Customer Data Processing Addendum

This Customer Data Processing Addendum (“DPA”) forms part of the SaaS Services Agreement (“Agreement”) between Gather Wholesale, Inc. (“Company”) and Customer. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Unless clearly stated otherwise, references to “Sections” in this DPA refer to sections of this DPA.

With respect to the Processing of Personal Data, the parties agree as follows:

Definitions. As used in this DPA:

“CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq.
“Data Breach” means any breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data Processed by Company or a Sub-processor.
“Data Controller” means an entity that determines the purposes and means of the Processing of Personal Data.
“Data Processor” means an entity that Processes Personal Data on behalf of a Data Controller.
“Data Protection Laws” means all data protection and privacy laws applicable each party’s respective activities involving the Processing of Personal Data under this DPA, including, where applicable, GDPR and CCPA.
“EEA” means, the member states of the European Union, as well as Iceland, Liechtenstein, and Norway.
"EEA Restricted Transfer” means a transfer (or onward transfer) by Customer to Company of Personal Data originating in the EEA or Switzerland that is subject to GDPR or the Swiss Federal Act on Data Protection, where any required adequacy means can be met by entering into the EU Standard Contractual Clauses.
“EU Standard Contractual Clauses” means the standard contractual clauses annexed to Commission Implementing Decision (EU) (2021/914) of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant Regulation (EU) 2016/679 of the European Parliament and of the Council under Module 2 (Transfer controller to processor) as entered by the parties and attached to this DPA as Schedule 3.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and any member state law implementing the same, and for the purpose of this DPA includes the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018).
“Personal Data” means any information relating to an identified or identifiable natural person that is (i) included in Customer Data that Company Processes on behalf of Customer in the course of providing the Services; and (ii) subject to the Data Protection Laws.
“Processing” has the meaning given to it under applicable Data Protection Laws and “process,” “processes” and “processed” shall be interpreted accordingly.
“Services” means the Services and the Implementation Services as described in the Agreement.
“Sub-processor” means any Data Processor engaged by Company to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA.
“UK Restricted Transfer” means a transfer (or onward transfer) by Customer to Company of Personal Data originating in the United Kingdom that is subject to UK GDPR where any required adequacy means can be met by entering into the UK Standard Contractual Clauses.
“UK Standard Contractual Clauses” means the standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC pursuant to the European Commission Decision of 5 February 2010, as modified by the UK Information Commissioner’s Office and entered by the parties under this DPA.

Relationship with the Agreement.

The parties agree that this DPA shall replace any existing DPA or other contractual provisions pertaining to the subject matter contained herein the parties may have previously entered into in connection with Services.
If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to the exclusions and limitations of liability, set forth in the Agreement.

Roles of the Parties; Processing of Personal Data.

As between Company and Customer, Customer is the Data Controller of Personal Data and Company is the Data Processor of Personal Data.
Customer agrees that (i) it shall comply with its obligations as a Data Controller under the Data Protection Laws in respect of its Processing of Personal Data and any Processing instructions it issues to Company; and (ii) it has provided all notices and obtained all consents and rights necessary under Data Protection Laws for Company to Process Personal Data and provide the Services as described in the Agreement. Customer shall immediately notify Company and cease Processing Personal Data in the event any required authorization or legal basis for Processing is revoked or terminates.
Company shall Process Personal Data only to provide the Services and for the purposes described in the Agreement, or otherwise in accordance with Customer’s documented and agreed-upon lawful instructions, unless Processing is required by applicable law, in which case Company shall to the extent permitted by applicable law inform Customer of that legal requirement before the relevant Processing. Company shall not otherwise retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the Services as described in the Agreement and this DPA, including retaining, using, or disclosing Personal Data for a commercial purpose other than providing the Services.
The subject matter, duration, and nature and purposes of the Processing of Personal Data; the categories of Data Subjects, and the types of Personal Data are set forth in Schedule 1 (Details of the Processing) to this DPA.

