (30) days of receipt of Proven’s notice of a new Sub-processor. Proven may, but is not obligated to, make reasonable efforts to make available to Customer a change in the Service or recommend a commercially reasonable change to Customer’s configuration or use of the Service to avoid Processing of Personal Data by the objected-to new Sub-processor. If Proven is unable, to resolve Customer’s objections, Customer may terminate the applicable Order(s) with respect only to those Services which cannot be provided by Proven without the use of the objected-to new Sub-processor by providing written notice to Proven. Proven will refund Customer any prepaid but unused Fees covering the remainder of the term of such Order(s) following the effective date of termination with respect to such terminated Service, without imposing a penalty for such termination on Customer.

5.4 Liability. Proven shall be liable for the acts and omissions of its Sub-processors to the same extent Proven would be liable if performing the services of each Sub-processor directly under the terms of this DPA. Where the performance of the Service requires Proven to contract with Sub-processors who only offer click-wrap data protection agreements, namely third party cloud hosting providers, Proven shall not be liable for any Sub-processors’ acts of omissions that are not recoverable under the terms of such data protection agreements because of the Sub-processors’ decision to impose their terms on a non-negotiable basis. 

  1. SECURITY

6.1 Controls for the Protection of Customer Data. Proven 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, as set forth in Schedule 3 attached hereto. Proven regularly monitors compliance with these measures. Proven will not materially decrease the overall security of the Service during a subscription term.

6.2 Audit. Proven 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, including those obligations required by applicable Data Protection Laws and Regulations, as set forth in this section 6.2. Where Customer is a processor, Customer agrees to provide the information demonstrating compliance provided by Proven in this section 6.2, to its Controller. 

6.2.1 Third-Party Certifications and Audits. Proven has obtained the third-party certifications and audits set forth in Schedule 3 for each applicable Purchased Service. Upon Customer’s written request, and with a least thirty days’ notice, and subject to the confidentiality obligations set forth in the Agreement, Proven shall make available to Customer (or Customer’s Third-Party Auditor) information regarding Proven’s compliance with the obligations set forth in this DPA in the form of a copy of Proven’s then most recent SOC II report and an executive summary of its most recent penetration test. Such third-party audits or certifications may also be shared with Customer’s competent supervisory authority on its request. Where Proven has obtained a SOC 2 report, Proven agrees to maintain these certifications or standards, or appropriate and comparable successors thereof, for the duration of the Agreement. Customer acknowledges that any information provided under this Section 6.2 shall be considered Confidential Information.

6.2.2 Legally Mandated On-Site Audits. Where applicable Data Protection Laws and Regulations mandate that Proven must submit to an on-site audit by the Customer, Proven will permit Customer (or its Third-Party Auditor) to conduct an audit of the Processing undertaken by Proven in respect of the provision of the Service. Such on-site audits shall take place on reasonable notice and no more than annually, or if there are indications of non-compliance with this DPA from the third party certifications provided in accordance with section 6.2.1 above, more frequently. 

6.3 Data Protection Impact Assessment. Upon Customer’s request, Proven shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under Data Protection Laws and Regulations to carry out a data protection impact assessment related to Customer’s use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Proven.

  1. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION

7.1 Notification.  Proven maintains security incident management policies and procedures.  Proven shall notify Customer without undue delay after becoming aware of a “Customer Data Incident”.

7.2 Proven Responsibilities.  In respect of such Customer Data Incident, Proven shall: (i) make reasonable efforts to identify the cause; (ii) take such steps as Proven deems necessary and reasonable to remediate the cause to the extent the remediation is within Proven’s reasonable control; (iii) cooperate reasonably with the Customer and provide Customer with the information needed to fulfil its data breach obligations under Data Protection Laws and Regulations; (iv) take other further measures and actions that Proven determines are necessary to remedy or mitigate the effects of the security incident, and (v) except as required by law, Proven will not take action to notify Data Subjects of any security incident.

7.3 Exclusions.  The obligations imposed on Proven and set out in section 7.2, shall not apply to incidents that are caused by Customer or Customer’s Users.

  1. RETURN AND DELETION OF CUSTOMER DATA

8.1 Customer Data.  Customer may download Customer Data at any time during the term of the Agreement and for thirty (30) days after termination of the Agreement or this Addendum. After the thirty (30) days after termination of the Agreement or this Addendum have expired, and to the extent allowed by applicable law, Proven shall destroy the Customer Data. Customer acknowledges that Customer Data may be stored by Proven after the Termination Date pursuant to Proven’s data retention rules and back-up procedures until it is eventually deleted. To the extent that any portion of Customer Data remains in the possession of Proven following the Termination Date, Proven’s obligations set forth in this DPA shall survive termination of the Agreement or this DPA with respect to that portion of the Customer Data until it is deleted.

