Simplecast Data Processing Addendum

Except where otherwise negotiated in writing, this Data Processing Addendum (“DPA”) forms part of the Master Terms of Service found at simplecast.com/terms-conditions or other written agreement between Simplecast and Customer for the use of Simplecast’s online services to the extent that they involve the Processing of Customer Data, including Personal Data (each such agreement referred to herein as the “Agreement”).

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement to govern processing by Simplecast of any Customer Data that is subject to the Data Protection Laws, as defined herein. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended by, and including, this Addendum. All capitalized terms have the same meaning as set forth in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. In the event of a conflict between this DPA and the Agreement, the terms of this DPA shall control.

1. DEFINITIONS

1. “Simplecast” means Audios Ventures, Inc. dba Simplecast or Simplecast.com, a Delaware corporation with its principal place of business located at 24 4th Street, Suite 1007, Troy, NY 12180.
2. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Simplecast, 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.
3. “Customer” means the legal entity or individual who entered into the Agreement with Simplecast.
4. “Customer Data” means all Personal Data processed by Simplecast or its Sub-processors pursuant to or in connection with the Agreement.
5. “Data Protection Laws” means any data protection law applicable to the processing i.e. Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (as amended, replaced or superseded) (“GDPR”).
6. “Data Security Documentation” means Simplecast’s data security policies and procedures, as currently existing and as amended or implemented hereafter, which Simplecast makes available to its Customers.
7. “Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or blocking, erasure, or destruction.
8. “Service” means Simplecast’s service as offered through its website at www.simplecast.com.
9. “Standard Contractual Clauses” means the European Commission’s Standard Contractual Clauses attached hereto as Attachment 1.
10. “Sub-processor” means any person who has entered into an agreement with Simplecast, including third parties, such as Simplecast’s Affiliates for the purpose of carrying out processing activities on behalf of the Controller and on which is imposed the same data protection obligations as set out in this DPA.
11. The terms, “Commission,” “Controller,” “Data Subject,” “Member State,” “Personal Data,” “Personal Data Breach,” “Processor,” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their associated terms shall be construed accordingly.

2. SCOPE OF APPLICATION AND RESPONSIBILITIES

1. Data Controller and Processor Roles. The parties agree that Customer is the Data Controller and Simplecast is the Data Processor.
2. Processing of Personal Data by Customer. It is up to the Customer’s sole discretion to decide what Personal Data is transferred as part of the Service provided by Simplecast and Simplecast has no influence whatsoever over the selection of such Personal Data. The categories of Personal Data which can be processed are listed Attachment 2.
3. Simplecast shall inform the Customer if it becomes aware or reasonably believes that Customer’s Processing instructions violate any applicable Data Protection Law and notably the GDPR.
4. Customer shall acquire and, through its use of the Service, Process Personal Data in accordance with the Data Protection Laws, including, but not limited to, providing Data Subjects with adequate privacy notice, obtaining and maintaining required consents, notification to Data Subjects that Personal Data will be made available to a third party (i.e., Simplecast and its Sub-processors).
5. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and legality of Personal Data, including the methods and consents Customer uses to acquire Personal Data.
6. Processing of Personal Data by Simplecast. Simplecast shall only Process Personal Data in accordance with the instructions provided to it by Customer, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by a mandatory rule resulting from the applicable Data Protection Laws. In such a case, Simplecast shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of a legal obligation.
7. At all times Simplecast shall process Personal Data as Confidential Information.
8. Customer authorizes Simplecast to Process Personal Data in the following ways: (1) in accordance with the Agreement, including, but not limited to, Attachment 2, (2) in accordance with processes initiated by Customer and Customer’s users through the use of the Service, and (3) in accordance with prior instructions provided by Customer, . The parties agree that an instruction shall be deemed to be given where Simplecast acts within the framework of the Agreement or this DPA.
9. Simplecast shall not take any unilateral decisions about the Processing or use of the Personal Data or the duration that the Personal Data will be stored, except pursuant to statutory provisions that prescribe otherwise. Customer is responsible for determining and complying with data storage duration limitations.
10. Simplecast undertakes to notify Customer, without undue delay, of any modification or change which may affect the Processing of Personal Data.
11. Ownership of Data. The ownership and control of Personal Data remains with Customer, and Customer will at all times remain the Data Controller. Customer is responsible for compliance with its obligations as Data Controller under the Data Protection Laws, in particular for justification of any transmission of Personal Data to Simplecast (including providing any required notices and obtaining any required consents), and for its decisions concerning the Processing and use of the Personal Data.
12. Anonymized Data. Simplecast may process Personal Data for the purpose of anonymizing or de-identifying it so that such data is no longer able to be associated with a unique individual. Such data anonymized in accordance with applicable law is not Personal Data and is not governed by this DPA.
13. Attachment 2 to this DPA sets out certain information regarding Simplecast’s Processing of Customer Personal Data as required by Article 28(3) of the GDPR. Simplecast may make reasonable amendments to Attachment 2 by written notice to Customer from time to time as Simplecast reasonably considers necessary to meet those requirements.

