Data Processing Addendum

This Data Processing Addendum (“DPA” or “Addendum”) is incorporated into and subject to the VitoSurveys Terms of Service located at https://vitosurveys.com/terms-of-service (otherwise known as “Service Agreement” or “Agreement”) and entered into between Kameleon Solutions including its Affiliates and the Customer. This Addendum has been entered to ensure utmost privacy, security and data protection in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 – 1798.199) (“CCPA”), the UK General Data Protection Regulation where applicable. For the avoidance of doubt, it is hereby clarified that this Addendum together with its Exhibits and Annexures (collectively, the “DPA”) specify the obligation of the Parties when Kameleon Solutions is acting in the capacity of Processor, as defined below.

This Addendum is supplemental to, and forms an integral part of the Agreement and becomes effective and binding upon entering into the Service Agreement as applicable, the details of which may be specified in the Agreement, an Order Form or an executed version or its amendment to the Agreement. In case of any conflict or inconsistency with the Service Agreement and the DPA, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency with respect to the subject matter at conflict.

1 DEFINITIONS

Capitalized terms used but not defined in this Addendum shall either have the same meaning as set forth in Article 4 of the GDPR or the Service Agreement as applicable.

“Customer” means the person or entity placing an order for or accessing the Service under the Service Agreement.

“Customer Data” means all data (including but not limited to Customer Personal Data and End User data uploaded to or created on VitoSurveys platform) that VitoSurveys in its capacity as Data Processor processes on behalf of the Data Controller through the provision of its Services.

“Data” or “Personal Data”means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with identified or identifiable natural person or Consumer (as defined in the CCPA) which is processed solely by VitoSurveys, on behalf of the Customer for the purpose of delivering Services.

“Data Controller” or “Controller” or “Data Exporter” means the Customer entity who collects Personal Data and uses the Services of VitoSurveys . either free or under paid subscription model who determines the purposes and means of the Processing of Personal Data;

“Data Processor” or “Processor” or “Data Importer” means Kameleon Solutions who processes Personal Data on behalf of the Data Controller under its Instructions.

“Data Protection Officer” means the designated representative of the Parties who will be the point of contact for any Data Privacy/Security related issues/queries;

“Data Subject” means the individual to whom Personal Data relates.

“Data Protection Laws” or “Regulations” means all data protection laws and regulations applicable to a party’s processing of Customer Data under the Agreement, including, where applicable, the EU Data Protection Directive 95/46/EC, the Privacy and Electronic Communications Directive 2002/58/EC and the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 (all of which are as may be amended from time to time);

“EEA” means, for the purpose of this Addendum, the European Economic Area;

“Instruction” means the written, documented instruction, issued by the Controller to the Processor, requesting Processor to perform a specific action on the Personal Data (including, but not limited to, updating, blocking, deleting, depersonalizing, transferring);

“Personal Data Breach” means a security incident, leading to the accidental or unlawful destruction, loss, alteration, unauthorized divulgence, or access to, Personal Data transmitted, stored or otherwise processed by us and/or our Sub-Processors in connection with the provision of Services under the Terms of Services;

“Processing” shall mean any operation or set of operations which is performed upon Personal Data whether or not by automatic means, including collecting, recording, organising, storing, adapting or altering, retrieving, consulting, using, disclosing, making available, aligning, combining, blocking, erasing and destroying Personal Data as defined in the applicable data privacy laws.

“Restricted Transfer” means: (i) where the EU GDPR applies, a transfer of personal data from the European Economic Area to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; and (ii) where the UK GDPR applies, a transfer of personal data from the United Kingdom to any other country which is not subject based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018.

“Services” means the services agreed to be provided by Data Processor to the Data Controller under the Terms of Service in relation to the proprietary online survey application viz. ‘VitoSurveys’ owned by the Data Processor, including hosting of such application on cloud server, providing access to authorised users of the Customer, trouble shooting related services, consultancy and customer support services on request;

“Standard Contractual Clauses” means in relation to the EEA, the contractual terms approved under the European Commission’s decision of 4 June 2021 on Standard Contractual Clauses (Commission Decision (EU) 2021/914) for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679;

“Sub-processor” or “Sub-data Processor” means the third party service providers engaged by the Data Processor who interact with the Controller’s Data (in part or full) so as to assist the Data Processor in fulfilling its obligations with respect to providing the Services as per the Terms of Service.

“Supervisory Authority” means any competent regulatory authority including data protection authorities and law enforcement agencies.

