Data Processing Agreement

The terms used in this DPA shall have the meanings set forth in this DPA or as defined by Applicable Privacy Law, whichever is broader. Capitalized terms not otherwise defined herein or defined by Applicable Privacy Law shall have the meaning given to them in the Agreement. The following terms have the meanings set forth below:

1.1. “Applicable Privacy Law” shall mean applicable data privacy, data protection, consumer messaging, and cybersecurity laws, rules and regulations to which Siren is subject, including, but not limited to, (a) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act (“CCPA”), (b) other applicable United States state consumer privacy laws, (c) the Telephone Consumer Protection Act and applicable state telemarketing and text messaging laws, (d) any other applicable law with respect to any Personal Data in respect of which Siren is subject to, and (e) any guidance or statutory codes of practice issued by any relevant Privacy Authority, in each case, as amended from time to time and any successor legislation to the same.

1.2. “Data Subject” shall mean an identified or identifiable natural person.

1.3. “Personal Data” shall mean (i) personal data, personal information, personally identifiable information, or similar term as defined by Applicable Privacy Law or (ii) if not defined by Applicable Privacy Law, any information that relates to a Data Subject; in each case, to the extent Processed by Siren, on behalf of Customer, in connection with Siren’s performance of the Services.

1.4. “Privacy Authority” shall mean any competent supervisory authority, attorney general, or other regulator with responsibility for privacy or data protection matters in the jurisdiction of Siren.

1.5. “Process”, “Processing” or “Processed” shall mean any operation or set of operations, as defined in the Applicable Privacy Law, performed upon Personal Data whether or not by automatic means, including collecting, recording, organizing, storing, adapting or altering, retrieving, consulting, using, disclosing, making available, aligning, combining, blocking, erasing and destroying Personal Data.

1.6. “Security Breach” shall mean an actual breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data when transmitted, stored or otherwise processed by Siren.

1.7. “Services” shall mean the services as described in the Agreement or any related order form or statement of work.

1.8. “Subprocessor” shall mean any subcontractor (including any third party) engaged by Siren to Process Personal Data on behalf of Customer.

2.1. Siren shall comply with Applicable Privacy Law in the Processing of Personal Data and only Process Personal Data for the purposes of providing the Services and in accordance with Customer’s instructions, and as may subsequently be agreed between the Parties in writing. Siren shall promptly inform Customer if (a) in Siren’s opinion, an instruction from Customer violates Applicable Privacy Law; or (b) Siren is required by applicable law to otherwise Process Personal Data, unless Siren is prohibited by that law from notifying Customer under applicable law.

2.2. Siren shall implement and maintain reasonable and appropriate technical measures that will ensure that Customer’s reasonable and lawful instructions can be complied with, including the following:

(a) updating, amending, correcting, or providing access to the Personal Data of any Data Subject upon written request of Customer from time to time;

(b) canceling, deleting, or blocking access to any Personal Data upon receipt of written instructions from Customer;

(c) otherwise facilitating Customer’s responses to Data Subject requests as required under Applicable Privacy Law; and

(d) Siren shall promptly redirect any request from a Data Subject to exercise any of its Data Subject rights to Customer, and shall not respond directly to the Data Subject unless instructed so by Customer in writing.

2.3. Siren acknowledges that (a) Customer discloses Personal Data to Siren solely for the business purpose of Customer, and (b) Siren has not and will not receive any monetary or other valuable consideration in exchange for its receipt of the Personal Data, and that any consideration paid by Customer to Siren under the Agreement relates only to Siren’s provision of the Services. Siren shall not collect, retain, use, disclose, or otherwise Process the Personal Data (i) for any purpose other than for the specific purpose of providing the Services to Customer, including building, training, evaluating, and improving the models and systems that deliver the Services, as permitted for a Service Provider under Applicable Privacy Law, or (ii) outside of the direct business relationship between Siren and Customer. Siren shall not combine Personal Data received from Customer with Personal Data received from any other person except as permitted by Applicable Privacy Law, and shall notify Customer if it determines it can no longer meet its obligations under Applicable Privacy Law. In addition, Siren shall not “sell” or “share,” as defined under Applicable Privacy Law (including, without limitation, CCPA), any Personal Data or otherwise disclose any Personal Data to a third party for cross-context behavioral or targeted advertising purposes.