Data Security. Each party shall take appropriate technical and organizational measures against unauthorized or unlawful Processing of Personal Data or its accidental loss, destruction, or damage. Company shall implement and maintain commercially reasonable technical and organizational security measures designed to protect Personal Data from Data Breaches, including the security measures described in Schedule 2 (Technical and Organizational Measures) to this DPA. Customer agrees that it is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Personal Data when in transit, and taking any appropriate steps to securely encrypt or backup Personal Data, as well as the security obligations outlined in the Agreement.

Data Breach Response. Company shall notify Customer without undue delay after becoming aware of any Data Breach. Company shall make reasonable efforts to identify the cause of the Data Breach and shall undertake such steps as Company deems necessary and reasonable in order to remediate the cause of such Data Breach. Company shall provide information related to the Data Breach to Customer in a timely fashion and as reasonably necessary for Customer to maintain compliance with the Data Protection Laws.

Confidentiality of Processing. Company shall ensure that any person who is authorized by Company to Process Personal Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality.

Return or Deletion of Personal Data. Upon expiration or termination of the Agreement, Company shall (at Customer's election) delete or return, if feasible, to Customer all Personal Data remaining in its possession or control, save that this requirement shall not apply: (i) to the extent Company is required by applicable law to retain some or all of the Personal Data; or (ii) to Personal Data Company has archived on back-up systems. In all such cases, Company shall maintain the Personal Data securely and limit Processing to the purposes that prevent deletion or return of the Personal Data. The terms of this DPA shall survive for so long as Company continues to retain any Personal Data.

Sub-processing. Customer hereby authorizes Company to engage Sub-processors to Process Personal Data on Customer's behalf, including the Sub-processors currently engaged by Company and listed in Schedule 1 to this DPA. Company shall: (i) take commercially reasonable measures to ensure that Sub-processors have the requisite capabilities to Process Personal Data in accordance with this DPA; (ii) enter into a written agreement with each Sub-processor that requires the Sub-processor to protect the Personal Data to the same standard required by this DPA; and (iii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Company to breach any of its obligations under this DPA. Company will notify Customer in the event that it intends to engage different or additional Sub-processors that will Process Personal Data pursuant to this DPA, which may be done by email or posting on a website identified by Company to Customer. Customer must raise any objection to posted Sub-processors within thirty (30) calendar days of the posted update. Customer’s objection shall only be effective if submitted to Company in writing, specifically describing Customer’s reasonable belief that Company’s proposed use of the Sub-processor(s) will materially and adversely affect Customer’s compliance with GDPR. In any such case, the parties will make reasonable efforts to reconcile the matter. In the event Customer’s concern cannot be resolved, Company may terminate the Agreement with no penalty and Customer shall immediately pay all fees and costs then owing and incurred by Company as a result of termination.

International Transfers.

Company may Process Personal Data anywhere in the world where Company or its Sub-processors maintain data Processing operations. Company shall at all times provide an adequate level of protection for the Personal Data Processed, in accordance with the requirements of Data Protection Laws.
If and to the extent Company’s performance or Customer’s use of the Services involve an EEA Restricted Transfer, Company and Customer hereby enter into the EU Standard Contractual Clauses attached hereto as Schedule 3 to this DPA and agree that the EU Standard Contractual Clauses will govern the parties’ obligations with respect to the EEA Restricted Transfer. To the extent there is any conflict between the EU Standard Contractual Clauses and the terms of this DPA, the EU Standard Contractual Clauses will prevail with respect to the EEA Restricted Transfer.
If and to the extent Company’s performance or Customer’s use of the Services involve an EEA Restricted Transfer that includes Personal Data originating from Switzerland and is subject to the Swiss Federal Act on Data Protection of 19 June 1992 (the “FADP”), the EU Standard Contractual Clauses are deemed to be supplemented with respect to the transfer of such Personal Data originating from Switzerland with an additional annex that provides as follows:

for purposes of Clause 13 and Annex I.C of the EU Standard Contractual Clauses, the competent Supervisory Authority is the Swiss Federal Data Protection and Information Commissioner;
the term “member state” as used in the EU Standard Contractual Clauses must not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18.c of the EU Contractual Clauses.
references in the EU Standard Contractual Clauses to the GDPR should be understood as references to the FADP.