“UK Addendum” means the International Data Transfer Addendum issued by the UK Information Commissioner under section 119A(1) of the Data Protection Act 2018 found at https://ico.org.uk/media/about-the-ico/consultations/2620398/draft-ico-addendum-to-com-scc-20210805.pdf

2 INTRODUCTION

  • The terms of this Agreement shall apply to the extent Personal Data is provided to Processor or the Processor is exposed to while providing Services.
  • To the extent of Processing of Personal Data pursuant to this Addendum, Kameleon Solutions shall be the Data Processor and customer shall act as the Data Controller.
  • The terms of this Addendum shall apply to the extent such Personal Data is provided to the Processor or the Processor is exposed to, while providing the Services.
  • The Data Controller is responsible for providing the Processor access only to such Personal Data as needed for the performance of the Services and as may subsequently be agreed in writing by the parties, in which case the Data Processor shall act solely under such documented instructions from the Data Controller. And the parties further agree that this Addendum together with Service Agreement, documents incorporated by reference including Order Form constitutes such written instructions of the Controller to process Customer Personal Data (including but not limited to locations outside of the EEA and UK) along with other reasonable written instructions provided from time to time by the Customer (e.g. email communications) where such instructions are consistent with the Addendum;

3 DETAILS OF PROCESSING OF PERSONAL DATA

  • Data Subjects: means the identified or identifiable person to whom the Personal Data relates to and includes Data Controller’s employees, contractors, customers, prospects, suppliers and subcontractors.
  • Personal Data: This includes contact information, the extent of which is determined and controlled by the Customer in its sole discretion, and other Personal Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the Services.
  • Nature of the Processing: The subject-matter of Processing of Personal Data by Data Processor is the provision of the Services to the Data Controller that involves the Processing of Personal Data, as specified in the Terms of Service.
  • Purpose of the Processing: Personal Data will be Processed for purposes of providing the Services set out in the Terms of Service.
  • Duration of the Processing: Personal Data will be Processed for the duration of the provision of Services under the Terms of Service or Service Order as the case may be, including its renewal , subject to Clause 8 of this Addendum.

4. DATA PROCESSOR OBLIGATION

The Data Processor agrees to process the Data only in accordance with relevant data protection laws and in particular on the following conditions:

4. DATA PROCESSOR OBLIGATION

4.1. Data Processing:

The Data Processor shall only process Personal Data in accordance with the Data Protection Legislation and according to Instructions from the Data Controller and solely for the Services promised to the Data Controller, and not for its own, independent purposes. The Data Controller has the right to access, modify, delete and transfer their Personal Data.

Data Processor shall not itself exercise control, nor shall it transfer, or purport to transfer, control of such Personal Data to a third party, except as it may be specifically instructed by the Controller.

The Data Processor shall be obliged to perform appropriate technical and organizational measures in such a way that the data processing meets the requirements of the legislation in force at any time and ensures protection of the rights of the Data Subject(s).

The Data Processor will be responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data and the Processing of Personal Data.

The Data Processor will make available information necessary for the Data Controller to demonstrate compliance with the GDPR (Article 28 obligations) where such information is in the control and possession of the Data Processor and is not otherwise available to the Data Controller through its account or on Data Processor website, provided that the Data Controller provides the Data Processor with at least 14 (fourteen) days’ written notice of such an information request.

The Data Processor is prohibited from selling Personal Data. No Personal Data shall be disclosed/transferred to any third-parties in a manner that would suggest “selling” under applicable law, i.e., CCPA.

4.2. Confidentiality:

The Data Processor shall be obliged to ensure that the persons authorized to process Personal Data have contractually committed to confidentiality obligations or are subject to an appropriate statutory duty of confidentiality.

4.3. Sub-Processor

By entering into this Addendum, the Data Controller authorizes the use of Sub- Processor(s) by the Data Processor for the provision of Services as agreed under the Terms of Service. The Data Processor will make available to the Data Controller, the list of Sub-processors engaged by it for the provision of Services to the Data Controller, together with the description of the nature of services and data center location of each such sub-processorThe current list of Sub-processors is provided in Annexure III. The Data Processor will notify the Data Controller via email in case of new additions to the list, if any. However, the Data Controller can refer to the said Annexure of this DPA from time to time, in case they have opted out of the Processor’s email notification.