2.4. Siren shall provide to Customer such co-operation, assistance and information as Customer may reasonably request to enable it to comply with its obligations under Applicable Privacy Law and co-operate and comply with the directions or decisions of a relevant Privacy Authority, in each case (a) solely to the extent applicable to Siren’s provision of the Services, and (b) within such reasonable time as would enable Customer to meet any time limit imposed by the Privacy Authority.

3.1. Siren shall maintain, during the term of the Agreement, appropriate technical and organizational security measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorized disclosure or access.

3.2. Siren shall ensure the reliability of any employees who Process Personal Data.

3.3. Siren will ensure that any employees entrusted with the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(a) Customer’s Security Responsibilities. Customer agrees that, without limitation of Siren’s obligations under Section 3 (Security of Personal Data) or the Parties’ obligations under the Agreement, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Siren uses to provide the Services; and (d) backing up Personal Data.

(b) Customer’s Security Assessment. Customer agrees that the Services and Siren’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Privacy Law, and provide a level of security appropriate to the risk in respect of the Personal Data.

5.1. Customer generally authorizes Siren to engage Subprocessors in connection with the Processing of Personal Data for the performance of the Agreement. Siren will maintain a list of its Subprocessors at the following URL: https://www.sirenpro.com/legal/subprocessors, and will add the names of new and replacement Subprocessors as applicable from time to time.

5.2. Siren will inform Customer of its intention to engage any new or replacement Subprocessors in writing at least fifteen (15) days in advance of the date of the intended commencement of the engagement. Customer may object to such intended engagement by giving written notice at the latest ten (10) days in advance of the date of the intended commencement of the engagement. If Customer objects to Siren’s appointment of a Subprocessor on reasonable grounds relating to the protection of Personal Data, then Siren will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration of use of the Services to avoid using the objected-to Subprocessor. If Siren is unable to make available the change within a reasonable period of time, Customer may terminate the applicable order form with respect only to those Services which cannot be provided without the use of the objected-to Subprocessor by providing written notice to Siren. Siren will refund Customer any prepaid fees covering the remainder of the term of such order form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.

5.3. Siren will contractually impose substantially similar data protection obligations on its Subprocessors as those imposed on Siren under this DPA. Siren shall remain liable for any Processing of Personal Data by each such Subprocessor as if it had undertaken such Processing itself.

6.1. Notification to Customer. Unless otherwise prohibited by applicable law, Siren shall notify Customer without undue delay, and in any event within 72 hours after Siren becomes aware of a Security Breach. Such notification shall include, to the extent such information is available (a) a detailed description of the Security Breach, (b) the type of data that was the subject of the Security Breach and (c) the identity of each affected person (or, where not possible, the approximate number of Data Subjects and of Personal Data records concerned). In addition, Siren shall communicate to Customer (i) the name and contact details of Siren’s point of contact where more information can be obtained, (ii) a description of the likely consequences of the Security Breach, (iii) a description of the measures taken or proposed to be taken by Siren to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.

6.2. Investigation. Siren shall take prompt action to investigate the Security Breach and shall use industry standard, commercially reasonable efforts to mitigate the effects of any such Security Breach in accordance with its obligations hereunder.

Siren shall, promptly upon receipt of written request by Customer and where required by Applicable Privacy Law (a) make available to Customer such information as is reasonably necessary to demonstrate Customer’s compliance with Applicable Privacy Law to the extent applicable to the Services, and (b) reasonably assist Customer in carrying out any privacy impact assessment or data protection assessment and any required prior consultations with Privacy Authorities, taking into account the nature of the Processing and the information available to Siren. Siren shall reasonably cooperate with Customer to implement such mitigation actions as are reasonably required to address privacy risks identified in any such assessment. Unless such request follows a Security Breach or is otherwise required by Applicable Privacy Law, Customer shall not make any such request more than once in any 12-month period.

