This Data Processing Addendum (“DPA”) supplements the Customer Terms of Use for Averi Platform (the “Agreement”) entered into by and between Customer subject to the Agreement (“Customer”) and Averi, Inc. and/or one or more of its Affiliates (“Averi”) (and together, the “Parties”). This DPA incorporates the terms of the Agreement, and any capitalized terms that are used but not defined in this DPA shall have the meanings set forth in the Agreement.  

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) Averi’s privacy policy, set forth at www.averi.ai/privacy (“Privacy Policy”). Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement. 

1. Definitions

   1. “Authorized Subprocessor” means a third-party party subprocessor, subcontractor, agent, reseller, or auditor engaged by Averi, or employee of the same who has a need to know or otherwise access Personal Data to enable Averi to perform its obligations under this DPA or the Agreement, and that has been previously approved in accordance with the procedure set forth in and that comply with the requirements set forth in Section 6.

   2. “Data Privacy Framework” means, as applicable, EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and/or the Swiss-U.S. Data Privacy Framework.  

   3. “Data Subject” means a natural person whose Personal Data is protected by Privacy Laws. For the avoidance of doubt, “Data Subject” includes the term “Consumer” under Privacy Laws.

   4. “Data Subject Rights” means the rights recognized and granted to Data Subjects with respect to their Personal Data under Privacy Laws, including, as applicable, the GDPR (as set forth in Articles 12 through 22 thereof) and the Data Privacy Framework.

   5. “EU SCCs” means 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), as modified by Section 9 of this DPA. 

   6. “ex-EEA Transfer” means the transfer of Personal Data subject to the GDPR from the European Economic Area (the “EEA”), to a country where the transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR. 

   7. “ex-UK Transfer” means the transfer of Personal Data subject to Chapter V of the UK GDPR from outside the United Kingdom (the “UK”) where 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. 

   8. “Personal Data” means any information provided to Averi by or on behalf of Customer in connection with the Services that relates to an identified or identifiable Data Subject and constitutes “personal data,” “personal information,” or equivalent term under Privacy Laws.  

   9. “Privacy Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the processing of Personal Data including, each to the extent applicable (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and 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”) (together, collectively, the “GDPR”), (ii) the Swiss Federal Act on Data Protection, (iii) the UK Data Protection Act 2018, (iv) the Privacy and Electronic Communications (EC Directive) Regulations 2003, (v) the California Consumer  Privacy Act, as amended by the California Privacy Rights Act of 2020 (the “CCPA”); in each case, as updated, amended or replaced from time to time. The terms “controller,” “cross-contextual behavioral advertising,” “Personal Data Breach,” “processor,” “process” or “processing,” “sell,”  “share,” “supervisory authority,” or “targeted advertising” shall have the meanings set forth for those or equivalent terms under Privacy Laws. 

   10. “Standard Contractual Clauses” means, as applicable, the EU SCCs and the UK SCCs.

   11. “UK Addendum” means International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the Information Commissioner under S119A(1) Data Protection Act of 2018, as completed in Exhibit C.

   12. “UK SCCs” means the EU SCCs, as amended by the UK Addendum.

2. Role of the Parties; Description of Processing. 

   1. With respect to Personal Data, Customer is the Controller and Averi is a Processor, or to the extent Customer is a Processor to a third-party Controller, except as expressly set forth in this DPA or the Agreement, Averi is a subprocessor. 

   2. Averi shall not process not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with 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 Averi is subject; in such a case, Averi 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 Privacy Laws.  Customer hereby instructs Averi to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services. The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects involved, are described in Exhibit A to this DPA. 

3. Compliance with Privacy Laws. 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 Privacy Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Averi to be in breach of the Privacy Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Averi by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Averi regarding the processing of such Personal Data. Customer shall not provide or make available to Averi any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Averi from all claims and losses in connection therewith. Averi shall immediately notify Customer if an instruction, in Averi’s opinion, infringes Privacy Laws or instruction of a Supervisory Authority.

4. Use of Personal Data. Averi shall not: (i) sell Personal or share Personal Data; (ii) retain, use, or disclose Personal Data outside of Averi’s direct business relationship with Customer or for any purpose other than as necessary to perform the Services for Customer pursuant to the Agreement, except as otherwise permitted in Agreement or by Privacy Laws; and (iii) combine Personal Data received from, or on behalf of, Customer with Personal Data that it receives from, or on behalf of, another party or person except as necessary to provide the Services or as otherwise instructed by Customer.  

