Data Processing Addendum (DPA)

Preamble

This Data Processing Addendum (“DPA”) supplements the Joyn Experiences, Inc. Terms and Conditions or Master Services Agreement (the “Agreement”) entered into by and between you ("you", "your", "Customer") and Joyn Experiences, Inc.  ("Zuddl" or “Company”). This DPA sets out the terms that apply to the Processing of Personal Data by the Company on behalf of Customer in the course of providing the Services under the Agreement. This DPA incorporates the terms of the Agreement, and any terms not defined in this DPA shall have the meaning set forth in the Agreement.  

All capitalized terms not defined herein will have the meanings set forth in the Agreement.

By using the Services, Customer accepts this DPA and represents and warrants that it has full authority to bind the Customer to this DPA. If you cannot or do not agree to comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.

1. Definitions

1. “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
2. “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed at trust.zuddl.com/subprocessors or (2) subsequently authorized under Section 4.2 of this DPA.
3. “Customer Account Data” means personal data that relates to Customer’s relationship with Company, including the names or contact information of individuals authorized by Customer to access Customer’s account and billing information of individuals that Customer has associated with its account. Customer Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
4. “Customer Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
5. “Data Exporter” means Customer.
6. “Data Importer” means Company. 
7. “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR” or “GDPR”), (iii) the Swiss Federal Act on Data Protection, (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”); (v) the UK Data Protection Act 2018; and (vi) the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR. 
8. “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time). 
9. “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic
   Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR. 
10.  “ex-UK Transfer” means the transfer of Personal Data, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018. 
11.  “Services” shall have the meaning set forth in the Agreement.
12.  “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.   
13.  “UK SCCs” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B1.0), issued by the Information Commissioner's Office 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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2. Relationship of the Parties; Processing of Data
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   1. The parties acknowledge and agree that with regard to the processing of Personal Data, Customer as a controller and, except as expressly set forth in this DPA or the Agreement, Company is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws.  Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith. 
   2. Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Schedule A, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws.  Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.
   3. The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Schedule A to this DPA.
   4. Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required by applicable law. If return or destruction is prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described and Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request. 
   5. CCPA. Except with respect to Customer Account Data and Customer Usage Data, the parties acknowledge and agree that Company is a service provider for the purposes of the CCPA (to the extent it applies) and is receiving personal data from Customer in order to provide the Services pursuant to the Agreement, which constitutes a business purpose.  Company shall not sell any personal Data. Company shall not retain, use or disclose any personal Data provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA.  The terms “personal Data,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Company certifies that it understands the restrictions of this Section 2.5.

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3. Confidentiality

Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company’s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.  

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4. Authorized Sub-Processors
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   1. Customer acknowledges and agrees that Company may (1) engage its affiliates and the Authorized Sub-Processors on the List (defined below) to access and process Personal Data in connection with the Services.
   2. A list of Company’s current Authorized Sub-Processors is available at trust.zuddl.com/subprocessors. Company will provide a mechanism to subscribe to notifications of new Authorized Sub-Processors.  At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will update the list and notify subscribers.  Customer may object to such an engagement by informing Company in writing within ten (10) days of receipt of the notice, provided such objection is based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.
   3. If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company.  Customer shall receive a pro-rata refund or discount of any fees paid or owed to Company under the Agreement. 
   4. If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.
   5. Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Company under this DPA with respect to the protection of Personal Data.  In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.
   6. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.
      
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5. Security of Personal Data.  

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Schedule B sets forth additional information about Company’s technical and organizational security measures.

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6. Transfers of Personal Data
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   1. The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
   2. Ex-EEA Transfers. The parties agree that ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:
      
      1. Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
      2. Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.
   3. Ex-UK Transfers. For transfers of Personal Data subject to the UK GDPR, the UK International Data Transfer Addendum to the EU SCCs (version B1.0) shall apply, completed as set forth in Schedule B.

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7. Rights of Data Subjects
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   1. Company shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.
   2. Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that Company is able to do so in accordance with all applicable laws, rules, and regulations. 

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8. Actions and Access Requests; Audits
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   1. Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
   2. Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
   3. Company shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement.  Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.
   4. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year unless otherwise required by applicable law; and (c) such audit shall be restricted to data relevant to Customer. The parties shall be responsible for their own costs associated with any such audits or inspections.  If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 8.4. 
   5. Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes the Data Protection Laws or Supervisory Authority.
   6. In the event of a Personal Data Breach, Company shall, without undue delay and no later than 72 hours, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).
   7. In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
   8. Company’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.

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9. Company’s Role as a Controller.
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   The parties acknowledge and agree that with respect to Customer Account Data and Customer Usage data, Company is an independent controller, not a joint controller with Customer. Company will process Customer Account Data and Customer Usage Data as a controller (i) to manage the relationship with Customer; (ii) to carry out Company’s core business operations, such as accounting, audits, tax preparation and filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Customer; (iv) for identity verification purposes; (v) to comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Company is subject; and (vi) as otherwise permitted under Data Protection Laws and in accordance with this DPA and the Agreement. Company may also process Customer Usage Data as a controller to provide, optimize, and maintain the Services, to the extent permitted by Data Protection Laws. Any processing by the Company as a controller shall be in accordance with the Company’s privacy policy set forth at
   https://www.zuddl.com/privacy-policy. 

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10. Conflict.
    
    ‍In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement; and (4) the Company’s privacy policy. 

