Data Processing Addendum

This Data Processing Addendum ("DPA") is incorporated into and forms a part of the agreement between Brandfolder, Inc. ("Brandfolder") and Customer that governs Customer's access to and use of the online Services ("Agreement"). Capitalized terms not defined herein have the meaning given in the Agreement.

1. Definitions. In this DPA, the following terms (and derivations thereof) have the meanings set out below:

"Affiliate" means any person or entity that owns or controls, is owned or controlled by, or is under common control or ownership with, a party to this Agreement, where "control" is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.

"Controller" means the individual or entity that determines the purposes and means of the Processing of Personal Data.

"Customer" means the individual or entity that has entered into the Agreement and agreed to the incorporation of this DPA into the Agreement.

"Customer Content" means any data, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to an online Service by Customer or Users and is Processed by Brandfolder on behalf of Customer.

"Customer Personal Data" means Personal Data that is contained within Customer Content.

"Data Breach" means a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Content.

"Data Protection Laws" means, to the extent applicable to a Party, the data protection or privacy laws of any country regarding the Processing of Customer Personal Data.

"Data Subject" means an identified or identifiable natural person.

"Parties" or "Party" means Customer and/or Brandfolder as applicable.

"Personal Data" means any information relating to, identifying, describing, or capable of being associated with a Data Subject or a household.

"Process" means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, alignment, combination, restriction, erasure, destruction or disclosure by transmission, dissemination or otherwise making available.

"Processor" means the individual or entity that Processes Personal Data on behalf of a Controller.

"Professional Services" means implementation, configuration, integration, training, advisory, and other professional services related to the online Services that are provided by Brandfolder and purchased by Customer specified in an Order or SOW.

"Services" means the Subscription Services, Professional Services, and any other online service or application provided or controlled by Brandfolder for use with the Subscription Services.

"Brandfolder Personnel" means any individual authorized by Brandfolder to Process Customer Personal Data.

"Subprocessor" means any individual or entity (including any third party but excluding Brandfolder Personnel) appointed by or on behalf of Brandfolder to Process Customer Personal Data in connection with the Agreement.

"Subscription Services" means the subscription-based online work collaboration services and applications that are provided by Brandfolder and purchased by Customer.

"Supervisory Authority" means an independent competent public authority established or recognized under Data Protection Laws.

"User" means any individual authorized or invited by Customer or another User to access and use the online Services under the terms of the Agreement.

2. Roles of Parties.

2.1.

Customer and Brandfolder agree that, as between the Parties, Customer is a Controller and Brandfolder is a Processor of Customer Personal Data and that each Party is solely responsible for its compliance with Data Protection Laws applicable to it and for fulfilling any of its related obligations to third parties, including Data Subjects and Supervisory Authorities.

2.2. Customer as Controller.

2.2.1.

Customer is solely responsible for the accuracy of Customer Personal Data and the legality of the means by which Customer acquires Customer Personal Data.

2.2.2.

Customer's instructions to Brandfolder to Process Customer Personal Data will comply with Data Protection Laws and be duly authorized, with all necessary rights, permissions, and consents secured.

2.3. Brandfolder as Processor.

2.3.1.

Brandfolder will Process Customer Personal Data only: (a) as instructed by Customer in writing or as initiated by authorized Users via an online Service; (b) as necessary to provide the Services and prevent or address technical problems with an online Service or violations of the Agreement or this DPA; or (c) as required by applicable law. Schedule 1 (Details of Processing of Customer Personal Data) sets out a description of Brandfolder's Processing of Customer Personal Data.

2.3.2.

Brandfolder will ensure that Brandfolder Personnel: (a) access Customer Personal Data only to the extent necessary to perform Brandfolder's Processing obligations under this DPA and the Agreement; (b) are bound by confidentiality obligations with respect to Customer Personal Data substantially as protective as those set forth in this DPA and the Agreement; and (c) are subject to appropriate training relating to the Processing of Customer Personal Data.

2.3.3.

Brandfolder will not disclose Customer Personal Data to a third party for monetary or other consideration except as otherwise permitted under this DPA or the Agreement.

2.3.4.

At Customer's written request and to the extent Customer is unable to access the relevant information on its own, Brandfolder will provide reasonable assistance to Customer in relation to data protection impact assessments and consultations with Supervisory Authorities, taking into account the nature of Brandfolder's Processing of Customer Personal Data and the information available to Brandfolder.

