DPA

This Data Protection Addendum (“DPA”) are Additional Terms to the Terms . Customer and Gentrace enter into this DPA by agreeing to the Terms. Capitalized terms not defined in this DPA are defined in the Agreement.

1. Definitions.

1.1. “Agreement” means the Agreement between Customer and Gentrace incorporating the Gentrace Terms .

1.2. “Audit” and “Audit Parameters” are defined in Section 9.3 below.

1.3. “Audit Report” is defined in Section 9.2 below.

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

1.5. “Customer Instructions” is defined in Section 3.1 below.

1.6. “Customer Personal Data” means Personal Data in Customer Data (as defined in the Agreement).

1.7. “Data Protection Laws” means all laws and regulations applicable to the Processing of Customer Personal Data under the Agreement, including, as applicable: (i) the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and any binding regulations promulgated thereunder (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR” or “GDPR”), (iii) the Swiss Federal Act on Data Protection (“FADP”), (iv) the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”) and (v) the UK Data Protection Act 2018; in each case, as updated, amended or replaced from time to time.

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

1.9. “EEA” means European Economic Area.

1.10. "Enterprise customer" means a Customer who is subscribed to an Enterprise plan.

1.12. “Key Terms” means Agreement and Subprocessor List .

1.13. “Personal Data” means information about an identified or identifiable natural person or which otherwise constitutes “personal data”, “personal information”, “personally identifiable information” or similar terms as defined in Data Protection Laws.

1.14. “Processing” and inflections thereof refer to any operation or set of operations that is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

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

1.16. “Restricted Transfer” means: (i) where EU GDPR applies, a transfer of Customer Personal Data from the EEA to a country outside the EEA that is not subject to an adequacy determination, (ii) where UK GDPR applies, a transfer of Customer Personal Data from the United Kingdom to any other country that is not subject to an adequacy determination or (iii) where FADP applies, a transfer of Customer Personal Data from Switzerland to any other country that is not subject to an adequacy determination.

1.17. “Schedules” means one or more schedules incorporated by the parties. The default Schedules for this DPA are:

Schedule 1: Subject Matter and Details of Processing

Schedule 2: Technical and Organizational Measures

Schedule 3: Cross-Border Transfer Mechanisms

Schedule 4: Region-Specific Terms

1.18. “Security Incident” means any breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data being Processed by Gentrace.

1.19. “Specified Notice Period” is 48 hours.

1.20. “Subprocessor” means any third party authorized by Gentrace to Process any Customer Personal Data.

1.21. “Subprocessor List” means the list of Gentrace's Subprocessors .

2. Scope and Duration.

2.1. Roles of the Parties. This DPA applies to Gentrace as a Processor of Customer Personal Data and to Customer as a Controller or Processor of Customer Personal Data.

2.2. Scope of DPA. This DPA applies to Gentrace's Processing of Customer Personal Data under the Agreement to the extent such Processing is subject to Data Protection Laws. This DPA is governed by the governing law of the Agreement unless otherwise required by Data Protection Laws.

2.3. Duration of DPA. This DPA commences with the Agreement and terminates upon expiration or termination of the Agreement (or, if later, the date on which Gentrace has ceased all Processing of Customer Personal Data).

2.4. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) any Standard Contractual Clauses or other measures to which the parties have agreed in Schedule 3 (Cross-Border Transfer Mechanisms) or Schedule 4 (Region-Specific Terms), (2) this DPA and (3) the Agreement. To the fullest extent permitted by Data Protection Laws, any claims brought in connection with this DPA (including its Schedules) will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations, set forth in the Agreement.

3. Processing of Personal Data.

3.1. Customer Instructions.

(a) Gentrace will Process Customer Personal Data as a Processor only: (i) in accordance with Customer Instructions or (ii) to comply with Gentrace's obligations under applicable laws, subject to any notice requirements under Data Protection Laws.