If and to the extent Company’s performance or Customer’s use of the Services involve a UK Restricted Transfer, Company and Customer hereby enter into the UK Standard Contractual Clauses, which are incorporated by reference herein. To the extent there is any conflict between the UK Standard Contractual Clauses and the terms of this DPA, the UK Standard Contractual Clauses will prevail with respect to the UK Restricted Transfer. For the purpose of any UK Restricted Transfer, the UK Standard Contractual Clauses will be deemed completed as follows:

Customer will be considered the “Data Exporter” and Company will be considered the “Data Importer.”
References in the UK Standard Contractual Clauses to “the law of the Member State in which the data exporter is established” shall hereby be deemed to mean “the law of the United Kingdom”; and any other obligation in the UK Standard Contractual Clauses determined by the law of the Member State in which the data exporter is established shall hereby be deemed to refer to an obligation under UK data protection laws.
The details of Appendix 1 to the UK Standard Contractual Clauses are set forth in Schedule 1 to this DPA.
The details of Appendix 2 to the UK Standard Contractual Clauses are set forth in Schedule 2 to this DPA.

Data Protection Authority Inquiries. Company shall provide commercially reasonable cooperation to assist Customer in its response to any requests from data protection authorities with authority relating to the Processing of Personal Data under the Agreement and this DPA. In the event that any such request is made directly to Company, Company shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If Company is required to respond to such a request, Company shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
Individual Rights and Requests. To the extent Customer does not have the ability to independently correct, amend, or delete Personal Data, or block or restrict Processing of Personal Data, then at Customer’s written direction and to the extent required by Data Protection Laws, Company shall provide reasonable assistance to Customer with any commercially reasonable request by Customer to facilitate such actions. Company shall, to the extent legally permitted, promptly notify Customer if it receives a request from an individual data subject for access to, correction, amendment or deletion of that person’s Personal Data, or a request to restrict Processing. Company shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a data subject’s request, to the extent legally permitted and to the extent Customer does not have the ability to address the request independently.
Data Protection Impact Assessments; Prior Consultations with Supervisory Authorities. Upon Customer’s written request, Company shall provide Customer with reasonable cooperation and assistance as needed to fulfil Customer’s obligation under GDPR 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 Company. Company shall further provide reasonable assistance to Customer in the cooperation or prior consultation with the supervisory authority in the performance of its tasks, to the extent required under GDPR.
Audits and Inspections. Company shall provide written responses (on a confidential basis) to all commercially reasonable requests for information made by Customer regarding Processing of Personal Data, including responses to information security reviews, that are necessary to confirm Company’s compliance with this DPA. To the extent Company’s responses are not sufficient to enable customer to satisfy its obligations under applicable Data Protection Laws, Company shall cooperate with audits and inspections performed by Customer or a vendor of Customer reasonably acceptable to Company, provided however, that any audit or inspection: (i) may not be performed unless necessary to determine Company’s compliance with this DPA and Customer reasonably believes that Company is not complying with this DPA, or as otherwise specifically required by applicable Data Protection Laws; (ii) must be conducted at Customer’s sole expense and subject to reasonable fees and costs charged by Company; (iii) may be conducted on no less than thirty (30) days prior written notice from Customer, at a date and time and for a duration mutually agreed by the parties; and (iv) must be performed in a manner that does not cause any damage, injury, or disruption to Company’s premises, equipment, personnel, or business. Notwithstanding the foregoing, Company will not be required to disclose any proprietary or privileged information to Customer or an agent or vendor of Customer in connection with any audit or inspection undertaken pursuant to this DPA.
Law Enforcement Requests. If a law enforcement or other governmental agency sends Company a request or other lawful process for Personal Data (for example, a subpoena or court order), Company may attempt to redirect the agency to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Personal Data to a law enforcement agency, then Company shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so.
Customer Obligations. Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to Company so that Company may lawfully use, process, and transfer the Personal Data in accordance with the Agreement on the Customer’s behalf. Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by any applicable Data Protection Law and acknowledges that Company is reliant on Customer for direction as to the extent to which Company is entitled to use and process the Personal Data. Company will not be liable for any claim brought against Company arising from any action or omission by Company to the extent that such action or omission resulted directly from Customer’s instructions and/or any failure of Customer to comply with this DPA.
Miscellaneous