2.3.5.

Brandfolder will not assess the type or substance of Customer Content to identify whether it is Customer Personal Data or subject to any specific legal requirements.

3. Security.

3.1.

Brandfolder will implement and maintain technical, physical, and organizational measures and controls designed to protect and secure Customer Content (including the return and deletion thereof) in accordance with the Agreement.

3.2.

Customer acknowledges that, through its Users, Customer: (a) controls the type and substance of Customer Content; (b) sets User permissions to access Customer Content; and therefore, Customer is responsible for reviewing and evaluating whether the documented functionality of an online Service meets Customer's required security obligations relating to Customer Personal Data under Data Protection Laws.

3.3.

Customer acknowledges that Brandfolder security measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Brandfolder's obligations as compared to those reflected in such terms as of the Effective Date). Customer is solely responsible for independently assessing and implementing available security configuration settings it deems necessary to meet Customer's requirements and legal obligations under Applicable Data Protection Laws.

4. Subprocessors.

4.1.

Subprocessors will be identified at www.brandfolder.com/legal/subprocessors and may be updated by Brandfolder from time to time in accordance with this Addendum. Customer authorizes Brandfolder Affiliates to ast as Subprocessors and to use any identified Subprocessors subject to the terms and conditions of this Section 4.

4.2.

Brandfolder will carry out appropriate due diligence on each Subprocessor and have a written agreement with each Subprocessor that includes provisions for Processing Customer Personal Data that are substantially as protective as those set out in this DPA.

4.3.

Brandfolder is responsible for Subprocessors' acts and omissions, including a Subprocessor's appointment of another Subprocessor.

4.4. New Subprocessors; Right to Object.

4.4.1.

Customer must fill out the form available at www.brandfolder.com/legal/subprocessor-notification to receive notifications of new Subprocessor appointments by Brandfolder. Following submission of such form, Brandfolder will provide prior written notice to Customer if Brandfolder intends to appoint new Subprocessors; provided, however, that Brandfolder will notify Customer in writing without undue delay after the appointment of a new Subprocessor if direct involvement of such Subprocessor is necessary for maintaining the availability and security of the online Services or Customer Content.

4.4.2.

If Customer objects to a new Subprocessor on a reasonable basis related to the Processing of Customer Personal Data, Customer must notify Brandfolder in writing within fifteen (15) days after receiving an appointment notice; otherwise, Brandfolder will deem the appointment of the new Subprocessor authorized by Customer. Upon receipt of an objection notice from Customer, Brandfolder will use reasonable efforts to make available to Customer a change in the online Services or recommend a commercially reasonable configuration or use of the online Services to avoid the Processing of Customer Personal Data by the new Subprocessor. If Brandfolder cannot address Customer's objection pursuant to the foregoing efforts, Brandfolder will notify Customer within fifteen (15) days of receipt of Customer's objection notice. Customer may then, by written notice to Brandfolder within thirty (30) days of Brandfolder's notice, terminate this DPA and any affected Services and receive a refund of prepaid fees covering the terminated portion of the applicable Service.

5. Data Subject Requests.

5.1.

Brandfolder will provide Customer access to Customer Personal Data via the online Services to allow Customer to respond to Data Subject requests relating to Customer Personal Data.

5.2.

Brandfolder will notify Customer in writing without undue delay of any requests Brandfolder receives directly from a Data Subject relating to Customer Personal Data, and Brandfolder may respond directly to a Data Subject request: (a) to confirm that such request relates to Customer; (b) as required by applicable law; or (c) with the written consent of Customer.

5.3.

At Customer's written request and to the extent Customer is unable to access Customer Personal Data on its own, Brandfolder will provide reasonable assistance to Customer in accessing Customer Personal Data for Customer to respond to such Data Subject requests. To the extent legally permitted, Customer will be responsible for any expenses attributable to Brandfolder's assistance efforts outside the normal course of business.

6. Data Breach.

6.1.

Brandfolder will notify Customer in writing without undue delay upon Brandfolder becoming aware of a Data Breach.

6.2.

Brandfolder will investigate and, as necessary, mitigate or remediate a Data Breach in accordance with Brandfolder's security incident policies and procedures ("Breach Management").

6.3.