Upon such notification by the Data Processor, the Data Controller may, on legitimate grounds, object to the addition or replacement of Sub-processor, by notifying Kameleon Solutions promptly in writing an email to vitosurveys@kameleonsolutions.com within ten (10) Business Days after receipt of the Data Processor’s email notice. The following terms shall apply in the event Data Processor notifies the Data Controller of addition or replacement of Sub-processor:

  1. If the Data Controller objects to such addition or replacement of the Sub-processor on any reasonable grounds, it shall be notified to the Data Processor in writing. The parties shall discuss such concerns in good faith with a view to achieve a commercially reasonable and technically viable resolution. If the Data Processor is unable to consider Controller’s objection and no such resolution can be reached and the same being notified to the Controller, the Controller may as its sole remedy, terminate the subscription for the affected service without penalty by providing, before the end of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.
  2. If the affected service is part of a suite (or similar single purchase of services), then any termination will apply to the entire suite.
  3. No amounts shall be refunded by the Data Processor to the Controller.

Where VitoSurveys engages Sub-Processors as set forth herein, it shall ensure that such sub-processors are contractually bound to provide at least the same level of protection for Personal Data as those contained in this Addendum including, wherever applicable, the Standard Contractual Clauses) to the extent applicable to the nature of services provided by such sub-processors. In any event we shall remain responsible for sub-processors compliance with this DPA and liable for all acts and omissions of such sub-processors that cause VitoSurveys to breach any of its obligations contained in this Addendum.

4.4. Audits

The Data Processor will ensure the availability of a “Data Protection Officer” who will be incharge of the Data security and whom the Data Controller can approach by sending an email to vitosurveys@kameleonsolutions.com in case of any queries relating to their Data.

The Data Controller may, prior to the commencement of Processing, and at regular intervals, audit the technical and organizational measures taken by Kameleon Solutions as a Processor and for such purposes, the Data Controller may:

  1. obtain relevant information from the Processor necessary to demonstrate compliance with this DPA,
  2. request the Processor to submit to the Controller an existing attestation or certificate by an independent professional expert, or
  3. upon fifteen (15) days’ prior written request at reasonable intervals (not more than once in 12 months) , during regular business hours and without interrupting Processor’s business operations, conduct audit including an on-site inspection of Processor’s business operations or have the same conducted by a qualified third party which shall not be a competitor of the Processor directly or indirectly and such third party shall enter into appropriate confidentiality agreements with Processor.

Upon receiving the written request from the Data Controller, the Data Processor will provide with all information necessary for such audit (provided, however, that such information, audits, inspections and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by the Data Controller to assess in compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Processor’s prior written approval), to the extent that such information is within the Processor’s control. Provided, the Controller bears any and all cost involved for conducting the same. And further upon Processor’s first request, the Data Controller shall return all records or documentation in Data Controller’s possession or control provided by Processor in the context of the audit and/or the inspection).

4.5. Request from Data Subjects

To the extent that Data Controller is unable to respond to Data Subject request without the aid and support of the Data Processor, the Processor upon request of the Data Controller in writing will make available , Personal Data of Data Subjects and support the Controller to fulfill requests by Data Subjects to exercise their rights under the GDPR in a manner consistent with the functionality of the software product and VitoSurveys’s role as a Processor. VitoSurveys shall comply with reasonable requests of the Controller and in return Controller agrees to reimburse VitoSurveys for such assistance.

If VitoSurveys receives a request from the Data Subject to exercise its rights under the GDPR, VitoSurveys will redirect such Data Subject to the Controller. The Controller shall be solely responsible for timely response to any such Data Subject Requests or communications involving Personal Data.

4.6. Security

The Processor shall take the appropriate technical and organizational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, as described under Appendix 2 of the Standard Contractual Clauses. Such measures include, but are not be limited to:

  • the prevention of unauthorized persons from gaining access to Personal Data Processing systems (physical access control),
  • the prevention of Personal Data Processing systems from being used without authorization (logical access control),
  • ensuring that persons entitled to use a Personal Data Processing system gain access only to such Personal Data as they are entitled to accessing in accordance with their access rights, and that, in the course of Processing or use and after storage, Personal Data cannot be read, copied, modified or deleted without authorization (data access control),
  • ensuring that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),
  • ensuring the establishment of an audit trail to document whether and by whom Personal Data has been entered into, modified in, or removed from Personal Data Processing systems (entry control),
  • ensuring that Personal Data is Processed solely in accordance with the Instructions (control of instructions),
  • ensuring that Personal Data is protected against accidental destruction or loss (availability control).

Notwithstanding any provision to the contrary, Data Processor may modify or update the Security Measures at its discretion for legitimate reasons; provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.