(b) “Customer Instructions” means: (i) Processing to provide the Service and perform Gentrace's obligations in the Agreement (including this DPA) and (ii) other reasonable documented instructions of Customer consistent with the terms of the Agreement.

(c) Details regarding the Processing of Customer Personal Data by Gentrace are set forth in Schedule 1 (Subject Matter and Details of Processing).

(d) Gentrace will notify Customer if it receives an instruction that Gentrace reasonably determines infringes Data Protection Laws (but Gentrace has no obligation to actively monitor Customer’s compliance with Data Protection Laws).

3.2. Confidentiality.

(a) Gentrace will protect Customer Personal Data in accordance with its confidentiality obligations as set forth in the Agreement.

(b) Gentrace will ensure personnel who Process Customer Personal Data either enter into written confidentiality agreements or are subject to statutory obligations of confidentiality.

3.3. Compliance with Laws.

(a) Gentrace and Customer will each comply with Data Protection Laws in their respective Processing of Customer Personal Data.

(b) Customer will comply with Data Protection Laws in its issuing of Customer Instructions to Gentrace. Customer will ensure that it has established all necessary lawful bases under Data Protection Laws to enable Gentrace to lawfully Process Customer Personal Data for the purposes contemplated by the Agreement (including this DPA), including, as applicable, by obtaining all necessary consents from, and giving all necessary notices to, Data Subjects.

3.4. Changes to Laws. The parties will work together in good faith to negotiate an amendment to this DPA as either party reasonably considers necessary to address the requirements of Data Protection Laws from time to time.

4. Subprocessors.

4.1. Use of Subprocessors.

(a) Customer generally authorizes Gentrace to engage Subprocessors to Process Customer Personal Data. Customer further agrees that Gentrace may engage its Affiliates as Subprocessors.

(b) Gentrace will: (i) enter into a written agreement with each Subprocessor imposing data Processing and protection obligations substantially the same as those set out in this DPA and (ii) remain liable for compliance with the obligations of this DPA and for any acts or omissions of a Subprocessor that cause Gentrace to breach any of its obligations under this DPA.

4.2. Subprocessor List. Gentrace will maintain an up-to-date list of its Subprocessors, including their functions and locations, as specified in the Subprocessor List .

4.3. Notice of New Subprocessors. Gentrace may update the Subprocessor List from time to time. Before any new Subprocessor Processes any Customer Personal Data, Gentrace will add such Subprocessor to the Subprocessor List and notify Customer through email.

4.4. Objection to New Subprocessors. (Enterprise Customers only)

(a) If, within 30 days after notice of a new Subprocessor, Enterprise Customer notifies Gentrace in writing that Enterprise Customer objects to Gentrace's appointment of such new Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith.

(b) If the parties are unable to reach a mutually agreeable resolution to Enterprise Customer’s objection to a new Subprocessor, Enterprise Customer, as its sole and exclusive remedy, may terminate the Order for the affected Service for convenience and Gentrace will refund any prepaid, unused fees for the terminated portion of the Subscription Term.

5. Security.

5.1. Security Measures. Gentrace will implement and maintain reasonable and appropriate technical and organizational measures, procedures and practices, as appropriate to the nature of the Customer Personal Data, that are designed to protect the security, confidentiality, integrity and availability of Customer Personal Data and protect against Security Incidents, in accordance with Gentrace's Security Measures referenced in the Agreement and as further described in Schedule 2 (Technical and Organizational Measures). Gentrace will regularly monitor its compliance with its Security Measures and Schedule 2 (Technical and Organizational Measures).

5.2. Incident Notice and Response.

(a) Gentrace will implement and follow procedures to detect and respond to Security Incidents.

(b) Gentrace will: (i) notify Customer without undue delay and, in any event, not later than the Specified Notice Period, after becoming aware of a Security Incident affecting Customer and (ii) make reasonable efforts to identify the cause of the Security Incident, mitigate the effects and remediate the cause to the extent within Gentrace's reasonable control.