Subject to Brandfolder's legal obligations, Brandfolder will provide Customer with information available to Brandfolder as a result of its Breach Management, including the nature of the incident, specific information disclosed (if known), and any relevant mitigation efforts or remediation measures ("Breach Information"), for Customer to comply with its obligations under Data Protection Laws as a result of a Data Breach.

6.4.

If Customer requires information relating to a Data Breach in addition to the Breach Information, at Customer's sole expense and written request and to the extent Customer is unable to access the additional information on its own, Brandfolder will reasonably cooperate with Customer as requested by Customer to attempt to collect and provide such additional information.

7. Audit Rights.

7.1.

Brandfolder will use external auditors to annually audit and verify the adequacy of its security measures and controls ("Audit"). The Audit will: (a) be performed by independent third party security professionals at Brandfolder's selection and expense; (b) include testing of the security measures and controls of the online Services, performed according to AICPA SOC2 standards or such other alternative standards substantially equal to AICPA SOC2, that results in the generation of, at a minimum, a SOC2 report or the substantive equivalent; and (c) include penetration testing of the online Services and result in the generation of a penetration test report. The reports generated by the Audit ("Reports") will be made available to Customer upon written request no more than annually subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement. For clarity, each Report will only discuss the online Services in general commercial availability at the time the Report was issued; subsequently released Services, if covered by a Report, will be in the next annual iteration of such Report.

7.2.

If Customer requires information for its compliance with Data Protection Laws in addition to the Reports, at Customer's sole expense and written request and to the extent Customer is unable to access the additional information on its own, Brandfolder will allow for and cooperate with a Customer mandated audit by a third party auditor in relation to the Brandfolder's Processing of Customer Personal Data ("Customer Audit"), provided that:

7.2.1.

Customer provides Brandfolder reasonable advance notice including the identity of the auditor and the anticipated date and scope of the Customer Audit;

7.2.2.

Brandfolder approves the auditor by notice to Customer, with such approval not to be unreasonably withheld;

7.2.3.

Customer and the auditor act to avoid causing any damage, injury, or disruption to Brandfolder's premises, equipment, or business in the course of such Customer Audit; and

7.2.4.

Customer initiates only one Customer Audit in any calendar year unless otherwise required by a Supervisory Authority.

8. International Provisions.

8.1.

The Parties acknowledge and agree that the Processing of Customer Personal Data by Brandfolder may involve an international transfer of Customer Personal Data from Customer to Brandfolder ("International Transfer"). Customer acknowledges that, as of the Effective Date, Brandfolder's primary processing activities are in the United States.

8.2.

To the extent that Brandfolder Processes Customer Personal Data originating from and protected by Applicable Data Protection Laws in one of the Jurisdictions listed in Schedule 4 (Jurisdiction Specific Terms), then the terms specified therein with respect to the applicable jurisdiction(s) will apply in addition to the terms of this Addendum.

8.3.

To the extent that Customer's use of the Services requires a valid transfer mechanism to lawfully transfer Customer Personal Data from a jurisdiction (i.e., the European Economic Area ("EEA"), the UK, Switzerland or any other jurisdiction listed in Schedule 4) to Brandfolder located outside of that jurisdiction (a "Transfer Mechanism"), the terms and conditions of Schedule 3 (Cross Border Transfer Mechanisms) will apply.

8.4.

If any Transfer Mechanism fails as a lawful data transfer mechanism for an International Transfer, the Parties will act in accordance with Section 9.8 (Variations in Data Protection Laws) of this DPA.

9. General.

9.1.

Amendment; Waiver. Unless otherwise expressly stated herein, this DPA may be modified only by a written agreement executed by an authorized representative of each Party. The waiver of any breach of this DPA will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.

9.2.

Severance. If any provision of this DPA is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this DPA is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this DPA, the entire DPA will be considered null and void.

9.3.

Order of Precedence. Regarding the subject matter of this DPA, in the event of any conflict between this DPA and any other written agreement between the Parties (including the Agreement), this DPA will govern and control. Any data processing agreements that may already exist between Parties are superseded and replaced by this DPA in their entirety.

9.4.

Notices. Unless otherwise expressly stated herein, the parties will provide notices under this DPA in accordance with the Agreement, provided that all such notices may be sent via email.

9.5.

Governing Law and Jurisdiction. Unless prohibited by Data Protection Laws, this DPA is governed by the laws stipulated in the Agreement and the Parties to this DPA hereby submit to the choice of jurisdiction and venue stipulated in the Agreement, if any, with respect to any dispute arising under this DPA.

