1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

1.2 “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Factory to perform its obligations under this DPA or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.

1.3 “Contact Data” means the Personal Data that Factory processes as a controller, such as account information, payment information, and event attendee information.

1.4 “Data Exporter” means Customer.

1.5 “Data Importer” means Factory. 

1.6 “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act, as amended by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”) (together, collectively, the “GDPR”), (iii) the Swiss Federal Act on Data Protection; (iv) the UK Data Protection Act 2018; (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (vi) the Virginia Consumer Data Protection Act (“VCDPA”); in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.  

1.7 “EU SCCs” means the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as modified by Section 6.2 of this DPA. 

1.8 “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR. 

1.9  “ex-UK Transfer” means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018. 

1.10 Personal Data” means "personal data", "personal information", "personally identifiable information" or similar information defined in and governed by Data Protection Laws.

1.11 “Service-Generated Data” means usage data and metadata that is generated through the use of the Services, including data generated through the use of Support Services. This DPA applies to Service-Generated Data to the extent Service-Generated Data constitutes Personal Data.

1.12 “Services” shall have the meaning set forth in the Agreement.

1.13 “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.

1.14 “UK SCCs” means the EU SCCs, as amended by the UK Addendum.  

2.1 The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this DPA or the Agreement, Factory is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Factory to be in breach of the Data Protection Laws.  Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Factory by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Factory regarding the processing of such Personal Data. Customer shall not provide or make available to Factory any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Factory from all claims and losses in connection therewith. 

2.2 Factory shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which  Factory is subject; in such a case, Factory shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws.  Customer hereby instructs Factory to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.

2.3 The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA.

2.4 Following completion of the Services, at Customer’s choice, Factory shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Factory shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Factory have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Factory to Customer only upon Customer’s request. 

2.5 The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CCPA or VCDPA shall be carried out in accordance with the terms set forth in Exhibit E.

Factory shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Factory’s confidentiality obligations in the Agreement. Customer agrees that Factory may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.  

4.1 Customer acknowledges and agrees that Factory may (1) engage its Affiliates and the Authorized Sub-Processors listed in Exhibit B to this DPA to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this DPA, Customer provides general written authorization to Factory to engage sub-processors as necessary to perform the Services.

4.2 Factory’s current Authorized Sub-Processors (the “List”) are located at https://trust.factory.ai/subprocessors. Such List may be updated by Factory from time to time.  Factory may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available.  At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Factory will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Factory within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Factory from offering the Services to Customer.

4.3 If Customer reasonably objects to an engagement in accordance with Section 4.2, and Factory cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Factory.  Discontinuation shall not relieve Customer of any fees owed to Factory under the Agreement. 

4.4 If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Factory, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.

4.5 Factory will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Factory under this DPA with respect to the protection of Personal Data.  In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Factory, Factory will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.

4.6 If Customer and Factory have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Factory of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Factory to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by Factory beforehand, and that such copies will be provided by Factory only upon request by Customer.

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, Factory shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Factory’s technical and organizational security measures.

6.1 The parties agree that Factory may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Factory’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Factory transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Factory will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.

6.2 Ex-EEA Transfers. The parties agree that ex-EEA Transfers are made pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

• 6.2.1 Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Factory is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.
• 6.2.2 Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Factory is processing Personal Data on behalf of Customer as a sub-processor.

6.3 For each module, where applicable the following applies: 

• 6.3.1 The optional docking clause in Clause 7 does not apply. 
• 6.3.2 In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA; 
• 6.3.3 In Clause 11, the optional language does not apply; 
• 6.3.4 All square brackets in Clause 13 are hereby removed; 
• 6.3.5 In Clause 17 (Option 1), the EU SCCs will be governed by Irish law;
• 6.3.6 In Clause 18(b), disputes will be resolved before the courts of Ireland; 
• 6.3.7 Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs; 
• 6.3.8 Exhibit C to this DPA contains the information required in Annex II of the EU SCCs; and 
• 6.3.9 By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes. 

6.4 Ex-UK Transfers. The parties agree that ex-UK Transfers are made pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as Exhibit D of this DPA.  

6.5 Transfers from Switzerland. The parties agree that transfers from Switzerland are made pursuant to the EU SCCs with the following modifications:

• 6.5.1 The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.
• 6.5.2 The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP. 
• 6.5.3 Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Clause 13 shall be observed. 
• 6.5.4 The term “EU Member State” as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs. 

6.6 Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK Transfer, the following supplementary measures shall apply:

• 6.6.1 As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”); 
• 6.6.2 If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Factory shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Factory may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Factory shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Factory is legally prohibited from doing so. Factory shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of such Government Agency Requests; and
• 6.6.3 The Data Exporter and Data Importer will meet regularly to consider whether:
  (i) the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;
  (ii) additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and 
  (iii) it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities. 
• 6.6.4 If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws. 
• 6.6.5 If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.

6.7 Factory shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Factory receives a Data Subject Request in relation to Customer’s data, Factory will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Factory, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.

6.8 Factory shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Factory’s assistance and (ii) Factory is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Factory.

7.1 Factory shall, taking into account the nature of the processing and the information available to Factory, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Factory.

7.2 Factory shall, taking into account the nature of the processing and the information available to Factory, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Factory.

7.3 Factory shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement.  Customer shall, with reasonable notice to Factory, have the right to review, audit and copy such records at Factory’s offices during regular business hours.

7.4 Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Factory shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Factory’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Factory’s data security infrastructure and procedures that is sufficient to demonstrate Factory’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Factory’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Factory for any time expended for on-site audits.  If Customer and Factory have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 7.4. 