Except as may be otherwise provided pursuant to the EU Standard Contractual Clauses or UK Standard Contractual Clauses, no one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
Unless otherwise required by the EU Standard Contractual Clauses or UK Standard Contractual Clauses, this DPA will be subject to the governing law identified in the Agreement without giving effect to conflict of laws principles.

SCHEDULE 1

Details of the Processing

Categories of Data Subjects

The Categories of Data Subjects may include the following:

employees and contractors of Customer;
speakers, presenters, and attendees at virtual events hosted by Customer through the Services; and
current and prospective customers and business partners of Customer who are natural persons.

Categories of Personal Data

The Personal Data that may be Processed are determined by Customer and may include information including:

video and audio recordings of virtual events hosted through Company’s platform;
images, content, and messages shared by and between Customer, speakers, and/or attendees of virtual events hosted through the platform;
personal contact details such as name and email address; social media identifiers; and professional information, such as job function, title, and employer; and
such other Personal Data as may be submitted by Customer as reasonably necessary for Customer to receive or use the Services.

Special Categories of Data

Special categories of data are not required to use the Service. Customer and attendees and speakers of virtual events hosted through the Services may submit special categories of data to the Services, the extent of which is determined and controlled by Customer and attendees in their sole discretion. Such special categories of data include, but may not be limited to, Personal Data with information revealing racial or ethnic origins, political opinions, religious or philosophical beliefs, trade union membership, and the processing of data concerning an individual’s health or sex life.

Subject Matter and Duration of the Processing

The subject matter of the Processing is Company’s provision to Customer of the Services. The duration of the Processing is the Term of the Agreement.

Nature and Purposes of Processing

Company will Process Personal Data as necessary to perform the Services under the Agreement, including for the purposes of: (a) setting up, operating, monitoring, and providing the Services; (b) communicating with Users; and (d) executing other agreed-upon written instructions of Customer.

Subprocessors

As of the Effective Date, the Subprocessors engaged by Company are as follows:

Algolia
Agora
Amazon Web Service
BigQuery
Fivetran
Fullstory
Heroku
Mode
Mux
Segment
Stream Chat

SCHEDULE 2

Technical and Organizational Security Measures

Company has implemented and will maintain the following technical and organizational security measures for the Processing of Personal Data:

Physical Access Controls. Policies, procedures, and controls to manage and prevent unauthorized physical access to Processing equipment or the facilities in which they are housed, including asset and device management and tracking policies and controls; locks on offices, desks, and file cabinets used to store Processing equipment; and workstation security controls including screen savers and auto-logoff.
Network and System Access Controls. Policies, procedures, and technical controls designed to prevent Processing systems from being accessed without authorization, including measures such as authentication through individual user accounts with complex passwords and multifactor authentication; virus protection; firewall protection; security patch management; and acceptable use policies governing access to and use of Company network and system resources.
Data Access Controls. Policies, procedures, and controls designed to ensure that Personal Data is accessible only by properly authorized staff, including measure such as data classification policies restricting access to and storage, disclosure, and use of Personal Data; logical access controls based on the principle of “least privilege;” and encryption of data in transit and at rest.
Data Integrity controls. Policies, procedures, and controls designed to establish that any data stored, received, controlled or otherwise accessed is not compromised and remains intact.
Logical Separation. Policies, procedures, and controls designed to ensure that data from different customers is logically segregated on systems managed by Company.
Transmission controls. Policies, procedures, and controls designed to ensure that Personal Data is protected during transmission or transport, including encryption of data in transit over public or wireless networks and policies requiring the use of approved electronic mail and electronic file transmission method.
Security Awareness and Training. A security awareness and training program for members of Company’s workforce (including management), which includes training on how to implement and comply with Company’s security program.
Security Incident Procedures. Policies and procedures to detect, respond to, and otherwise address security incidents, including procedures to monitor systems and to detect actual and attempted attacks on or intrusions into Personal Data or information systems relating thereto, and procedures to identify and respond to suspected or known security incidents, mitigate harmful effects of security incidents, and document security incidents and their outcomes.
Contingency Planning. Policies and procedures for responding to an emergency or other occurrence that affects the availability or integrity of Personal Data (for example, system failure and natural disaster), including business continuity and data backup policies and a disaster recovery plan.
Review and Adjustment. Processes for regularly testing, assessing, and evaluating the effectiveness of the technical and organizational measures implemented by the Company, and a process to implement updates and improvements to address findings and improve and adjust the security program as appropriate.

STANDARD CONTRACTUAL CLAUSES

Controller to Processor Transfers

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) () for the transfer of data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);

(iii) Clause 9(a), (c), (d) and (e);

(iv) Clause 12(a), (d) and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18(a) and (b).

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Not Used

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union () (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

(a) The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. () The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

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, as indicated in Annex I.C, 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, as indicated in Annex I.C, 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) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ();

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer 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. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.

Clause 18

Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of Ireland.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

ANNEX I

A. LIST OF PARTIES

Data exporter(s):

Name: The entity identified as “Customer” in the Agreement.

Address: The address for Customer specified in the Agreement.

Contact person’s name, position and contact details: The contact details specified in the Agreement

Activities relevant to the data transferred under these Clauses: Customer’s use of the Services provided by the data importer pursuant to the Agreement.

Signature and date: By executing the Agreement, the data exporter will be deemed to have signed this Annex I.

Role (controller/processor): Controller

Data importer(s):

Name: Gather Wholesale, Inc. (d/b/a Welcome) with a place of business at

Address: 340 S Lemon Ave, #8588, Walnut, CA US 91789

Contact person’s name, position and contact details: Jonathan Kim, Solutions Engineer, jonathan@experiencewelcome.com

Activities relevant to the data transferred under these Clauses: Provision of the Services to the data exporter pursuant to the Agreement.

Signature and date: By executing the Agreement, the data exporter will be deemed to have signed this Annex I.

Role (controller/processor): Processor.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

The Categories of Data subjects are specified in Schedule 1 to the DPA.

Categories of personal data transferred

The categories of personal data transferred are described in Schedule 1 to the DPA.

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.

Special categories of Personal Data transferred, if any, are described in Schedule 1 to the DPA. The safeguards applied to such Personal Data are described in Schedule 2 to the DPA.

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

Personal Data may be transferred on a continuous basis during the Term of the Agreement.

Nature of the processing

The nature of the processing is the data importer’s performance of the Services under the Agreement, including for the purposes of: (a) setting up, operating, monitoring, and providing the Services; (b) communicating with Users; and (d) executing other agreed-upon written instructions of the data exporter.

Purpose(s) of the data transfer and further processing

The purpose of the data transfer and further processing is the data importer’s performance of the Services under the Agreement

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

Personal Data will be retained for the duration of the Agreement and subject to Section 7 (Return or Deletion of Personal Data) of the DPA

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

The subject matter, nature, and duration of processing undertaken by sub-processors will be the same as set forth in this Annex 1.B with respect to the data importer.

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The competent supervisory authority will be the supervisory authority that has supervision over the data exporter in accordance with Clause 13.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

The technical and organizational measures adopted by the data importer are set forth in Schedule 2 to the DPA.