(c) Upon Customer’s request and taking into account the nature of the applicable Processing, Gentrace will assist Customer by providing, when available, information reasonably necessary for Customer to meet its Security Incident notification obligations under Data Protection Laws.

(d) Customer acknowledges that Gentrace's notification of a Security Incident is not an acknowledgement by Gentrace of its fault or liability.

(e) Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful login attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.

5.3. Customer Responsibilities.

(a) Customer is responsible for reviewing the information made available by Gentrace relating to data security and making an independent determination as to whether the Service meets Customer’s requirements and legal obligations under Data Protection Laws.

(b) Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any obligations to give notices to government authorities, affected individuals or others relating to any Security Incidents.

6. Data Protection Impact Assessment.

For Enterprise Customers only.

Upon Enterprise Customer’s request and taking into account the nature of the applicable Processing, to the extent such information is available to Gentrace, Gentrace will assist Enterprise Customer in fulfilling Enterprise Customer’s obligations under Data Protection Laws to carry out a data protection impact or similar risk assessment related to Customer’s use of the Service, including, if required by Data Protection Laws, by assisting Enterprise Customer in consultations with relevant government authorities.

7. Data Subject Requests.

7.1. Assisting Customer. Upon Customer’s request and taking into account the nature of the applicable Processing, Gentrace will assist Customer by appropriate technical and organizational measures, insofar as possible, in complying with Customer’s obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws, provided that Customer cannot reasonably fulfill such requests independently (including through use of the Service).

7.2. Data Subject Requests. If Gentrace receives a request from a Data Subject in relation to the Data Subject’s Customer Personal Data, Gentrace will notify Customer and advise the Data Subject to submit the request to Customer (but not otherwise communicate with the Data Subject regarding the request except as may be required by Data Protection Laws), and Customer will be responsible for responding to any such request.

8. Data Return or Deletion.

8.1. During Subscription Term. During the Subscription Term, Customer may, through the features of the Service, access, return to itself or delete Customer Personal Data.

8.2. Post Termination.

(a) Following termination or expiration of the Agreement, Gentrace will, in accordance with its obligations under the Agreement, delete all Customer Personal Data from Gentrace's systems.

(b) Deletion will be in accordance with industry-standard secure deletion practices. Gentrace will issue a certificate of deletion upon Customer’s request.

(c) Notwithstanding the foregoing, Gentrace may retain Customer Personal Data: (i) as required by Data Protection Laws or (ii) in accordance with its standard backup or record retention policies, provided that, in either case, Gentrace will (x) maintain the confidentiality of, and otherwise comply with the applicable provisions of this DPA with respect to, retained Customer Personal Data and (y) not further Process retained Customer Personal Data except for such purpose(s) and duration specified in such applicable Data Protection Laws.

9. Audits.

9.1. Gentrace Records Generally. Gentrace will keep records of its Processing in compliance with Data Protection Laws and, upon Customer’s request, make available to Customer any records reasonably necessary to demonstrate compliance with Gentrace's obligations under this DPA and Data Protection Laws.

9.2. Third-Party Compliance Program.

For Enterprise Customers only.

(a) Gentrace will describe its third-party audit and certification programs (if any) and make summary copies of its audit reports (each, an “Audit Report”) available to Enterprise Customer upon Enterprise Customer’s written request at reasonable intervals (subject to confidentiality obligations).

(b) Enterprise Customer may share a copy of Audit Reports with relevant government authorities as required upon their request.

(c) Enterprise Customer agrees that any audit rights granted by Data Protection Laws will be satisfied by Audit Reports and the procedures of Section 9.3 (Customer Audit) below.

9.3. Customer Audit.

For Enterprise Customers only.

(a) Subject to the terms of this Section 9.3, Enterprise Customer has the right, at Enterprise Customer’s expense, to conduct an audit of reasonable scope and duration pursuant to a mutually agreed-upon audit plan with Gentrace that is consistent with the Audit Parameters (an “Audit”).