9.6.

Enforcement. Regardless of whether Customer or its affiliate(s) or a third-party is a Controller of Customer Personal Data, unless otherwise required by law: (a) only Customer will have any right to enforce any of the terms of this DPA against Brandfolder; and (b) Brandfolder's obligations under this DPA, including any applicable notifications, will be to only Customer.

9.7.

Liability. As between the Parties to this DPA, each Party's liability and remedies under this DPA are subject to the aggregate liability limitations and damages exclusions set forth in the Agreement.

9.8.

Variations in Data Protection Laws. If any variation is required to this DPA as a result of a change in or subsequently applicable Data Protection Law, then either Party may provide written notice to the other Party of that change in law. The Parties will then discuss and negotiate in good faith any variations to this DPA necessary to address such changes, with a view to agreeing and implementing those or alternative variations as soon as practicable, provided that such variations are reasonable with regard to the functionality and performance of the Services and Brandfolder's business operations.

9.9.

Reservation of Rights. Notwithstanding anything to the contrary in this DPA: (a) Brandfolder reserves the right to withhold information the disclosure of which would pose a security risk to Brandfolder or its customers or is prohibited by applicable law or contractual obligation; and (b) Brandfolder's notifications, responses, or provision of information or cooperation under this DPA are not an acknowledgement by Brandfolder of any fault or liability.

SCHEDULE 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

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

Subject matter and duration of the Processing of Personal Data:

The subject matter and duration of the Processing of Personal Data are set out in the Agreement and this DPA.

The nature and purpose of the Processing of Personal Data

Processing of Personal Data by Brandfolder is reasonably required to facilitate or support the provision of the Services as described under the Agreement and this DPA.

Type of Personal Data and Categories of Data Subjects:

The types of Personal Data and categories of Data Subject about whom the Personal Data relates are determined and controlled by Customer in its sole discretion.

Obligations and Rights of the Controller:

The obligations and rights of Customer are set out in the Agreement and this DPA.

SCHEDULE 2: TECHNICAL & ORGANIZATIONAL SECURITY MEASURES

Where applicable, this Schedule 2 will serve as Annex II to the Standard Contractual Clauses.

SECURITY PRACTICES

Capitalized terms used but not defined in this Schedule 2 have the meanings ascribed to them in the Agreement.

1. Security Protocols.

1.1.

Information Security Program. Brandfolder shall maintain a comprehensive written information security program, including policies, standards, procedures, and related documents that establish criteria, means, methods, and measures governing the processing and security of Customer Content and the Brandfolder systems or networks used to process or secure Customer Content in connection with providing the Services ("Brandfolder Information Systems"). Subcontractors engaged by Brandfolder in accordance with the Agreement will maintain (at a minimum) substantially similar levels of security as applicable and required by these Security Practices.

1.2.

Security Controls. In accordance with its information security program, Brandfolder shall implement appropriate physical, organizational, and technical controls designed to: (a) ensure the security, integrity, and confidentiality of Customer Content accessed, collected, used, stored, or transmitted to or by Brandfolder; and (b) protect Customer Content from known or reasonably anticipated threats or hazards to its security, integrity, accidental loss, alteration, disclosure, and other unlawful forms of processing. Without limiting the foregoing, Brandfolder will, as appropriate, utilize the following controls:

1.2.1.

Firewalls. Brandfolder will install and maintain firewall(s) to protect data accessible via the Internet.

1.2.2.

Updates. Brandfolder will maintain programs and routines to keep the Brandfolder Information Systems up to date with the latest upgrades, updates, bug fixes, new versions, and other modifications.

1.2.3.

Anti-malware. Brandfolder will deploy and use anti-malware software and will keep the anti-malware software up to date. Brandfolder will use such software to mitigate threats from all viruses, spyware, and other malicious code that are or should reasonably be detected.

1.2.4.

Testing. Brandfolder will regularly test its security systems, processes, and controls to ensure they meet the requirements of these Security Practices.

1.2.5.