5. Audit. 

   1. Averi shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA.  Customer shall, with reasonable notice to Averi, have the right to review, audit and copy such records at Averi’s offices during regular business hours in accordance with Section 5.2. 

   2. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Averi shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Averi’s compliance with prevailing data security standards applicable to the processing of Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Privacy Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Averi’s data security infrastructure and procedures that is sufficient to demonstrate Averi’s compliance with its obligations under Privacy 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 Averi’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Averi for any time expended for on-site audits. If Customer and Averi have entered into Standard Contractual Clauses as described in Section 9 (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 5.2. 

6. Authorized Subprocessors. 

   1. Customer acknowledges and agrees that Averi may (1) engage its affiliates as well as the Authorized Subprocessors listed in Exhibit B to this DPA to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data pursuant to Section 6.2. By way of this DPA, Customer provides general written authorization to Averi to engage subprocessors as necessary to perform the Services.

   2. A list of Averi’s current Authorized Subprocessors can be found at: www.averi.ai/sp (the “List”) will be made available to Customer, either attached hereto, at a link provided to Customer, via email or through another means made available to Customer.  Such List may be updated by Averi from time to time.  Averi may provide a mechanism to subscribe to notifications of new Authorized Subprocessors and Customer agrees to subscribe to such notifications where available.  At least ten (10) days before enabling any third party other than existing Authorized Subprocessors to access or participate in the processing of Personal Data, Averi will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Averi within ten (10) days of receipt of the aforementioned notice to Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain subprocessors are essential to providing the Services and that objecting to the use of a subprocessor may prevent Averi from offering the Services to Customer. If Customer does not object to the engagement of a third party within ten (10) days of notice by Averi, that third party will be deemed an Authorized Subprocessor.

   3. If Customer reasonably objects to an engagement in accordance with Section 6.2, and Averi 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 Averi.  Discontinuation shall not relieve Customer of any fees owed to Averi under the Agreement. 

   4. Averi will enter into a written agreement with the Authorized Subprocessor imposing on the Authorized Subprocessor data protection obligations comparable to those imposed on Averi under this DPA with respect to the protection of Personal Data.  In case an Authorized Subprocessor fails to fulfill its data protection obligations under such written agreement with Averi, Averi will remain liable to Customer for the performance of the Authorized Subprocessor’s obligations under such agreement.

   5. If Customer and Averi have entered into Standard Contractual Clauses as described in Section 9 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Averi 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 Subprocessors that must be provided by Averi 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 Averi beforehand, and that such copies will be provided by Averi only upon request by Customer.

7. Confidentiality; Security of Personal Data.

   1. Averi shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Averi’s confidentiality obligations in the Agreement. Customer agrees that Averi 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.

   2. 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, Averi shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data, a description of which can be found at: www.averi.ai/sc.  

8. Personal Data Breach. 

   1. In the event of a Personal Data Breach, Averi shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Averi in its sole discretion deems necessary and reasonable to remediate such Personal Data Breach (to the extent that remediation is within Averi’s reasonable control).

   2. In the event of a Personal Data Breach, Averi shall, taking into account the nature of the processing and the information available to Averi, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under Privacy Laws with respect to notifying (i) the relevant Supervisory Authority or regulatory agency and (ii) Data Subjects affected by such Personal Data Breach without undue delay.

   3. The obligations described in Sections 8.1 and 8.2 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Averi’s obligation to report or respond to a Personal Data Breach under Sections 8.1 and 8.2 will not be construed as an acknowledgement by Averi of any fault or liability with respect to the Personal Data Breach.  

9. Transfers of Personal Data.

   1. The parties agree that Averi may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Averi’s primary processing operations take place in the United States, and that the transfer of Personal Data to the United States is necessary for the provision of the Services to Customer. If Averi transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Averi will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Privacy Laws.

   2. Ex-EEA Transfers. The Parties agree that ex-EEA Transfers shall either be made pursuant to (i) the Data Privacy Framework to the extent the recipient of the ex-EEA Transfer is certified accordingly, or (ii) the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

      1. Module One (Controller to Controller) of the EU SCCs applies when Averi is processing Personal Data as a controller pursuant to Section 9 of this DPA. 

      2. Module Two (Controller to Processor) of the EU SCCs applies when Customer is a controller and Averi is a processor of Personal Data in accordance with Section 2 of this DPA.

      3. Module Three (Processor to Subprocessor) of the EU SCCs applies when Customer is a processor and Averi is a subprocessor of Personal Data in accordance with Section 2 of this DPA. 