5. DATA CONTROLLER OBLIGATION

The Data Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. The Data Controller:

  • represents and warrants to comply with the terms of this Addendum, and all applicable data protection laws.
  • represents and warrants that any and all necessary permissions and authorizations have been obtained, necessary to permit Kameleon Solutions, its affiliates and Sub-Processors, to execute their rights or perform their obligations in connection with processing of Personal Data under this Addendum.
  • Agrees to be responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this Addendum.
  • Shall have the sole responsibility for the accuracy, quality, and legality of Personal Data collected and the means by which Controller acquired such Personal Data of its customer.
  • ensures that its Instructions to the Data Processor regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws;
  • Represents and warrants that it has the right to transfer, or provide access to, the Personal Data to the Data Processor for Processing in accordance with the terms of this Addendum and Terms of Service.
  • Agrees to ensure that all affiliates of the Data Controller who use the Services shall comply with the obligations set out in this Addendum.

6. PERSONAL DATA BREACH

The Data Processor will promptly, and without any undue delay, notify the Data Controller within 48 hours after becoming aware of a security incident, so long as applicable law allows this notice. The Data Processor to the extent permitted and required by Data Protection Laws shall provide timely information relating to the security incident involving the Data Controller’s Personal Data.

Neither the Data Controller nor the Data Processor shall be deemed liable to the other Party for any circumstances beyond the control of the Party, which the Party upon entering this Addendum could not have taken into consideration, avoided or overcome.

7. INTERNATIONAL TRANSFER OF DATA

Kameleon Solutions, may transfer Personal Data to the United States and/or to other third countries where Kameleon Solutions, or its Sub-processors operate for purposes of offering the services, the details of which can be obtained as stated in Section 4.3. Kameleon Solutions will follow the requirements of this Addendum regardless of where such Personal Data is stored or processed. Wherever there is a Restricted Transfer of Personal Data, Kameleon Solutions will ensure such transfers are made in compliance with the requirements of Data Protection Laws and in accordance with this Addendum.

VitoSurveys will not transfer Personal Data that is subject to the European data protection law to any country or recipient not recognized as providing an adequate level of protection for Personal Data without taking all such measures as are necessary to ensure the transfer is in compliance with applicable European data protection laws. Such measures include Standard Contractual Clauses, implementation of security, technical and organizational measures as detailed in Appendix 2 to the SCC.

In relation to the processing of Personal Data that is subject to the UK GDPR, the Standard Contractual Clauses will be modified and interpreted in accordance with the UK Addendum which shall be deemed to be incorporated by reference and forms an integral part of this Addendum. For the sake of clarity, Tables 1, 2 and 3 of the UK Addendum will be deemed completed with the information set out in the Annexes of this DPA and Table 4 will be deemed completed by selecting “neither party”; and any conflict between the terms of the Standard Contractual Clauses and the UK Addendum will be resolved in accordance with Section 10 and 11 of the UK Addendum.

8. TERM & TERMINATION OF THIS ADDENDUM

This Addendum shall remain valid, effective and binding on the Parties until the sooner termination or expiration of Services under the terms of Service.

The Addendum will automatically stand terminated with effect due to discontinuance of Services between the two parties, either due to non-renewal or cancellation of Services Agreement.

9. DELETION OR RETURN OF CUSTOMER DATA

Upon termination or expiration of the Agreement, the Data Processor shall, no later than 30 days, at the request of the Data Controller either delete or return the Customer Data (including its copies, if any) that is in its possession or control and Processed under this Addendum as set out in the Privacy Policy except that are required by applicable law to retain either in whole or in part, or otherwise that are archived on back up systems which the Data Processor shall securely isolate, protect from any further processing and eventually delete in accordance with this DPA.

10. MISCELLANEOUS

The term Addendum means and includes this document and the annexes, exhibits referred to herein and all amendments thereto. If any term, condition, section or provision of this Addendum becomes invalid or be so judged, the remaining terms, conditions, sections and provisions shall be deemed severable and shall remain in force. The failure to exercise, or delay in exercising any right, power or remedy vested in this Addendumshall not constitute a waiver by that party of that or any other right, power or remedy. The Data Processor reserves the right, at its sole discretion, to amend the DPA to reflect the technical, organisational and regulatory requirements and any change in the terms contained herein shall be notified to the Data Controller. In the event of any conflict between certain provisions of this DPA and the provisions of Terms of Service, the provisions contained in the DPA shall prevail over such conflicting provisions of the Addendum solely with respect to the Processing of Personal Data. IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Services Agreement with effect from the date first set out above.

Last updated: 5 May, 2024

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