3. RIGHTS OF DATA SUBJECTS

1. Data Subject Requests. Where Simplecast receives a Data Subject’s request related to his or her rights to access, correct, or delete data, to object or restrict the processing of data, or to data portability, Simplecast shall not directly respond to any requests of Data Subjects and shall refer such Data Subject request to Customer and inform the Data Subject thereof. Simplecast shall use efforts to support Customer in taking the requested actions. The foregoing shall apply only where Customer has so instructed Simplecast in writing, and where Customer reimburses Simplecast for the cost and expenses incurred in providing such support (such reimbursement as set forth in Section 8.c). Simplecast shall only be held to a mere obligation of means and Customer shall remain at all times responsible for fulfilling Customer’s obligation to respond to Data Subjects’ request. However, Simplecast shall transfer, with no additional costs and without undue delay, any request it may be receive from a Data Subject.

4. SIMPLECAST PERSONNEL

1. Confidentiality. Simplecast shall take reasonable steps designed to ensure that its personnel engaged in Processing Personal Data do so under written confidentiality agreements, have received the appropriate training to handle Personal Data, and are informed of the confidential nature of Personal Data.
2. Limitation on Access. Simplecast shall take reasonable steps designed to ensure that Simplecast’s access to Personal Data is limited to those people who meet the requirements under Section 4(a).
3. Data Privacy Officer. Simplecast has appointed a Data Privacy Officer who may be reached at help@simplecast.com.

5. SUB-PROCESSORS

1. Appointment of Sub-Processors. Customer grants a general authorization to Simplecast and its Affiliates to engage or replace Sub-processors to perform parts of the Service, provided that the conditions specified below are respected.
2. Sub-Processor’s agreement. Prior to receiving any Personal Data of Customer, Sub-processors will be under written agreements that are substantially similar in scope, where applicable, to this DPA and the Standard Contractual Clauses. Simplecast and its Affiliates shall ensure that each Sub-processor performs the obligations under Sections 2 (compliance with applicable laws), 6 (security measures), 3 (data subject rights), 6.b (data breach), 9 (data protection impact assessment), and 8.c (audit rights), as they apply to Processing of Customer Personal Data carried out by that Sub-processor, as if it were party to this Addendum in place of Simplecast. Where Simplecast’s Sub-processors fail to fulfil their data protection obligations, Simplecast will remain fully responsible and liable for the performance of its obligations and of those Sub-processors’ obligations pursuant to this DPA.
3. List of Current Sub-Processors. Simplecast and each Simplecast Affiliate may continue to use those Sub-processors already engaged by Simplecast or any Simplecast Affiliate as of the date of this Addendum, subject to Simplecast and each Simplecast Affiliate in each case as soon as practicable meeting the obligations set out in section 5.b.
4. Notice and Objection Right to New Sub-Processors. Simplecast will provide Customer with notice of any new Sub-processor, at simplecast.com/subprocessors. If Customer objects in writing within ten (10) days of receipt of such notice to a particular Sub-processor Processing Personal Data (with specific details of Customer’s reasons for objection), and that objection is not unreasonable in Simplecast’s reasonable determination, Simplecast will use commercially reasonable efforts to provide an alternative method for provision of the Service to Customer, without Processing Personal Data using the new Sub-processor. If no objection is received within such ten (10) day period, such Sub-Processor shall be deemed approved. For example, Simplecast may allow Customer to ‘turn off’ or ‘opt-out’ of certain features provided by a Sub-Processor. If Simplecast is unable to make reasonable changes to the Service within 60 days of Customer’s written objection, Customer may terminate the Service.
5. Customer’s Processors. Simplecast’s Service includes the possibility for Customers to integrate their own APIs or those of third parties. Simplecast is not responsible for the compliance of the Processing carried out by such APIs with the applicable Data Protection Laws. Customer shall remain at all times be responsible for the compliance of the Processing carried out by its own APIs or those of third parties Customer has agreed to integrate in Simplecast’s Service.