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11. Limitation of Liability. 

Each party's and all of its Affiliates' liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the 'Limitation of Liability' section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and this DPA together.
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12. Term.

 This DPA will commence on the earlier of (i) the effective date of the Agreement to which it relates, or (ii) the initiation of Company's processing of Personal Data on behalf of Customer; and will continue until the Agreement expires or is terminated.
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13. Modifications. 

Each party may, by at least 45 days' prior written notice to the other party, request any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws. The parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations as soon as is reasonably practicable.

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Schedule A

Details of Processing

Nature and Purpose of Processing:   Company will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA.

Duration of Processing: Company will process Customer’s Personal Data as long as required (i) to provide the Services to Customer under the Agreement; (ii) for Company’s legitimate business needs; or (iii) by applicable law or regulation. Customer Account Data and Customer Usage Data will be processed and stored as set forth in the Company's privacy policy.

Categories of Data Subjects: Customer’s employees, consultants, contractors, and/or agents. 

Categories of Personal Data: Company processes Personal Data contained in Customer Account Data, Customer Usage Data, and any Personal Data provided by Customer or collected by Company in order to provide the Services or as otherwise set forth in the Agreement or this DPA. Categories of Personal Data include name, email, job title, username, Company device identifiers (e.g. serial number), IP address for company device, installed applications for company device, background check verification records (at discretion of Controller), security training records.  

‍Sensitive Data or Special Categories of Data: Customers are prohibited from providing sensitive personal data or special categories of data to Company, including any data which discloses the criminal history of any persons.

Schedule B

Technical And Organizational Security Measures; Cross-Border Transfer Details

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Part 1 – Security Measures

The following includes the information required by Annex II of the EU SCCs.

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Part 2 – The Parties

The following includes the information required by Annex I.A of the EU SCCs

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

Name: Customer (as identified in the Agreement)

Address: As set forth in the Agreement

Activities relevant to the data transferred under these Clauses:  As described in Section 2 of the DPA.

Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses as of the effective date of the Agreement

Data Exporter Role (controller/processor): 

Module Two: The Data Exporter is a data controller.

Module Three: The Data Exporter is a data processor.

Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]

Name: Joyn Experiences, Inc. 

        Address: 208 Littleton Street, Oakley, CA 94561

Email: security@zuddl.com 

Activities relevant to the data transferred under these Clauses: ...As described in Section 2 of the DPA. 

Signature and date: By entering into the Agreement and DPA, Data Importer is deemed to have signed these Standard Contractual Clauses as of the effective date of the Agreement

Data Importer Role (controller/processor): 

Module Two: The Data Importer is a data processor.

Module Three: The Data Importer is a sub-processor.

Part 3 - Description of the Transfer 

Part 4 - Competent Supervisory Authority 

The following includes the information required by Annex I.C of the EU SCCs.

The competent supervisory authority shall be the supervisory authority of the Data Exporter, as determined in accordance with Clause 13 of the EU SCCs.

Part 5 –EU SCCs: Selected Options

For the purposes of the EU SCCs incorporated into this DPA, the parties agree to the following selections: Clause 7 (Docking Clause) shall not apply. In Clause 9 (Sub-Processors), Option 2 (General Written Authorization) shall apply, and the method for appointing and time period for prior notice of Sub-Processor changes shall be as set forth in Section 4.2 of this DPA. In Clause 11 (Redress), the optional language shall not apply. In Clause 17 (Governing Law), Option 1 shall apply, and the EU SCCs shall be governed by the laws of the Republic of Ireland. In Clause 18(b) (Forum), disputes shall be resolved before the courts of the Republic of Ireland.

Part 6 – UK Transfer Addendum

For transfers of Personal Data subject to the UK GDPR, the UK International Data Transfer Addendum to the EU SCCs (version B1.0) shall apply. Table 1 (The Parties) shall be completed as set forth in Part 2 of this Schedule B. Table 2 (Selected SCCs, Modules and Selected Clauses) shall be completed as set forth in Part 5 of this Schedule B. Table 3 (Appendix Information) shall be completed as set forth in Parts 1, 2, 3, and 4 of this Schedule B. For Table 4 (Ending the Addendum), neither Party may end this Addendum as set out in Section 19 of the UK Addendum.

Part 7 – Switzerland Transfers

For transfers of Personal Data subject to the FADP, the EU SCCs as detailed in Part 5 of this Schedule B shall apply, adjusted as follows:

1. The Swiss Federal Data Protection and Information Commissioner ("FDPIC") shall be the sole supervisory authority for Swiss Transfers exclusively subject to the FADP.
2. References to "GDPR" in the EU SCCs shall be interpreted to include the FADP with respect to Swiss Transfers.
3. References to Regulation (EU) 2018/1725 are removed.
4. Swiss Transfers subject to both the FADP and the GDPR shall be dealt with by the FDPIC insofar as the transfer is governed by the FADP, and by the EU supervisory authority named in Part 4 of this Schedule B insofar as the transfer is governed by the GDPR.
5. References to "Union," "EU," and "EU Member State" shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs.
6. Where Swiss Transfers are exclusively subject to the FADP, all references to the GDPR in the EU SCCs are to be understood as references to the FADP.

Part 8 - List of sub-processors

Company's current list of Authorized Sub-Processors is maintained at: https://trust.zuddl.com/subprocessors

Customers may subscribe to notifications of Sub-Processor changes at the URL above.

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