ClearFeed Data Processing Agreement

(Last Revised and Effective Date: April 13, 2023)

This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between ClearFeed Inc (“Company”) and the entity (“Customer”) on whose behalf Company Processes Personal Data under the Terms and Conditions available at https://clearfeed.ai/tos (the “Terms”). The Company and the Customer are hereinafter referred to individually as a “Party” and collectively as the “Parties”.

This DPA forms an integral part of the Terms and is applicable where the Company Processes Customer’s Personal Data originating from the European Economic Area (“EEA”), United Kingdom (“UK”) and/or Switzerland.

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1. DEFINITIONS

Capitalised terms not specifically defined herein shall have the meaning ascribed thereto in the Terms.

In this DPA, the following terms shall have the following meanings:

1. “Data Protection Laws” shall mean (a) the GDPR; (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (together, “UK Data Protection Laws”); (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”); (d) the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”) in each case, as may be amended, superseded or replaced.
2. “GDPR” shall mean the 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).
3. “Personal Data” shall mean any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person forming a part of Customer Data.
4. “Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.
5. “Sensitive Personal Information” shall mean information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
6. “Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914  (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, Version B1.0, in force from 21 March 2022 set forth as Schedule D (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).

“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process(ing)” shall have the meaning given to them in the GDPR.

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2. Scope and Responsibilities

2.1 This DPA applies to Processing of Personal Data originating from the UK, EEA and/or Switzerland.

2.2 The Company shall Process Personal Data only on the Customer’s behalf and at all times only in accordance with this DPA. For the avoidance of doubt, the Company shall be the Processor where Customer is the Controller of the Personal Data and where Customer is the Processor, the Company shall be the sub-processor of Personal Data.

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

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3. Term and Termination

3.1 This DPA becomes effective upon the Customer subscribing to the Service(s) by agreeing to the Terms. It shall continue to be in force and effect as long as the Company is Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.

3.2 Where amendments are required to ensure compliance of this DPA or a Schedule with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon the Customer’s request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Terms in accordance with the termination procedure contained therein.

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4. Processing Instructions

4.1 The Company will Process Personal Data in accordance with the Customer’s instructions. This DPA contains the Customer’s initial instructions to the Company. The Parties agree that the Customer may communicate any change in its initial instructions to the Company by way of amendment to this DPA, which shall be signed by the Parties.

4.2 For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g., because a new Processing purpose is introduced) will require a prior agreement between the Parties and, where applicable, shall be subject to the contract change procedure under the respective agreement.

4.3 The Company shall without undue delay inform the Customer in writing if, in its opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.

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5. SECURITY OF PERSONAL DATA

We use appropriate technical and organizational measures to protect the Personal Data that We collect and Process. The measures We use are designed to provide a level of security appropriate to the risk of Processing Your Personal Data. If You have questions about the security of Your Personal Data, please contact Us using the contact details provided under clause 12.

6. Disclosure to Third Parties; Data Subjects Rights

6.1 The Company will not disclose Personal Data to any government agency, court, or law enforcement except with the Customer’s written consent or as necessary to comply with applicable mandatory laws. If the Company is obliged to disclose Personal Data to a law enforcement agency, the Company agrees to give the Customer reasonable notice of the access request prior to granting such access, to allow the Customer to seek a protective order or other appropriate remedy. If such notice is legally prohibited, the Company will take reasonable measures to protect the Personal Data from undue disclosure as if it were the Company’s own confidential information being requested and shall inform the Customer promptly as soon as possible if and when such legal prohibition ceases to apply.

6.2 In case the Customer receives any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), the Company shall reasonably provide the Customer with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by Customer.

6.3 Where the Company receives a Request, it shall (i) not directly respond to such Request, (ii) forward the Request to the Customer within five (5) business days of identifying the Request as being related to the Customer and (iii) provide Assistance according to further instructions from Customer.