6. SECURITY

1. Protection of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Simplecast shall, in relation to protection of Customer Personal Data, maintain a Data Security Policy, which incorporates technical, administrative, and physical security measures designed to ensure the safety and integrity of Personal Data, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. Customers may request a copy of Simplecast’s Data Security Policy, which Simplecast will provide under a confidentiality agreement. Simplecast may revise, but, not materially diminish the standards set out in the Data Security Policy during the Agreement.
2. Personal Data Breach.
   1. Simplecast shall notify Customer, without undue delay, upon Simplecast or any Simplecast Sub-processor becoming aware of and verifying the occurrence of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
   2. Simplecast shall co-operate with Customer and assist in the investigation, mitigation and remediation of each such Personal Data Breach.

7. RETURN AND DELETION OF CUSTOMER DATA

1. Simplecast shall return Customer Personal Data to Customer and delete Customer Personal Data in accordance with applicable law, provided that Simplecast may retain Customer Personal Data to the extent required by applicable law and always provided that Simplecast shall ensure the confidentiality of all such Customer Personal Data.

8. ADDITIONAL TERMS FOR EU PERSONAL DATA

1. Application of Standard Contractual Clauses.
   1. The Standard Contractual Clauses provided in Attachment 1 shall apply only to Processing of Personal Data as defined under the GDPR that is directly or indirectly transferred from the European Economic Area (“EEA”), to any recipient in a country that is: (i) not recognized by the European Commission as providing an adequate level of protection to personal data, and (ii) not covered by a suitable framework for the protection of Personal Data.
   2. Further, the Standard Contractual Clauses apply only to (i) Simplecast Customers who have executed the Standard Contractual Clauses as a Data Exporter and, (ii) any Affiliates of Customer subject to the GDPR who have purchased the Service through Customer.In accordance with the Standard Contractual Clauses, a Customer transferring Personal Data to Simplecast will be considered a “Data Exporter”, and Simplecast will be considered a “Data Importer” (both terms as defined in the Standard Contractual Clauses).
2. Instructions. Customer hereby instructs Simplecast to Process Personal Data in accordance with the applicable purchased Service as detailed in the Agreement.
3. Audits and Certifications. The parties agree that the audits described in the Standard Contractual Clauses shall be carried out in accordance with the following conditions:
   1. Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, and no more than once annually during the Agreement, Simplecast shall make available to Customer (or Customer’s independent, third-party auditor that is not a competitor of Simplecast and which is under written obligations of confidentiality) information regarding Simplecast’s compliance with the obligations set forth in this DPA in the form of the audits set forth in Simplecast’s Data Security Documentation to the extent Simplecast makes them generally available to its Customers. Customer may contact Simplecast in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data.
   2. Customer or the relevant Customer Affiliate undertaking an audit shall give Simplecast or the relevant Simplecast Affiliate reasonable notice of any audit or inspection and shall make (and ensure that each of its mandated auditors makes) reasonable efforts to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Simplecast’s and its Affiliates’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. Simplecast or its Affiliates need not give access to their premises for the purposes of such an audit or inspection:
      1. to any individual unless he or she produces reasonable evidence of identity and authority;
      2. outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer or the relevant Customer Affiliate undertaking an audit has given written notice to Simplecast or the relevant Simplecast Affiliate that this is the case before attendance outside those hours begins; or
      3. for the purposes of more than one audit or inspection in any calendar year, except where Customer is required to carry out by Data Protection Law, a Supervisory Authority, or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory.
   3. Customer shall reimburse Simplecast within thirty (30) days of invoice for any time expended for any such on-site audit at Simplecast’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Simplecast shall mutually agree upon the scope and timing of the audit in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly provide Simplecast with a copy of any information regarding any non-compliance discovered during the course of an audit.
4. Certification of Deletion. Certification of Deletion shall be provided upon Customer’s written request to Simplecast.
5. Record of Processing Activities. Simplecast shall maintain a record of all categories of processing activities carried out on behalf of the Customer, in accordance with the provisions of the applicable Data Protection Law.

9. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

1. Simplecast and each Simplecast Affiliate shall provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of Customer 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 Customer Personal Data by, and taking into account the nature of the Processing and information available to, Simplecast.

10. MISCELLANEOUS

1. Without prejudice to Clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses, (i) the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity, termination, or the consequences of its nullity; and (ii) this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
2. Order of precedence. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

Attachment 1

Standard Contractual Clauses (Processors)

For the purposes of Article 46 for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Customer (hereafter “data exporter”) and Audios Ventures, Inc. dba Simplecast or Simplecast.com, a Delaware corporation with its principal place of business located at 24 4th Street, Suite 1007, Troy, NY 12180, help@simplecast.com (hereinafter “data importer”), each a “party” and together, the “parties”, have agreed on the following terms, including the Contractual Clauses (the “Clauses”) in order to evidence adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1 attached hereto and incorporated herein.

(MODULE II)

Transfer Controller to Processor

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.

(b) The Parties: (i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and (ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 –module Two .

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2 Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3 Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4 Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

8.5 Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6 Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7 Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.8 Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

MODULE TWO: Transfer controller to processor

(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 2 weeks in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

(a) The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local Laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1 Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimization

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of N/A.

Clause 18

Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of customer’s country jurisdiction.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A. LIST OF PARTIES

MODULE TWO: Transfer controller to processor

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

Name:
Address:
Contact person’s name, position and contact details: Customer that sigs the Master Terms of service
Activities relevant to the data transferred under these Clauses: Customer collects relevant data as specified below via its websites and/or online channels and forwards this data to Simplecast.
Signature and date: date of the Master Terms of service
Role (controller/processor): Controller

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

Name: Audios Ventures, Inc. dba Simplecast or Simplecast.com, provider of podcast broadcasting software, data storage, and audio delivery services, which processes personal data at the instruction of Data Exporter in accordance with the terms of this DPA.
Address: a Delaware corporation with its principal place of business located at 24 4th Street, Suite 1007, Troy, NY 12180.
Simplecast Contact person’s name, position and contact details:
Activities relevant to the data transferred under these Clauses: specific to Processor
Signature and date: …
Role (controller/processor):Processor

B. DESCRIPTION OF TRANSFER

Simplecast may Process personal data as part of the processing described hereunder. At any time, Customer, as Data Controller, may modify the description of the Processing and will notify in writing such modifications to Simplecast.

Customer shall decide, in its sole discretion, what Personal Data is transferred to and stored on Simplecast’s Service. While the Customer decides what data to submit, it typically may concern the data described below.

MODULE TWO: Transfer controller to processor

Categories of data subjects whose personal data is transferred

Data Exporter may transfer Personal Data to the Service at its sole discretion as controlled by Data Exporter, which may include data regarding the following categories: (1) customers, business partners, vendors, and prospects (who are natural persons); (2) Data Exporter’s users, supporters, prospective users, and prospective supporters, authorized by Data Exporter to use the Service (who are natural persons); (3) Data Exporter’s affiliates, advisors, agents, and freelancers.

• Customers, business partners, vendors, and prospects (who are natural persons);
• Customer’s users, supporters, prospective users, and prospective supporters, authorized by Customer to use the Service (who are natural persons);
• Customer’s affiliates, advisors, agents, and freelancers.

