Data Processing Addendum

Last Updated: May 28, 2024

This Data Processing Addendum (the “DPA”) is made by and between S Wave International Corp (d/b/a “DISCO” or “Company”) and “Customer” (each a “Party” and together, “Parties”) and supplements the DISCO Terms and Conditions. If DISCO and Customer have agreed to a bespoke DPA, that agreement shall control, otherwise, this DPA shall control the processing of Customer data.

1. Definitions

1.1 For the purposes of the DPA:

1.1.1. “Controller”, “Personal Data”, “Personal Data Breach”, and “Processor” shall each have the meaning given to them in the GDPR (defined below);

1.1.2. “Customer Data” means any data that is (a) disclosed to Company in connection with Company’s performance of the Service or (b) collected, stored, processed, transmitted, accessed, or used by Company in connection with Company’s performance of the Services;

1.1.3. “Data Protection Legislation” means all applicable legislation relating to data protection and privacy including without limitation the laws of Australia, the United Kingdom, the United States, and the European Union including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time;

1.1.4. “Data Subject” has the meaning given in the GDPR;

1.1.5. “GDPR” means the General Data Protection 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; and

1.1.6. “Standard Contractual Clauses” means the agreement executed by and between Customer and Company and attached hereto as Attachment 3 pursuant to the European Commission’s decision (C(2021)915) of 4 June 2021 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

2. Details of The Processing

2.1. Categories of Data Subjects

This Addendum applies to the Processing of Customer Data relating to Company’s employees, contractors, and customers, as well as artists and artist management.

2.2. Types of Personal Data

Customer Data includes first and last name, business contact information such as email and address, employment information and any other Personal Data incidentally included in materials relating to the Services.

2.3. Subject-Matter, Nature and Purpose of the Processing

Customer Data will be Processed by the Company for purposes of providing the Services to the Customer as set out in the Agreement.

2.4. Duration of The Processing.

Customer Data will be Processed for the duration of the Agreement until deletion or return of such data as instructed by the Customer under this Addendum.

3. Processing of Customer Data

3.1. Company shall only Process Customer Data on behalf of and in accordance with the Customer’s prior written instructions (including as set out in this Addendum and the Agreement) and for no other purpose. The Company is hereby instructed to Process Customer Data to the extent necessary to provide the Services in accordance with the Agreement. In case the Processing is prohibited by the Data Protection Legislation to which the Company is subject, the Company shall promptly (i) notify the Customer of that legal requirement and/or of the inability to comply with any instructions before the relevant Processing, to the extent permitted by the Data Protection Legislation; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Customer Data) until such time as the Customer issues new instructions.

3.2. Company will not: (a) sell Customer Data; (b) retain, use, or disclose Customer Data for any purpose other than the specific purpose of performing the Services for Customer; or (c) retain, use, or disclose Customer Data outside of Company’s direct relationship with Customer.

3.3. Company certifies that it understands and will comply with the restrictions and obligations contained in this Addendum.

4. Data Transfers

4.1. Company acknowledges that Customer Data includes Personal Data relating to individuals located in the European Economic Area (“EEA”) that has been exported from the EEA pursuant to the Standard Contractual Clauses (Processors) available at https://eur-lex.europa.eu/eli/dec_impl/2021/915 (“SCCs”).

4.2. Accordingly, in order to comply with Customer’s obligations under Clause 11 of the SCCs, the Parties agree to comply with the Attachment 3 of this DPA.

5. Confidentiality

5.1. Company shall ensure that Customer Data is not made accessible to its personnel who do not need to have access to the data in order to carry out their roles in the performance of the Company’s obligations under this Addendum and that persons authorized to process the data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

6. Security Measures

6.1. Company shall implement, and maintain throughout the term of the DPA at all times in accordance with then current good industry practice, technical and organizational measures to protect against unauthorized or unlawful Processing of, or accidental loss, destruction, or damage to, Customer Data, including all measures required by Article 32 of the GDPR. On request, Company shall provide the Customer with a written description of the security measures being taken.

6.2. Company shall provide the Customer with assistance necessary for the fulfillment of the Customer’s obligation to keep Customer Data secure.

7. Sub-Processing

7.1. Prior to allowing a Sub-Processor, authorized in accordance the above, to process any Customer Data, Company shall enter into a binding written agreement with the Sub-Processor that imposes on the Sub-Processor the same obligations that apply to the Company under the DPA, including those set forth in Attachment 2. Company remains fully liable to Customer for any acts or omissions of any Sub-Processors as if such acts and omissions were conducted by Company.

8. Cooperation

8.1. During the term of the Agreement, Company shall:

8.1.1. provide all assistance required by Customer to enable Customer to address any request or complaint received from Data Subjects or any applicable data protection or similar authority. Company shall notify Customer without undue delay and in any event no less than 72 hours’ notice of any request or complaint Company receives from Data Subjects or other third parties or any requests received from applicable data protection or similar authorities regarding Customer Data. Company shall not respond to any such requests except on the documented instructions of the Customer;

8.1.2. provide all assistance reasonably required by Customer in order for Customer to ensure compliance with Customer’s obligations under the Data Protection Legislation, including: (1) to give effect to the rights of Data Subjects under the Data Protection Legislation, and (2) to conduct data protection impact assessments and consultation with data protection authorities, if the Customer is required to do so under the Data Protection Legislation.