  1. AUTHORIZED AFFILIATES

9.1 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 Proven and each such Authorized Affiliate subject to the provisions of the Agreement and this section 9 and section 10. 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 Service 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.

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

9.3 Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to this DPA with Proven, 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: Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Proven 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.

  1. LIMITATION OF LIABILITY

10.1 Limitations.  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 Proven, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

10.2 Aggregate and Several Liability.  For the avoidance of doubt, Proven’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.

  1. EUROPE SPECIFIC PROVISIONS

11.1 Definitions. For the purposes of this section 11 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).

11.2 Transfer mechanisms for data transfers. If, in the performance of the Service, 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:some text

11.2.1 The EU C-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Controller and a data exporter of Personal Data and Proven 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 Schedule 1.

11.2.2 The EU P-to-P Transfer Clauses. Where Customer and/or its Authorized Affiliate is a Processor and a data exporter of Personal Data and Proven is a Processor and data importer in respect of that Personal Data, then the Parties shall comply with the EU P-to-P Transfer Clauses, subject to the additional terms in Schedule 1.

  1. COMPLIANCE WITH CCPA.  

12.1 CCPA.  To provide the Service Customer may disclose Personal Information to Proven. The parties agree that to provide the Service, Proven is acting as a “Service Provider” pursuant to §1798.140 of the California Consumer Protection Act (“CCPA”).  Proven shall not retain, use, or disclose Personal Information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of providing the Service and the Professional Services, as applicable, pursuant to this Agreement or as otherwise set forth in this Agreement or as permitted by the CCPA. Proven will not sell Personal Information. Customer is responsible for responding to Consumer requests using Customer’s own access to the relevant Personal Information. Upon Customer’s written request, and subject to and in accordance with all applicable laws, Proven will provide assistance, as required under CCPA, to Customer for the fulfillment of Customer’s obligations to respond to requests to exercise Consumer’s rights under CCPA with respect to Personal Information provided by Customer pursuant to this Agreement, to the extent Customer is unable to access the relevant Personal Information itself. To the extent legally permitted, Customer shall be responsible for any costs arising from Proven’s provision of such assistance.

List of Schedules

Schedule 1: Transfer Mechanisms for European Data Transfers 

Schedule 2: Description of Processing/Transfer

Schedule 3: Technical and Organizational Security Measures.

The parties’ authorized signatories have duly executed this DPA:

CUSTOMER

Signature:  

Customer Legal Name:  

Print Name:  

Title:  

Date:

 PROVEN Inc.

Signature: Print Name:

Title: ____________________________________

Date: ___________________________________

 

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 and EU P-to-P Transfer Clauses, Customer is the data exporter and Proven 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 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 2 does not explicitly mention EU P-to-P Transfer Clauses it applies to both EU C-to-P and EU P-to-P.

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 2.

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 Proven 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 this DPA, the instructions by Customer and where Customer is a processor, it’s Controller, 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 Service.

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 Proven to Customer only upon Customer's written request or where Customer is a processor, its Controller’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 organizational measures set forth in Schedule 3 meet Customer’s, or where Customer is a processor, its Controller’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 Proven provide a level of security appropriate to the risk with respect to its or its Controller’s 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 authorization for use of Sub-processors. Option 2 under clause 9 shall apply. For the purposes of clause 9(a), Proven has Customer’s general authorization to engage Sub-processors in accordance with section 5 of this DPA. Proven shall make available to Customer the current list of Sub-processors in accordance with section 5.2 of this DPA.

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 Proven may engage new Sub-processors as described in sections 5.2 and 5.3 of this DPA. Proven shall inform Customer of any changes to Sub-processors following the procedure provided for in section 5.2 of this DPA and where Customer is a processor, Customer shall bear the responsibility of informing its Controller of any changes to Sub-processors by Proven.

1.9 Complaints -– Redress. For the purposes of clause 11, and subject to section 3 of this DPA, Proven shall inform data subjects on its website of a contact point authorized to handle complaints. Proven 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. Proven 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. Proven’s liability under clause 12(b) shall be limited in aggregate by the “Limitations of Liability” section of the Agreement and shall be restricted with respect to any damage caused by its Processing where Proven 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, the Data Protection Commission – 21 Fitzwilliam Square South, Dublin 2, DO2 RD28, Ireland 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 the Data Protection Laws and Regulations of the United Kingdom (“UK Data Protection Laws and Regulations”), the Information Commissioner's Office (“ICO”) shall act as competent supervisory authority.

1.11.5 Where Customer is established in Switzerland or falls within the territorial scope of application of the Data Protection Laws and Regulations of Switzerland (“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), Proven shall notify Customer (only) and not Customer’s Controller nor the Data Subject(s) in case of government access requests. Customer shall be solely responsible for promptly notifying its Controller and the Data Subject as necessary.