   3. For each module, where applicable the following applies: 

      1. The optional docking clause in Clause 7 does not apply. 

      2. In Clause 9, Option 1 (specific prior authorization) applies, and the minimum time period for prior notice of subprocessor changes shall be as set forth in Section 6.1 of this DPA.

      3. In Clause 11, the optional language does not apply. 

      4. All square brackets in Clause 13 are hereby removed. 

      5. In Clause 17 (Option 1), the EU SCCs will be governed by the laws of the Republic of Ireland. 

      6. In Clause 18(b), disputes will be resolved before the courts of the Republic of Ireland.  

      7. Exhibit B to this DPA contains the information required in Annex I of the EU SCCs. 

      8. The information required in Annex II of the EU SCCs can be found at: www.averi.ai/sc,

      9. By entering into this DPA, the Parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes. 

   4. Ex-UK Transfers. The Parties agree that ex-UK Transfers shall either be made pursuant to (i) the Data Privacy Framework to the extent that recipient of the ex-UK Transfer is certified accordingly, or (ii) the UK SCCs, which are deemed entered into and incorporated into this DPA by reference.

   5. Transfers from Switzerland. The Parties agree that transfers from Switzerland shall either be made pursuant to (i) the Data Privacy Framework to the extent that recipient of the transfer from Switzerland is certified accordingly, or (ii) the EU SCCs with the following modifications: 

      1. The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.

      2. The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP. 

      3. Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Clause 13 shall be observed. 

      4. The term “EU Member State” as utilized in the EU SCCs 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. Supplementary Measures. In respect of any transfer of Personal data made pursuant to the Standard Contractual Clauses, the following supplementary measures shall apply:

      1. As of the date of this DPA, Averi has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) such Personal Data (“Government Agency Requests”).

      2. If, after the date of this DPA, Averi receives any Government Agency Requests, Averi shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Averi may provide Customer’s basic contact information to the government agency. If compelled to disclose Personal Data to a law enforcement or government agency, Averi shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Averi is legally prohibited from doing so. Averi shall not voluntarily disclose Personal Data to any law enforcement or government agency. Customer and Averi shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests.

      3. The Customer and Averi will meet regularly to consider whether: (i) the protection afforded by the laws of the country of Averi to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, as applicable; (ii) additional measures are reasonably necessary for the transfer to comply with Privacy Laws; and (iii) it is still appropriate for Personal Data to be transferred to the relevant Averi, taking into account all relevant information available, including guidance by supervisory authorities, to the Parties. 

      4. If either (i) any of the means of legitimizing a transfer cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, Customer and Averi agree to amend the means of legitimizing transfers or alternative arrangements in respect of such transfers, as required by Privacy Laws. To the extent necessary to ensure the enforceability of the Standard Contractual Clauses, the Customer and Averi shall execute the Standard Contractual Clauses as a separate agreement.

10. Data Protection Assessments. Taking into account the nature of Averi’s processing and the information available to Averi, Averi shall reasonably cooperate with Customer to conduct any data protection or privacy impact assessments as required by Privacy Laws, including by providing Customer with information and documents necessary for such assessments that Customer cannot otherwise obtain without Averi’s assistance. Notwithstanding the foregoing, Customer and Averi each remain responsible only for the measures respectively allocated to them under Privacy Laws pertaining to any such assessment.

11. Data Subject Request. 

    1. 11.1. Averi shall, to the extent permitted by Privacy Laws, notify Customer upon receipt of a request by a Data Subject to exercise Data Subject Rights under Privacy Laws with respect to his or her Personal Data (each a “Data Subject Request”). If Averi receives a Data Subject Request in relation to Personal Data, Averi 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 communicated to Averi, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.

    2. Averi 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 (i) Customer is itself unable to respond without Averi’s assistance and (ii) Averi is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Averi.

12. Return or Destruction of Personal Data.  Upon the termination or expiration of the Agreement, at Customer’s choice, Averi shall return or delete Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Averi 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 Averi have entered into Standard Contractual Clauses as described in Section 9 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in  Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Averi to Customer only upon Customer’s request.

13. Averi’s Role as a Controller. The parties acknowledge and agree that with respect to Business Contact Data and Usage Data, Averi is an independent controller, not a joint controller with Customer. Averi will process Business Contact Data and Usage Data as a controller (i) to manage the relationship with Customer; (ii) to carry out Averi’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 Averi is subject; and (vi) as otherwise permitted under Privacy Laws and in accordance with this DPA and the Agreement. Averi may also process Usage Data as a controller to provide, optimize, and maintain the Services, to the extent permitted by Privacy Laws. Any processing by Averi as a controller shall be in accordance with Averi’s Privacy Policy.