THIS AGREEMENT is dated from the activation of the License Agreement (“Agreement”)

BETWEEN:

(1) KAIZAN LIMITED incorporated and registered in England and Wales with company number 13082820 whose registered office is at 7 Carlisle St, Soho, London,W1D 3BW (“Processor”).

(2) the party entering into a licence agreement for the use of Kaizan AI software (“Controller”); and

collectively the, “Parties” and each a, “Party”.

BACKGROUND

This Agreement is intended to ensure that Controller and the Processor comply with applicable Data Protection Laws.

AGREED TERMS

1. INTERPRETATION

1.1 In this Agreement, the following capitalised terms shall have the meanings set out below:

1.2 The terms, “Commission”, “Data Subject”, “Member State”, “Processing” and “Supervisory Authority” shall have the meanings given to them in the Data Protection Laws. In the event of any discrepancy between the terms of the EU GDPR and the UK GDPR, the UK GDPR will apply.

1.3 By entering into the Licence Agreement, agreeing to the terms of service applicable to the Processor’s software, or by using the Processor’s software, the Controller is agreeing to be bound by the terms of this Agreement.

2. PROCESSING OF CONTROLLER PERSONAL DATA

2.1 Processor shall:

2.1.1 comply with all applicable Data Protection Laws in the Processing of Controller Personal Data; and

2.1.2 not Process Controller Personal Data other than on Controller’s documented instructions unless Processing is required by Applicable Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Applicable Laws, inform Controller of that legal requirement before the relevant Processing of that Controller Personal Data.

2.2 The Controller and the Processor agree and acknowledge that for the purpose of the Data Protection Laws:

2.2.1 the Controller is the Data Controller and the Processor is the Data Processor; and

2.2.2 the Controller retains control of the Personal Data and remains responsible for its compliance obligations under the Data Protection Laws, including but not limited to, providing any required notices and obtaining any required consents, and for the written processing instructions it gives to the Processor.

2.3 Controller instructs the Processor to Process Controller Personal Data as reasonably necessary for the provision of the software pursuant to the Licence Agreement.

2.4 The Processor will promptly notify the Controller if, in its opinion, the Controller’s instructions do not comply with the Data Protection Laws.

2.5 The Processor must comply promptly with any Controller written instructions requiring the Processor to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

2.6 The Processor will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third-parties unless the Controller or this Agreement specifically authorises the disclosure, or as required by domestic or EU law, court or regulator (including the Commissioner). If a domestic or EU law, court or regulator (including the Commissioner) requires the Processor to process or disclose the Personal Data to a third-party, the Processor must first inform the Controller of such legal or regulatory requirement and give the Controller an opportunity to object or challenge the requirement, unless the domestic or EU law prohibits the giving of such notice.

2.7 Schedule 1 to this Agreement sets out certain information regarding the Processors’ Processing of Controller Personal Data as required by Article 28(3) of the UK GDPR.

3. PROCESSOR PERSONNEL

3.1 The Processor will ensure that all of its employees:

3.1.1 are informed of the confidential nature of the Personal Data and are bound by written confidentiality obligations and use restrictions in respect of the Personal Data;

3.1.2 have undertaken training on the Data Protection Laws and how it relates to their handling of the Personal Data and how it applies to their particular duties; and

3.1.3 are aware both of the Processor’s duties and their personal duties and obligations under the Data Protection Laws and this Agreement.

4. SECURITY AND CONFIDENTIALITY OF DATA

4.1 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, Processor shall in relation to Controller Personal Data, implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the UK GDPR.

4.2 In assessing the appropriate level of security, Processor shall in particular take account of the risks that are presented by Processing, including from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Controller Personal Data transmitted, stored or otherwise Processed.

5. SUBPROCESSING

5.1 Controller authorises the Processor to appoint Subprocessors in accordance with this Clause 5.

5.2 Processor shall give Controller prior written notice of the appointment of any Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. Processor shall not appoint (nor disclose any Controller Personal Data to the proposed Subprocessor except with the prior written consent of Controller.

5.3 With respect to each proposed Subprocessor, Processor shall:

5.3.1 before the Subprocessor first Processes Controller Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Controller Personal Data;

5.3.2 ensure that the arrangement between Processor and Subprocessor, is governed by a written contract including (i) terms which offer at least the same level of protection for Controller Personal Data as those set out in this Agreement and (ii) meet the requirements of Article 28(3) of the UK GDPR;

5.3.3 provide to Controller, for review such copies of the agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Agreement) as Controller may request from time to time; and

5.3.4 ensure the subcontractor's contract terminates automatically on termination of this Agreement for any reason.

6. DATA SUBJECT RIGHTS

6.1 The Processor must, at no additional cost to the Controller, take such technical and organisational measures as may be appropriate, and promptly provide such information to the Controller as the Controller may reasonably require, to enable the Controller to comply with:

6.1.1 the rights of Data Subjects under the Data Protection Laws, including, but not limited to, subject access rights, the rights to rectify, port and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data; and

6.1.2 information or assessment notices served on the Controller by the Commissioner or other relevant regulator under the Data Protection Laws.

6.2 The Processor must notify the Controller immediately in writing if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Laws.

6.3 The Processor must notify the Controller within 10 days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Laws.

6.4 The Processor will give the Controller, at no additional cost to the Controller, its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

6.5 The Processor must not disclose the Personal Data to any Data Subject or to a third-party other than in accordance with the Controller’s written instructions, or as required by domestic or EU law.