1.13 Governing Law. The governing law for the purposes of clause 17 shall be the laws of Ireland.

1.14 The choice of Forum and Jurisdiction. The courts under clause 18 shall be Ireland 

1.15 Appendix. The Appendix shall be completed as follows: (i) the contents of section 1 of Schedule 2 shall form Annex I.A to the Standard Contractual Clauses; (ii) the contents of sections 2 to 9 of Schedule 2 shall form Annex I.B to the Standard Contractual Clauses; (iii) The contents of section 10 of Schedule 2 shall form Annex I.C to the Standard Contractual Clauses; (iv) 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 under the Standard Contractual Clauses. For data transfers governed by UK Data Protection Laws and Regulations, the 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 revised under Section 18 of those Mandatory Clauses ("Approved Addendum") as may be modified, updated or replaced from time to time, shall apply. The information required for Tables 1 to 3 of Part One of the Approved Addendum is set out in Schedule 2 of this DPA (as applicable). For the purposes of Table 4 of Part One of the Approved Addendum, neither party may end the Approved Addendum when it changes.

1.17 Data Exports from Switzerland under the Standard Contractual Clauses. For 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. In such circumstances, 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 Swiss Data Protection Laws. The governing law for the purposes of clause 17 shall be Switzerland and the Swiss courts shall have jurisdiction under clause 18. 

1.18 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.

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:

Contact person’s name, position and contact details:

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

Signature and date:

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: Proven, Inc.

Address: 120 Hebard St., Santa Cruz, CA  95060, USA Contact person’s name, position and contact details: Phil McNamara, privacy@getproven.com

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

Signature and date: 

Role: Processor

2. CATEGORIES OF DATA SUBJECTS WHOSE PERSONAL DATA IS TRANSFERRED

Customer may submit Personal Data to the Service, 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:

● Portfolio company users, customers, and business partners of Customer (who are natural persons)

● Employees or contact persons of Customer’s portfolio companies, customers, and business partners

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

● Customer’s Users authorized by Customer to use the Service

3. CATEGORIES OF PERSONAL DATA TRANSFERRED

Customer may submit Personal Data to the Service, 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

● Geolocation 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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:

None.

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 Service by Customer

6. NATURE OF THE PROCESSING

The nature of the Processing is the performance of the Service pursuant to the Agreement.

7. PURPOSE OF PROCESSING, THE DATA TRANSFER AND FURTHER PROCESSING

Proven will Process Personal Data as necessary to perform the Service pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Service.

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 8 of the DPA, Proven 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 Service pursuant to the Agreement. Subject to section 8 of this DPA, the Sub-processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

Identities of the Sub-processors used for the provision of the Service and their country of location are listed under on Proven’s website at www.getproven.com.

10. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with clause 13: the supervisory authority specified in section 12.11 of Schedule 1 shall act as the competent supervisory authority.

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 Service, as described in Schedule 3 applicable to the specific Service purchased by data exporter. Data Importer will not materially decrease the overall security of the Service during a subscription term. Data Subject Requests shall be handled in accordance with section 3 of the DPA.

SCHEDULE 3

TECNHOLOGY AND ORGANIZATIONAL SECURITY CONTROLS

Proven shall undertake appropriate technical and organizational measures for the availability and security of Customer Personal Data and to protect it against unauthorized or unlawful Processing and against accidental or unlawful loss, destruction, alteration or damage, and against unauthorized disclosure or access. These measures, listed below, shall take into account the nature, scope, context and purposes of the Processing, available technology as well as the costs of implementing the specific measures and shall ensure a level of security appropriate to the harm that might result from a Security Incident.

A) AES 256 bit encryption at rest and in transit

B) Redundancy, HA/DR, and Proven segments data within our platform per customer so confidentiality, and integrity is ensured. 

C) Full backups weekly and incremental backups daily. Proven retains this data for a rolling period in order to maintain restoration ability fully. 

D) Full internal infrastructure audits, as well as 3rd party audits. 

E) Proven offers SSO functionality as well as full role based authentication. All user activity and transactions are logged internally. 

F) AES 256 bit encryption via AWS in transit

G) AES 256 encryption at rest using AWS standards 

H) Proven leverages AWS for all data processing and Proven can provide AWS physical security documentation if requested. 

I) Proven logs all events in platform at a transactional level. Proven also log all internal events, changes, and updates for both production and sandbox environments. 

J) Proven maintains a full change management policy and procedures policy. This tracks Proven’s default “known good” config as well as documenting all changes, updates and fixes made outside of the default config. 

K) Proven has a full IT/IS Security policy that is reviewed and updated regularly per SOC2 guidelines.

Outside audits:

Penetration testing

SOC 2, Type II certification