(b) Enterprise Customer may exercise its Audit right: (i) to the extent Gentrace's provision of an Audit Report does not provide sufficient information for Enterprise Customer to verify Gentrace's compliance with this DPA or the parties’ compliance with Data Protection Laws, (ii) as necessary for Customer to respond to a government authority audit or (iii) in connection with a Security Incident.

(c) Each Audit must conform to the following parameters (“Audit Parameters”): (i) be conducted by an independent third party that will enter into a confidentiality agreement with Gentrace, (ii) be limited in scope to matters reasonably required for Enterprise Customer to assess Gentrace's compliance with this DPA and the parties’ compliance with Data Protection Laws, (iii) occur at a mutually agreed date and time and only during Gentrace's regular business hours, (iv) occur no more than once annually (unless required under Data Protection Laws or in connection with a Security Incident), (v) cover only facilities controlled by Gentrace, (vi) restrict findings to Enterprise Customer Personal Data only and (vii) treat any results as confidential information to the fullest extent permitted by Data Protection Laws.

10. Cross-Border Transfers/Region-Specific Terms.

10.1. Cross-Border Data Transfers.

(a) Gentrace (and its Affiliates) may Process and transfer Customer Personal Data globally as necessary to provide the Service.

(b) If Gentrace engages in a Restricted Transfer, it will comply with Schedule 3 (Cross-Border Transfer Mechanisms).

10.2. Region-Specific Terms. To the extent that Gentrace Processes Customer Personal Data protected by Data Protection Laws in one of the regions listed in Schedule 4 (Region-Specific Terms), then the terms specified therein with respect to the applicable jurisdiction(s) will apply in addition to the terms of this DPA.

Schedule 1: Subject Matter and Details of Processing

Data Exporter Details

Name: Customer

Contact details for data protection: Provided in this Agreement or in Customer's Gentrace account

Main address: Provided in this Agreement or in Customer's Gentrace account.

Activities: Processing Customer Personal Data and Account Data for the purpose of providing, supporting, and improving the Services.

Role: Controller

Data Importer Details

Name: Pragli, Inc

Contact details for data protection: Specified elsewhere in the Agreement, or else support@gentrace.ai.

Main address: 2261 Market Street #4538 San Francisco, CA 94114

Activities: Processing Customer Personal Data and Account Data for the purpose of providing, supporting, and improving the Services.

Role: Processor

Details of Processing

Categories of Data Subjects: the data subjects may include Customer’s employees, customers, vendors, and end-users.

Categories of Customer Personal Data: the Personal Data that is sent to Gentrace by Customer for the purpose of using the Services.

Sensitive Categories of Data and additional associated restrictions/safeguards: Customer is responsible for ensuring that no sensitive categories of data is submitted to Gentrace.

Frequency of transfer: the data is transfered continuously at Customer's discretion.

Nature of the Processing: outlined in this Agreement and Privacy Policy

Purpose of the Processing: to provide, support, and improve the Service.

Duration of Processing / retention period: specified in the Agreement, Documentation, and Privacy Policy

Transfers to Subprocessors: to provide, support, and improve the Services

Schedule 2: Technical and Organizational Measures

As of the date of this DPA, Gentrace's technical and organizational measures include the following.

1. Access Control

Gentrace restricts access to Customer Personal Data to employees with a defined need-to-know or a role requiring such access.
Gentrace maintains user access controls that address timely provisioning and de-provisioning of user accounts.

2. Audit

Gentrace will maintain SOC 2 certification, or comparable certification, for the term of the Agreement. This certification will be renewed on an annual basis. Upon Enterprise Customer’s request, Gentrace will provide a summary of its most recent SOC 2 report once every 12 months of the term of the Agreement.