7. PERSONAL DATA BREACH

7.1 The Processor shall:

7.1.1 notify Controller without undue delay and in any event no later than 48 hours upon becoming aware of a Personal Data Breach affecting Controller Personal Data (“Controller Data Breach”);

7.1.2 provide Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of an Controller Data Breach under or in connection with the Data Protection Laws;

7.1.3 meaningfully consult with Controller in respect of the external communications and public relations strategy related to an Controller Data Breach;

7.1.4 subject to Applicable Law, not notify any Supervisory Authorities or other data protection regulator of an Controller Data Breach without having obtained prior written approval by Controller; and

7.1.5 not issue a press release or communicate with any member of the press in respect of a Controller Data Breach, without having obtained prior written approval by Controller.

7.2 The notification set out in Clause 7.1.1 above, shall as a minimum:

7.2.1 describe the nature of the Controller Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;

7.2.2 communicate the name and contact details of Processor’s data protection officer or other relevant contact from whom more information may be obtained;

7.2.3 describe the likely consequences of the Controller Data Breach; and

7.2.4 describe the measures taken or proposed to be taken to address the Controller Data Breach.

7.3 the Processor shall co-operate with Controller and take such reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each Controller Data Breach.

7.4 the Processor agrees that the Controller has the sole right to determine:

7.4.1 whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Controller’s discretion, including the contents and delivery method of the notice; and

7.4.2 whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

8. DATA PROTECTION IMPACT ASSESSMENT

The Processor shall provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Processor.

9. DELETION OR RETURN OF CONTROLLER PERSONAL DATA

9.1 The Processor shall, at the written direction of Controller, securely delete or return Controller Personal Data and copies thereof to Controller upon the cessation of any Services involving the Processing of Controller Personal Data.

9.2 The Processor may retain Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that the Processor shall ensure the confidentiality of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.

9.3 The Processor shall provide written certification to Controller that it has fully complied with this Clause 9 within 60 (sixty) of the date of cessation of any Services involving Controller Personal Data. As a minimum such written certification shall include:

9.3.1 confirmation of extent of Controller Personal Data has been deleted;

9.3.2 confirmation of the extent of Controller Personal Data retained as required by Applicable Laws as set out at Clause 9.2, citing the specific law (including provisions) deemed to be applicable and period of retention.

10. AUDIT RIGHTS

10.1 The Processor will keep an accurate and complete record of its Processing of Controller Personal Data. The Processor shall grant Controller and any auditors of or other advisers to Controller, access to its premises, information, systems, personnel and relevant records as may be reasonably required in order to:

10.1.1 fulfil any legally enforceable request by any regulatory body or data subject; or

10.1.2 undertake verification that obligations of the Processor are being performed in accordance with this Agreement and Applicable Laws.

10.2 Processor shall provide Controller (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit. If an audit demonstrates that the Processor is failing to comply with obligations under this Agreement then, without prejudice to any other rights and remedies of Controller, Processor shall take the necessary steps to comply with, or procure compliance with, such obligations.

10.3 The Parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under Clauses 10.1 to 10.2.

11. DATA TRANSFERS

11.1 The Processor (and any subcontractor) must not transfer or otherwise process the Personal Data outside the EEA without obtaining the Controller’s prior written consent.

11.2 Where such consent is granted, the Processor may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:

11.2.1 the Processor is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals; or

11.2.2 the Processor participates in a valid cross-border transfer mechanism under the Data Protection Laws, so that the Processor (and, where appropriate, the Controller) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the UK GDPR; or

11.2.3 the transfer otherwise complies with the Data Protection Laws.

11.3 If any Personal Data transfer between the Controller and the Processor requires execution of SCC in order to comply with the Data Protection Laws (where the Controller is the entity exporting Personal Data to the Processor outside the EEA), the parties will complete all relevant details in, and execute, the SCC and take all other actions required to legitimise the transfer.

11.4 If the Controller consents to appointment by the Processor of a subcontractor located outside the EEA in compliance with the provisions of Clause 5, then the Controller authorises the Processor to enter into SCC with the subcontractor in the Controller’s name and on its behalf. The Processor will make the executed SCC available to the Controller on request.

11.5 Additionally to the requirements set out in Clause 11.1, the Processor must ensure that any transfer of Controller Personal Data, together with other reasonably practicable compliance steps, can take place without breach of applicable Data Protection Law.

11.6 If, due to a change in Data Protection Law, a transfer of Controller Personal Data made in accordance with Clauses 11.1 to 11.3 above, can no longer take place without a breach of applicable Data Protection Law, the Processor must immediately:

11.6.1 notify the Controller in writing;

11.6.2 stop transferring any relevant Controller Personal Data; and

11.6.3 if the reason for the anticipated breach is due to one of the conditions set out in Clause 11.2 no longer meeting the requirements of Data Protection Law, establish compliance by means of an alternative condition at Clause 11.2; and

11.6.4 obtain renewed consent by Controller in accordance with Clause 11.1; and

11.6.5 ensure that the Controller Personal Data that has been transferred is returned or deleted.

12. TERMINATION

12.1 This Agreement will remain in full force and effect so long as:

12.1.1 the Licence Agreement remains in effect; or

12.1.2 the Processor retains any of the Personal Data related to the Licence Agreement in its possession or control.

13. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom.

14. Rights of third Parties

Third parties shall not be entitled to enforce any of the terms of this Agreement.

15. SEVERANCE

Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained in the Agreement.

Schedule 1

PROCESSING DETAILS

This Schedule 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.