Access Controls. Brandfolder will secure data in production Brandfolder Information Systems by complying with the following:

Brandfolder will assign a unique ID to each individual with access to systems processing Customer Content.
Brandfolder will restrict access to systems with Customer Content to only those individuals necessary to perform a specified obligation as permitted by this Agreement.
Brandfolder will regularly review (at a minimum once every ninety (90) days) the list of individuals and services with access to systems processing Customer Content and remove accounts that no longer require access.
Brandfolder will not use manufacturer supplied defaults for system passwords on any operating systems, software, or other systems, and will mandate the use of system-enforced "strong passwords" in accordance with or exceeding the best practices (described below) on all systems processing Customer Content, and will require that all passwords and access credentials be kept confidential and not shared among Brandfolder personnel.
At a minimum, Brandfolder production passwords will: (i) contain at least eight (8) characters; (ii) not match previous passwords, the user's login, or common name; (iii) be changed whenever an account compromise is suspected or assumed; and (iv) be regularly replaced.
Brandfolder will enforce account lockout by disabling accounts with access to Customer Content when an account exceeds a designated number of incorrect password attempts in a certain period.
Brandfolder will maintain log data for all use of accounts or credentials by Brandfolder personnel for access to systems processing Customer Content and will regularly review access logs for signs of malicious behavior or unauthorized access.

1.2.6.

Policies. Brandfolder will maintain and enforce appropriate information security, confidentiality, and acceptable use policies for employees, subcontractors, agents, and suppliers that meet the standards set forth in these Security Practices, including methods to detect and log policy violations.

1.2.7.

Development. Development and testing environments for Brandfolder Information Systems will be separate from production environments.

1.2.8.

Deletion. Brandfolder will utilize procedures that are at a minimum in accordance with National Institute of Standards and Technology (NIST) SP 800-88 Revision 1 recommendations (or a successor standard widely used in the industry) to render Customer Content unrecoverable prior to disposal of media.

1.2.9.

Encryption. Brandfolder will utilize cryptographic standards mandating authorized algorithms, key length requirements, and key management processes that are consistent with or exceed then-current industry standards, including NIST recommendations, and utilize hardening and configuration requirements consistent in approach with then-current industry standards, including SANS Institute, NIST, or Center for Internet Security (CIS) recommendations. Pursuant to such standards, Brandfolder will encrypt Customer Content at rest within the online Services and will only allow encrypted connections to the online Service for the transfer of Customer Content.

1.2.10.

Remote Access. Brandfolder will ensure that any access from outside of its protected corporate or production environments to systems processing Customer Content or to Brandfolder's corporate or development workstation networks will require appropriate connection controls, such as VPN or multi-factor authentication.

2. System Availability. Brandfolder will maintain (or, with respect to systems controlled by its subcontractors, ensure that such subcontractors maintain) a disaster recovery ("DR") program designed to recover the Subscription Service's availability following a disaster. At a minimum, such DR program will include the following elements: (a) routine validation of procedures to regularly and programmatically create retention copies of Customer Content for the purpose of recovering lost or corrupted data; (b) inventories, updated at minimum annually, that list all critical Brandfolder Information Systems; (c) annual review and update of the DR program; and (d) annual testing of the DR program designed to validate the DR procedures and recoverability of the service detailed therein.

3. Security Incidents.

3.1.

Procedure. If Brandfolder becomes aware of confirmed unauthorized or unlawful access to any Customer Content processed by Brandfolder Information Systems (a "Security Incident"), Brandfolder will promptly: (a) notify Customer of the Security Incident; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.

3.2.

Unsuccessful Attempts. An unsuccessful attack or intrusion is not a Security Incident subject to this Section 3. An "unsuccessful attack or intrusion" is one that does not result in unauthorized or unlawful access to Customer Content and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or TCP/UDP headers), or similar incidents.

3.3.

User Involvement. Unauthorized or unlawful access to Customer Content that results from the compromise of a User's login credentials or from the intentional or inadvertent disclosure of Customer Content by a User is not a Security Incident.

3.4.

Notifications. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer's SysAdmin users by any reasonable means Brandfolder selects, including email. Customer is solely responsible for maintaining accurate contact information in the online Service at all times.

3.5.

Disclaimer. Brandfolder's obligation to report or respond to a Security Incident under this Section 3 is not an acknowledgement by Brandfolder of any fault or liability of Brandfolder with respect to the Security Incident.

4. Auditing and Reporting.

4.1.

Monitoring. Brandfolder monitors the effectiveness of its information security program on an ongoing basis by conducting various audits, risk assessments, and other monitoring activities to ensure the effectiveness of its security measures and controls.