Customer may audit Siren’s compliance with its obligations under this DPA no more than once per year. Siren will reasonably contribute to such audits by providing Customer or Customer’s Privacy Authority with the information and assistance that Siren considers appropriate in the circumstances and reasonably necessary to conduct the audit. To request an audit, Customer must submit a proposed audit plan to Siren at least two weeks in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Siren will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Siren security, privacy, employment or other relevant policies). Siren will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 8 shall require Siren to breach any duties of confidentiality. If the controls or measures to be assessed in the requested audit are addressed in a SOC 2 Type 2 or similar audit report performed by a qualified third party auditor, or a completed security questionnaire, within twelve (12) months of Customer’s audit request and Siren has confirmed there have been no known material changes in the controls audited since the date of such report, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures. The audit must be conducted during regular business hours, subject to the agreed final audit plan and Siren’s safety, security or other relevant policies, and may not unreasonably interfere with Siren business activities. Any audits are at Customer’s sole expense. Customer shall reimburse Siren for any time expended by Siren and any third parties in connection with any audits or inspections under this Section 8 at Siren’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

Siren shall, promptly and in any event within 90 days of expiration or termination of the Agreement or following receipt of written notice from Customer, (a) return a complete copy of all Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Siren; and (b) delete and procure the deletion of all other copies of Personal Data Processed by Siren, except for records of opt-outs, suppression, and message sending that Siren is required by Applicable Privacy Law to retain, which Siren shall retain only for so long as such law requires and shall not use for any other purpose. This obligation is in addition to Siren’s obligations concerning the destruction or return of Customer’s Confidential Information as provided in the Agreement.

Requests to delete personal data should be directed to info@sirenpro.com.

10.1. Unless prohibited by applicable law, Siren shall promptly notify Customer of any inquiry, communication, request or complaint, to the extent relating to Siren’s Processing of Personal Data on behalf of Customer, from:

(a) any governmental, regulatory or supervisory authority, including Privacy Authorities or the U.S. Federal Trade Commission; and/or

(b) any Data Subject, and shall, taking into account the nature of the Processing, provide reasonable assistance to enable Customer to respond to such inquiries, communications, requests or complaints and to meet applicable statutory or regulatory deadlines. Siren shall not disclose Personal Data to any of the persons or entities in (a) or (b) above unless it is legally required to do so and has otherwise complied with the obligations in this Section 10.1 and Section 10.2.

10.2. In the event that Siren is required by law, court order, warrant, or other legal judicial process (“Legal Request”) to disclose any Personal Data to any person or entity other than Customer, including any national security authority or other government body, Siren shall attempt to redirect the government request to Customer. If Siren is unable to redirect the request, Siren shall, unless prohibited by applicable law, notify Customer promptly and shall provide all reasonable assistance to Customer to enable Customer to respond or object to, or challenge, any such Legal Requests and to meet applicable statutory or regulatory deadlines. If Siren is prohibited by applicable law from providing notice to Customer of a Legal Request, Siren shall use commercially reasonable efforts to object to, or challenge, any such Legal Request to avoid or minimize the disclosure of Personal Data. Siren shall not disclose Personal Data pursuant to a Legal Request unless it is required to do so by applicable law and has otherwise complied with the obligations in this Section 10.2.

Siren Processes and stores Personal Data in the United States. The Parties shall execute the applicable standard contractual clauses before Siren Processes any Personal Data originating in the European Economic Area, the United Kingdom, or Switzerland.

Any claims brought under, or in connection with, this DPA, shall be subject to the exclusions and limitations of liability set forth in the Siren Software Licensing Agreement.