3. Business Continuity

Gentrace maintains business continuity, backup, and disaster recovery plans (“BC/DR Plans”) in order to minimize the loss of service.
The BC/DR Plans address threats to the Service and any dependencies, and have an established procedure for resuming access to, and use of, the Service.
The BC/DR Plans are tested at regular intervals.

4. Change Control

Gentrace maintains policies and procedures for applying changes to the Service, including underlying infrastructure and system components, to ensure quality standards are being met.
Gentrace undergoes a penetration test of its network and Service on an annual basis.
Gentrace regularly performs vulnerability scans of its network.
Gentrace maintains an environment for testing and development separate from the production environment.

5. Data Security

Gentrace maintains technical safeguards and other security measures to ensure the security and confidentiality of Customer Personal Data.

6. Encryption and Key Management

Gentrace maintains policies and procedures for the management of encryption mechanisms and cryptographic keys.
Gentrace enlists encryption at rest and in transit between public networks, as applicable, according to industry-standard practice.

7. Governance and Risk Management

Gentrace maintains an information security program that is reviewed at least annually.
Gentrace maintains a risk management program, with risk assessments conducted at least annually.

8. Administrative Controls

Gentrace uses a third-party to conduct employee background verifications for all Gentrace personnel with access to Customer Personal Data.
Gentrace employees are required to complete initial (at-hire) and annual security awareness training.

Schedule 3: Cross-Border Transfer Mechanisms

1. Definitions. Capitalized terms not defined in this Schedule are defined in the DPA.

1.1. “EU Standard Contractual Clauses” or “EU SCCs” means the Standard Contractual Clauses approved by the European Commission in decision 2021/914.

1.2. “UK International Data Transfer Agreement” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner, Version B1.0, in force as of March 21, 2022.

2. EU Transfers. Where Customer Personal Data is protected by EU GDPR and is subject to a Restricted Transfer, the following applies:

2.1. The EU SCCs are hereby incorporated by reference as follows:

(a) Module 2 (Controller to Processor) applies where Customer is a Controller of Customer Personal Data and Gentrace is a Processor of Customer Personal Data;

(b) Module 3 (Processor to Processor) applies where Customer is a Processor of Customer Personal Data (on behalf of a third-party Controller) and Gentrace is a Processor of Customer Personal Data;

(d) by entering into this DPA, each party is deemed to have signed the EU SCCs (including their Annexes) as of the DPA Effective Date.

2.2. For each Module, where applicable the following applies:

(a) the optional docking clause in Clause 7 does not apply;

(b) in Clause 9, Option 2 will apply, the minimum time period for prior notice of Subprocessor changes shall be as set out in Section 4.3 of this DPA, and Gentrace shall fulfill its notification obligations by notifying Customer of any Subprocessor changes in accordance with Section 4.3 of this DPA;

(d) in Clause 13, all square brackets are removed with the text remaining;

(e) Schedule 1 (Subject Matter and Details of Processing) to this DPA contains the information required in Annex 1 of the EU SCCs; and

(f) Schedule 2 (Technical and Organizational Measures) to this DPA contains the information required in Annex 2 of the EU SCCs.

2.3. Where context permits and requires, any reference in this DPA to the EU SCCs shall be read as a reference to the EU SCCs as modified in the manner set forth in this Section 2.

3. Swiss Transfers. Where Customer Personal Data is protected by the FADP and is subject to a Restricted Transfer, the following applies:

3.1. The EU SCCs apply as set forth in Section 2 (EU Transfers) of this Schedule 3 with the following modifications:

(a) in Clause 13, the competent supervisory authority shall be the Swiss Federal Data Protection and Information Commissioner;

(b) in Clause 17 (Option 1), the EU SCCs will be governed by the laws of Switzerland;

(d) the term Member State must not be interpreted in such a way as to exclude Data Subjects in Switzerland from enforcing their rights in their place of habitual residence in accordance with Clause 18(c); and

(e) all references to the EU GDPR in this DPA are also deemed to refer to the FADP.