4.2.

Audit Reports. Brandfolder uses external auditors to verify the adequacy of its security measures and controls for certain Services, including the Subscription Services. The resulting audit will: (a) include testing of the entire measurement period since the previous measurement period ended; (b) be performed according to AICPA SOC2 standards or such other alternative standards that are substantially equivalent to AICPA SOC2; (c) be performed by independent third party security professionals at Brandfolder's selection and expense; and (d) result in the generation of a SOC2 report ("Audit Report"), which will be Brandfolder's Confidential Information. The Audit Report will be made available to Customer upon written request no more than annually, subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement. For the avoidance of doubt, each Audit Report will only discuss Services in existence at the time the Audit Report was issued; subsequently released Services, if within the scope of the Audit Report, will be in the next annual iteration of the Audit Report.

4.3.

Penetration Testing. Brandfolder uses external security experts to conduct penetration testing of certain online Services, including the Subscription Services. Such testing will: (a) be performed at least annually; (b) be performed by independent third party security professionals at Brandfolder's selection and expense; and (c) result in the generation of a penetration test report ("Pen Test Report"), which will be Brandfolder's Confidential Information. Pen Test Reports will be made available to Customer upon written request no more than annually subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement.

SCHEDULE 3: CROSS BORDER TRANSFER MECHANISMS

1. Definitions.

1.1.

"Standard Contractual Clauses" means, depending on the circumstances unique to any particular Customer, any of the following:

1.1.1.

UK Standard Contractual Clauses; and

1.1.2.

EEA Standard Contractual Clauses.

1.2.

"UK Standard Contractual Clauses" means:

1.2.1.

Standard Contractual Clauses for data controller to data processor transfers approved by the European Commission in decision 2010/87/EU ("UK Controller to Processor SCCs"); and

1.2.2.

Standard Contractual Clauses for data controller to data controller transfers approved by the European Commission in decision 2004/915/EC ("UK Controller to Controller SCCs").

1.3.

"EEA Standard Contractual Clauses" means the Standard Contractual Clauses approved by the European Commission in decision 2021/914.

2. UK Standard Contractual Clauses. For data transfers from the United Kingdom that are subject to the UK Standard Contractual Clauses, the UK Standard Contractual Clauses will be deemed entered into (and incorporated into this Addendum by reference) and completed as follows:

2.1.

The UK Controller to Processor SCCs will apply where Brandfolder is processing Customer Personal Data. The illustrative indemnification clause will not apply. Schedule 1 serves as Appendix 1 of the UK Controller to Processor SCCs. Schedule 2 serves as Appendix 2 of the UK Controller to Processor SCCs.

2.2.

The UK Controller to Controller SCCs will apply where Brandfolder is processing online Services usage data. In Clause II(h), Brandfolder will process personal data in accordance with the data processing principles set forth in Annex A of the UK Controller to Controller SCCs. The illustrative commercial clause will not apply. Schedule 1 serves as Annex B of the UK Controller to Controller SCCs. Personal Data transferred under these clauses may only be disclosed to the following categories of recipients: i) Brandfolder's employees, agents, affiliates, advisors and independent contractors with a reasonable business purpose for needing such personal data; ii) Brandfolder vendors that, in their performance of their obligations to Brandfolder, must process such personal data acting on behalf of and according to instructions from Brandfolder; and iii) any person (natural or legal) or organization to whom Brandfolder may be required by applicable law or regulation to disclose personal data, including law enforcement authorities, central and local government.

3. The EEA Standard Contractual Clauses. For data transfers from the European Economic Area that are subject to the EEA Standard Contractual Clauses, the EEA Standard Contractual Clauses will apply in the following manner:

3.1.

Module One (Controller to Controller) will apply where Brandfolder is processing online Services usage data as a Controller.

3.2.

Module Two (Controller to Processor) will apply where Customer is a Controller of Customer Personal Data and Brandfolder is a Processor of Customer Personal Data;

3.3.

For each module, where applicable:

3.3.1.

in Clause 7, the optional docking clause will not apply;

3.3.2.

in Clause 9, Option 2 will apply, and the process for providing notice and the time period for objections of sub-processor changes will be as set forth in Section 4 (Subprocessors) of this Addendum;

3.3.3.

in Clause 11, the optional language will not apply;

3.3.4.

in Clause 17, the EEA Standard Contractual Clauses will be governed by the laws of Germany.