9. Personal Data Breaches

9.1. Company shall notify the Customer without undue delay and in any event no later than seventy-two (72) hours after it becomes aware of any Personal Data Breach affecting any Customer Data. Company shall (i) provide Customer with a detailed description of the Personal Data Breach, including the date and time of the detection of the Personal Data Breach, the cause of the Personal Data Breach, the technical and organizational security measures applied at the time of and following the Personal Data Breach, any Sub-processors or other third parties involved in the Personal Data Breach, the type of Customer Data concerned, approximate number of Data Subjects concerned, the categories and approximate number of Personal Data records concerned and the likely consequences of the Personal Data Breach; (ii) take such actions as may be necessary or required by Customer to minimize the effects of the Personal Data Breach, (iii) provide all such timely information and cooperation as Customer may require in order for Customer to meet any obligations to report or inform Data Subjects or the relevant data protection authorities of the Personal Data Breach under the Data Protection Legislation.

10. Deletion of Customer Data

10.1. Company shall retain Customer Data as long as it is materially useful for the provision of Services. Company shall, at Customer’s instruction, delete Customer Data after the end of the provision of Services, and delete all existing copies unless European Union or Member State law requires storage of the data.

11. Information

11.1. Company shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this Addendum. Company shall immediately inform the Customer if, in its opinion, an instruction infringes the Data Protection Legislation.

12. Liability

12.1. Nothing in this Addendum or the Agreement excludes or limits Company’s liability for any claims, losses, costs, liabilities, settlements and damages arising from or related to any regulatory enforcement action or claim by a Data Subject or third party resulting from a violation by the Company of its obligations under the Data Protection Laws or this Addendum.

13. Indemnity

13.1. Each Party acknowledges and agrees to indemnify and hold harmless the other Party on demand for any cost, charge, liability, damages, expenses or loss (together, “Loss”) the other party incurs or suffers as a result of any claim by a third party or competent authority to the extent that Loss arises as a result of any violation of the Data Protection Legislation or the DPA committed by the indemnifying Party. Indemnification is contingent upon:

a) The other Party promptly notifying the indemnifying Party of a claim, and

b) The other Party consulting with the indemnifying Party in the defense and settlement of the claim.

14. General Provisions

14.1. With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the Parties, including the Agreement, the provisions of this Addendum shall prevail.

Attachment 1

Subject Matter and Details of the Data Processing

Subject Matter: DISCO’s provision of the Services to Customer.

Duration of the Processing: The Term plus the period from the expiry of the Term until deletion of all Customer Data by DISCO in accordance with the DPA.

Nature and Purpose of the Processing: DISCO shall process Customer Data for the purposes of providing the Services to Customer in accordance with the DPA.

Categories of Data: Data relating to individuals provided to DISCO in connection with the Services, by (or at the direction of) Customer.

Attachment 2

Security Measures

As from the DPA Effective Date, DISCO shall implement and maintain the appropriate security measures as required by law and in line with current good industry practice.

Attachment 3: Standard Contractual Clauses (Processor)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: Customer and/or its affiliates operating in the countries which comprise the European Economic Area and/or Switzerland and/or in any other country which accepts the EU Model Clauses, which are data controllers and transfer personal data to the data importer. Customer signs these Clauses on its behalf and on behalf of any such affiliates, each a “data exporter.”

If other Customer affiliates wish to enter into these Clauses with the data importer, Customer shall notify the data importer in writing and upon receipt of such notice, the relevant subsidiary shall be deemed to have signed these Clauses with the data importer.

Customer executes these Clauses on behalf of each data exporter and each data exporter thereby enters into a separate agreement with the data importer, which shall in each case be governed by the law of the Member State in which the relevant data exporter is established,

and

Name of the data importing organisation: S Wave International Corp, address 9450 SW Gemini Drive, PMB 74481, Beaverton OR 97008, the “data importer,”

each a party; together the Parties,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce 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.

Clause 1: Definitions

For the purposes of the Clauses:

  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. ‘technical and organisational security’ measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2: Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3: Third-party beneficiary clause

  1. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  2. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4: Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
  5. a. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
  6. b. any accidental or unauthorised access, and
  7. c. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  8. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  9. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  10. to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  11. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  12. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  13. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6: Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and Jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
  2. a. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
  3. b. to refer the dispute to the courts in the Member State in which the data exporter is established.
  4. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8: Cooperation with Supervisory Authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9: Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10: Variation of the Contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Subprocessing

  1. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data importer shall keep a list of subprocessing agreements, which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority upon request.

Clause 12: Obligation after the Termination of Personal Data Processing Services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the request of the data exporter, return all the personal data transferred and the copies thereof to the data exporter, if possible, or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

The details of the processing are set out in Attachment 1 of the Data Protection Addendum to which these Clauses are appended.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses.

Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

The security measures are set out in Attachment 2 of the Data Protection Addendum to which these Clauses are appended.