4. UK Transfers. Where Customer Personal Data is protected by the UK GDPR and is subject to a Restricted Transfer, the following applies:

4.1. The EU SCCs apply as set forth in Section 2 (EU Transfers) of this Schedule 3 with the following modifications:

(a) each party shall be deemed to have signed the “UK Addendum to the EU Standard Contractual Clauses” (“UK Addendum”) issued by the Information Commissioner’s Office under section 119 (A) of the Data Protection Act 2018;

(b) the EU SCCs shall be deemed amended as specified by the UK Addendum in respect of the transfer of Customer Personal Data;

(c) in Table 1 of the UK Addendum, the parties’ key contact information is located in Schedule 1 (Subject Matter and Details of Processing) to this DPA;

(d) in Table 2 of the UK Addendum, information about the version of the EU SCCs, modules and selected clauses which this UK Addendum is appended to are located above in this Schedule 3;

(e) in Table 3 of the UK Addendum:

(i) the list of parties is located in Schedule 1 (Subject Matter and Details of Processing) to this DPA;

(ii) the description of transfer is located in Schedule 1 (Subject Matter and Details of Processing) to this DPA;

(iii) Annex II is located in Schedule 2 (Technical and Organizational Measures) to this DPA; and

(iv) the list of Subprocessors is located in Schedule 1 (Subject Matter and Details of Processing) to this DPA.

(f) in Table 4 of the UK Addendum, both the Importer and the Exporter may end the UK Addendum in accordance with its terms (and the respective box for each is deemed checked); and

(g) in Part 2: Part 2 – Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with section 119 (A) of the Data Protection Act 2018 on 2 February 2022, as it is revised under section ‎‎18 of those Mandatory Clauses.

Schedule 4: Region-Specific Terms

A. CALIFORNIA

1. Definitions. CCPA and other capitalized terms not defined in this Schedule are defined in the DPA.

1.1. “business purpose”, “commercial purpose”, “personal information”, “sell”, “service provider” and “share” have the meanings given in the CCPA.

1.2. The definition of “Data Subject” includes “consumer” as defined under the CCPA.

1.3. The definition of “Controller” includes “business” as defined under the CCPA.

1.4. The definition of “Processor” includes “service provider” as defined under the CCPA.

2. Obligations.

2.1. Customer is providing the Customer Personal Data to Gentrace under the Agreement for the limited and specific business purposes of providing the Services as described in Schedule 1 (Subject Matter and Details of Processing) to this DPA and otherwise performing under the Agreement.

2.2. Gentrace will comply with its applicable obligations under the CCPA and provide the same level of privacy protection to Customer Personal Data as is required by the CCPA.

2.3. Gentrace acknowledges that Customer has the right to: (i) take reasonable and appropriate steps under Section 9 (Audits) of this DPA to help to ensure that Gentrace's use of Customer Personal Data is consistent with Customer’s obligations under the CCPA, (ii) receive from Gentrace notice and assistance under Section 7 (Data Subject Requests) of this DPA regarding consumers’ requests to exercise rights under the CCPA and (iii) upon notice, take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Personal Data.

2.4. Gentrace will notify Customer promptly after it makes a determination that it can no longer meet its obligations under the CCPA.

2.5. Gentrace will not retain, use or disclose Customer Personal Data: (i) for any purpose, including a commercial purpose, other than the business purposes described in Section 2.1 of this Section A (California) of Schedule 4 or (ii) outside of the direct business relationship between Gentrace with Customer, except, in either case, where and to the extent permitted by the CCPA.

2.6. Gentrace will not sell or share Customer Personal Data received under the Agreement.

2.7. Gentrace will not combine Customer Personal Data with other personal information except to the extent a service provider is permitted to do so by the CCPA.

Attribution notice: this agreement was adapted from the Bonterms Data Protection Addendum and usage is regulated by this license .

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