3.3.5.

in Clause 18(b), disputes will be resolved before the courts of Germany.

3.3.6.

In Annex I, Part A:

Data Exporter: Customer and authorized affiliates of Customer.

Contact Details: Customer's account owner email address, or to the email address(es) for which Customer elects to receive privacy communications.

Data Exporter Role: The Data Exporter’s role is outlined in Section 2 of this Addendum.

Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.

Data Importer: Brandfolder, Inc.

Contact Details: Brandfolder Privacy - privacy@Brandfolder.com

Data Importer Role: The Data Importer’s role is outlined in Section 2 of this Addendum.

Signature & Date: By entering into the DPA, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date.

3.3.7.

In Annex I, Part B:

The categories of data subjects are described in Schedule 1.

The sensitive data transferred is described in Schedule 1.

The frequency of the transfer is a continuous basis for the duration of the Agreement.

The nature of the processing is described in Schedule 1.

The purpose of the processing is described in Schedule 1.

The period of the processing is described in Schedule 1.

For transfers to sub-processors, the subject matter, nature, and duration of the processing is outlined at www.brandfolder.com/legal/subprocessors.

3.3.8.

In Annex I, Part C: in accordance with clause 13, the competent supervisory authority is identified as follows:

Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as the competent supervisory authority.

Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: Commission nationale de l'informatique et des libertés (CNIL) - 3 Place de Fontenoy, 75007 Paris, France shall act as the competent supervisory authority.

Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner's Office shall act as the competent supervisory authority.

Where the data exporter is established in Switzerland or falls within the territorial scope of application of Swiss Data Protection Laws and Regulations, the Swiss Federal Data Protection and Information Commissioner shall act as competent supervisory authority insofar as the relevant data transfer is governed by Swiss Data Protection Laws and Regulations.

3.3.9.

Schedule 2 serves as Annex II of the Standard Contractual Clauses.

4.To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this Addendum, including Schedule 4 (Jurisdiction Specific Terms), the provisions of the Standard Contractual Clauses will prevail.

SCHEDULE 4: JURISDICTION SPECIFIC TERMS

1. California.

1.1.

The definition of "Applicable Data Protection Law" includes the California Consumer Privacy Act (CCPA).

1.2.

The terms "business", "commercial purpose", "service provider", "sell" and "personal information" have the meanings given in the CCPA.

1.3.

With respect to Customer Personal Data, Brandfolder is a service provider under the CCPA.

1.4.

Brandfolder will not (a) sell Customer Personal Data; (b) retain, use, or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Brandfolder and Customer.

1.5.

The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 6 of this Addendum is integral to and encompassed by Brandfolder’s provision of the Services and the direct business relationship between the parties.

1.6.

Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that Brandfolder's access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.

1.7.

To the extent that any online Services usage data is considered Customer Personal Data, Brandfolder is the business with respect to such data and will Process such data in accordance with its Privacy Notice.

2. EEA.

2.1.

The definition of "Applicable Data Protection Law" includes the General Data Protection Regulation (EU 2016/679) ("GDPR").

2.2.

When Brandfolder engages a Subprocessor, it will:

2.2.1.

require any appointed Subprocessor to protect Customer Personal Data to the standard required by Applicable Data Protection Laws, such as including the same data protection obligations referred to in Article 28(3) of the GDPR, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR; and

2.2.2.

require any appointed Subprocessor to agree in writing to only process data in a country that the European Union has declared to have an "adequate" level of protection; or to only process data on terms equivalent to the Standard Contractual Clauses.

2.3.

GDPR Penalties. Notwithstanding anything to the contrary in this Addendum or in the Agreement (including, without limitation, either party's indemnification obligations), neither party will be responsible for any GDPR fines issued or levied under Article 83 of the GDPR against the other party by a regulatory authority or governmental body in connection with such other party’s violation of the GDPR.

3. Switzerland.

3.1.

The definition of "Applicable Data Protection Law" includes the Swiss Federal Act on Data Protection.

3.2.

When Brandfolder engages a Subprocessor, it will

3.2.1.

3.2.2.

4. United Kingdom.

4.1.

References in this Addendum to GDPR will to that extent be deemed to be references to the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018).

4.2.

When Brandfolder engages a Subprocessor, it will

4.2.1.

4.2.2.

Last Updated: November 04, 2021