7. Technical and Organizational Measures

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

8. Assistance with Data Protection Impact Assessment

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

8.2 The Customer shall pay the Company reasonable charges for providing the assistance in Clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the Service(s).

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9. Information Rights and Audit

9.1 The Company shall, in accordance with Data Protection Laws, make available to the Customer on request in a timely manner such information as is necessary to demonstrate compliance by the Company with its obligations under the Data Protection Laws.

9.2 The Company shall, upon reasonable notice, allow for and contribute to audits of its Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to its business operations. Upon Customer’s written request at reasonable intervals, Company shall make available to Customer relevant information regarding Company’s Processing of Personal Data in the form of Company’s most recent third party audits and certifications, which may include audit reports such as SOC 2, to ensure compliance with Company’s obligations set out in this DPA. Customer agrees that such third party audits and certifications are sufficient to demonstrate Company’s compliance with the obligations set out in this DPA.

9.3 The Customer shall pay the Company reasonable costs of allowing or contributing to audits or inspections in accordance with Clause 9.2 where the Customer wishes to conduct more than one audit or inspection every twelve (12) months.

9.4 The Company will immediately refer to the Customer any requests received from national data protection authorities that relate to its Processing of Personal Data.

9.5 The Company undertakes to reasonably cooperate with the Customer in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.

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10. Personal Data Breach Notification

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

10.1 Notify the Customer of a Personal Data Breach involving the Company or a subcontractor without undue delay.

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

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11. Use of sub-processors

11.1 The Company has the Customer’s general authorization for the engagement of third-party sub-processors from an agreed list, as set forth in Schedule A. The Company will notify the Customer’s account administrator of any intended changes to that list through the appointment or replacement of any sub-processor at least fifteen (15) days in advance. The Customer may object to the Company’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, the Company will either not appoint or replace the sub-processor or, if this is not possible, the Company may suspend or terminate the Service(s) (without prejudice to any fees accrued prior to such suspension or termination).

11.2 Where the Company, with the Customer’s authorization, engages a sub-processor, it shall do so only by way of a binding written contract which imposes on the sub-processor essentially the same data protection obligations as the ones imposed on the Company under this DPA and in accordance with Art. 28 of the GDPR.

11.3 Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, the Company shall remain fully liable to the Customer for the fulfilment of its obligations under this DPA and for the performance of the sub-processor’s obligations.

12. International Data Transfers

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

12.2 For the purposes of descriptions in the SCCs, the Customer agrees that it is the “data exporter” and the Company is the “data importer”.

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

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13. Deletion or Return of Personal Data

Upon termination of the Customer’s account, the Company will delete all Customer Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that the Company is permitted by applicable law to retain some or all of the Personal Data, in which event the Company shall isolate and protect the Personal Data from any further Processing.

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14. CCPA Obligations

Notwithstanding anything to the contrary in this DPA, this Section shall apply to the Personal Information of the residents of the State of California, USA. In this section the following terms “Business”, “ServiceProvider”, “PersonalInformation”, “Consumers”, “Sell”, and “Share”, shall have the meaning given in the CCPA.

14.1 Customer acknowledges and agrees that Customer is the Business and Company is the Service Provider with respect to Personal Information of Consumers (as those terms are understood under the CCPA) disclosed by Customer to Company forming part of Service Data.

14.2 Company will not Sell, or Share the Personal Information of Consumers that Company processes on Customer’s behalf for providing the Services under the Terms and this DPA.

14.3 Company will not retain, use, or disclose Personal Information of Consumers that Company processes on Customer’s behalf when providing the Services under the Terms and this DPA for any purpose other than for the specific purposes.

14.4 Company will not combine the Personal Information that is received from or on Customer’s behalf with Personal Information that is received from or on behalf of any other person or persons or from Company’s direct interaction with the Consumers except as permitted under the CCPA.