Categories of personal data transferred

The typical personal data processed by Customer using Simplecast’s Services are the following:

• First and Last Name (corresponding to the person publishing the podcast))
• Contact Information (email address corresponding to the person publishing the podcast)
• Data for billing ( active subscription)
• Publicly available social media (e.g., Facebook, Twitter, etc.) profiles, status and information ( optional )
• Internet cookies (only when accessing Simplecast website )
• Listener data : Location data ( IP address is aggregated at city level)

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Not applicable

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

On continuous basis (for the duration of the Agreement)

Nature of the processing

The personal data transferred will be subject to the processing activities described in Terms and condions/Agreement with Simplecast

Purpose(s) of the data transfer and further processing

The purpose of Processing the Personal Data is to provide the Service to Customer in accordance with the Agreement.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

For the period needed in order to perform the services.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

As indicated on the website : https://simplecast.com/subprocessors/

C. COMPETENT SUPERVISORY AUTHORITY

MODULE TWO: Transfer controller to processor

Identify the competent supervisory authority/ies in accordance with Clause 13

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

MODULE TWO: Transfer controller to processor

EXPLANATORY NOTE:

The technical and organizational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Data importer will maintain technical, administrative, and physical measures designed to maintain the confidentiality, security, and integrity of Personal Data uploaded to the Service, as provided in the Data Security Documentation which is made available by data importer.

Description of the technical and organizational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

• All Simplecast information and IT Systems are protected appropriately based on risk, which requires that all information assets are identified and classified, and that asset ownership is assigned and maintained.
• Simplecast’s compute infrastructure is located in Amazon Web Services (AWS) region US-EAST-2. This is located within the United States of America, and specifically within the state of Ohio.
• Due to the nature of AWS, SC also has supplemental resources located in AWS region US-EAST-1 which is located within the state of Virginia. All data belonging to Simplecast which powers our compute infrastructure is located within the borders of the United States of America. No backups, copies of data, or data storage devices exist for Simplecast outside of the United States of America.
• Outsourced to third party vendor - ISO/IEC 27001:2013 certificate. (SC uses AWS for hosting and rely on their certification). Simplecast follows ISO 27001 and uses only PCI-DSS-compliant vendors for financial transaction processing.
• Simplecast implemented leading practices for information security relating to logical security, account management, and remote access by establishing a formalized process for managing risks associated with user account management, access enforcement and monitoring, separation of duties, and remote access.

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter:

The sub-processors engaged to comply with the same or similar security measures as Simplecast.

ANNEX III

LIST OF SUB-PROCESSORS

MODULE TWO: Transfer controller to processor

Explanatory note:

This Annex must be completed for Modules Two, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

The controller has authorised the use of the following sub-processors:

1. The sub-processors and other controllers are indicated in the DPA and on the website: https://simplecast.com/subprocessors/

Attachment 2

Description of Data Processing (only applicable to customers subject to the GDPR)

Simplecast may Process personal data as part of the processing described hereunder. At any time, Customer, as Data Controller, may modify the description of the Processing and will notify in writing such modifications to Simplecast.

Customer shall decide, in its sole discretion, what Personal Data is transferred to and stored on Simplecast’s Service. While the Customer decides what data to submit, it typically may concern the data described below.

Subject-matter

The definition of the Services provided by Simplecast is described in the Agreement entered into between Simplecast and Customer.

Duration

For the duration of the Agreement.

Nature and purpose of the processing

The purpose of Processing the Personal Data is to provide the Service to Customer in accordance with the Agreement.

Type of personal data processed

The typical personal data processed by Customer using Simplecast’s Services are the following:

• First and Last Name
• Contact Information
• Locational data
• Publically available social media (e.g., Facebook, Twitter, etc.) profiles, status and information
• Internet cookies

Except where Union or Member State law provide that a data subject may not consent to any of the items in the following list, Customer may submit special categories of data to the Service to the extent that, under Customer’s sole discretion and control, and which is, for the sake of clarity, Personal Data with information revealing one or more of the following categories of Personal Data:

• NONE

Categories of data subjects

• Customers, business partners, vendors, and prospects (who are natural persons);
• Customer’s users, supporters, prospective users, and prospective supporters, authorized by Customer to use the Service (who are natural persons);
• Customer’s affiliates, advisors, agents, and freelancers.