14.5 Company will delete the Personal Information at Customer’s direction as per a Consumer request for deletion of the Personal Information and will also direct any of the Sub-processor engaged to delete such Personal Information. Company shall not directly respond to a Consumer’s deletion request without Customer’s prior authorization unless legally compelled to do so.

14.6 Company acknowledges and agrees that Customer shall be responsible for providing the required notice to Consumers with respect to sharing their Personal Information with Company.

14.7 Company acknowledges that Customer has the right upon notice to take reasonable and appropriate steps to stop and remediate the unauthorized use of the Personal Information.

14.8 During the term of the Terms, to the extent that Customer, in Customer’s use of the Services, do not have the ability to address a request from Consumers, including a request to delete Personal Information, Company shall provide reasonable cooperation to assist Customer to respond to any such requests from individuals Consumers or applicable data protection authorities relating to the processing of Personal Information under the Terms and/or this DPA when Customer is required to respond to such requests under CCPA. 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.

14.9 Company shall notify Customer immediately if Company determines that Company can no longer comply with the obligations under CCPA.

14.10 Company certifies that Company understands the restrictions in this Section and will comply with such restrictions.

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15. Miscellaneous

15.1 In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with the Company.

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

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

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

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

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The following Schedules forms an integral part of this DPA:

SCHEDULE A

A. LIST OF PARTIES UNDER THE SCCs

Data exporter(s):

The data exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.

Signature & Date:  By entering into the Terms, data exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the DPA.

Data importer(s):

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: data exporter’s customers, data exporter’s users, data exporter’s employees, admins or other individuals whose Personal Data is transmitted or made available to the data importer by the data exporter in the course of data exporter’s use of Services.

Categories of personal data transferred

The transferred Personal Data concerns the following categories of data:

The data exporter determines the categories of Personal Data which could be transferred per the Service(s) as stated in the Terms. Such categories may include the following categories of data: name, e-mail address, IP address, messages in messaging platforms, images, and any application-specific data transferred by authorized personnel of the data exporter.

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.

No sensitive data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to the data importer for processing.

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

Personal Data is transferred on a continuous basis during the term of the Customer’s account.

Nature of the processing

Collection, recording, organization, structuring, storage, retrieval, adaptation, consultation, use, disclosure by transmission or otherwise making available, erasure (whether or not by automated means).

Purpose(s) of the data transfer and further processing

Personal Data is transferred in the course of access and use by the data exporter of the Services so that the data importer may provide, support, maintain and improve the Services.

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

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

Upon termination of the data exporter’s account, the data importer will delete all Personal Data in accordance with clause 13 of the DPA.

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

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C. COMPETENT SUPERVISORY AUTHORITY

In respect of the SCCs:

Module 2: Transfer Controller to Processor

Module 3: Transfer Processor to Processor

Where the Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has over the Customer in accordance with Clause 13 of the SCCs.

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SCHEDULE B

TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

The technical and organizational measures to ensure the security of Personal Data shall be as per the SOC 2 audit report of the Company. A copy of the Company’s SOC 2 audit report may be provided at Customer’s request. Customer may request such copy by writing to the Company at.

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SCHEDULE C

As specified in Schedule A.B.

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SCHEDULE D

This UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 12.1 (a) of this DPA.

Part 1: Tables

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

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

(b) In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clauses 11.1 and 12.1(a)(i), (ii), (iii), (iv) of this DPA.

(c) In Table 3 of the UK SCCs:

i. Annex 1A: List of Parties: Parties are as set forth in Schedule A.A.

ii. Annex 1B: Description of Transfer: Description of Transfer is as set forth in Schedule A.B.

iii. Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: TOMs are as set forth in Schedule B.

iv. Annex III: List of Sub processors: Sub processors are as set forth in Schedule A.B.

(d) In Table 4 of the UK SCCs, both the data importer and the data exporter may end the UK SCCs in accordance with the terms of the UK SCCs.

Part 2: Mandatory Clauses

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

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