7.5 Factory shall immediately notify Customer if an instruction, in Factory’s opinion, infringes the Data Protection Laws or Supervisory Authority.

7.6 In the event of a Personal Data Breach, Factory shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Factory in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Factory’s reasonable control).

7.7 In the event of a Personal Data Breach, Factory shall, taking into account the nature of the processing and the information available to Factory, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.

7.8 The obligations described in Sections 7.6 and 87.7 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Factory’s obligation to report or respond to a Personal Data Breach under Sections 7.6 and 7.7 will not be construed as an acknowledgement by Factory of any fault or liability with respect to the Personal Data Breach.

In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement; and (4) Factory’s privacy policy. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.

Nature and Purpose of Processing: Factory will process Customer’s Personal Data as necessary to provide the Services under the Agreement, for the purposes specified in the Agreement and this DPA, and in accordance with Customer’s instructions as set forth in this DPA. The nature of processing includes, without limitation: 

• Receiving data, including collection, accessing, retrieval, recording, and data entry
• Holding data, including storage, organization and structuring
• Using data, including analysis, consultation, testing
• Protecting data, including restricting, encrypting, and security testing
• Erasing data, including destruction and deletion

Duration of Processing: Factory will process Customer’s Personal Data as long as required (i) to provide the Services to Customer under the Agreement; (ii) for Factory’s legitimate business needs; or (iii) by applicable law or regulation. 

Categories of Data Subjects: Customer employees

‍Categories of Personal Data: Name, email address, job title, and/or GitHub username of Customer’s employees. 

Sensitive Data or Special Categories of Data: None

1. The Parties

• Data exporter(s):Customer and authorized Affiliates of Customer 
  ‍Name: Customer's account owner email address, or to the email address(es) for which Customer elects to receive privacy communicationsActivities relevant to the data transferred under these Clauses: Customer Data will be subject to the following basic processing activities: the provision of Services and disclosures in accordance with the Agreement and/or as compelled by applicable laws.  Personal Data contained in Service-Generated Data and/or Contact Data will be subject to the following processing activities by Factory: Factory may use Service-Generated Data and/or Contact Data to operate, improve and support the Services, to provide marketing and service-related messages and for other lawful business practices, such as analytics, benchmarking and reporting.
  Signature and date: By entering into the Agreement, Data Exporter is deemed to have signed this DPA and the Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
  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: San Francisco AI Factory, Inc.
  Trading Name (if different): Factory
  Address: 410 Townsend St. Suite 100 San Francisco, California, 94107
  Contact person’s name, position and contact details: Eno Reyes, Chief Technology Officer, eno@factory.ai
  Activities relevant to the data transferred under these Clauses: As set forth in the DPA
  Signature and date: 16 October 2023   /s/ Eno Reyes
  Role (controller/processor): Processor

2. Description of the Transfer

3. Competent Supervisory Authority 
The supervisory authority shall be the supervisory authority of the Data Exporter, as determined in accordance with Clause 13 of the EU SCCs. The supervisory authority for the purposes of the UK Addendum shall be the UK Information Commissioner’s Officer.

4. List of Authorized Sub-Processors

The following includes the information required by Annex II of the EU SCCs and Annex II of the UK Addendum. 

International Data Transfer Addendum to the EU Commission Standard Contractual Clauses

Part 1: Tables

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this UK Addendum is set out in:

Table 4: Ending this UK Addendum when the Approved UK Addendum Changes 

Entering into this UK Addendum
‍1. Each party agrees to be bound by the terms and conditions set out in this UK Addendum, in exchange for the other party also agreeing to be bound by this UK Addendum.
2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making ex-UK Transfers, the Parties may enter into this UK Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this UK Addendum. Entering into this UK Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.


Interpretation of this UK Addendum
3. Where this UK Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

4. The UK Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards. 
5. If the provisions included in the UK Addendum amend the Approved EU SCCs in any way which is not permitted under the Approved EU SCCs or the Approved UK Addendum, such amendment(s) will not be incorporated in the UK Addendum and the equivalent provision of the Approved EU SCCs will take their place.
6. If there is any inconsistency or conflict between UK Data Protection Laws and the UK Addendum, UK Data Protection Laws applies.
7. If the meaning of the UK Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies. 
8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after the UK Addendum has been entered into. 

Hierarchy
‍9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for ex-UK Transfers, the hierarchy in Section 10 below will prevail.
10. Where there is any inconsistency or conflict between the Approved UK Addendum and the EU SCCs (as applicable), the Approved UK Addendum overrides the EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved UK Addendum. 
11. Where this UK Addendum incorporates EU SCCs which have been entered into to protect ex-EU Transfers subject to the GDPR, then the parties acknowledge that nothing in the UK Addendum impacts those EU SCCs.

Incorporation and Changes to the EU SCCs 
12. This UK Addendum incorporates the EU SCCs which are amended to the extent necessary so that:

• together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
• Sections 9 to 11 above override Clause 5 (Hierarchy) of the EU SCCs; and
• the UK Addendum (including the EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales.

13. Unless the parties have agreed alternative amendments which meet the requirements of Section 12 of this UK Addendum, the provisions of Section 15 of this UK Addendum will apply.
14. No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 of this UK Addendum may be made.
15. The following amendments to the EU SCCs (for the purpose of Section 12 of this UK Addendum) are made: 

• References to the “Clauses” means this UK Addendum, incorporating the EU SCCs;
• In Clause 2, delete the words: “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”,
• Clause 6 (Description of the transfer(s)) is replaced with: “The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
• Clause 8.7(i) of Module 1 is replaced with: “it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
• Clause 8.8(i) of Modules 2 and 3 is replaced with: “the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
• References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
• References to Regulation (EU) 2018/1725 are removed;
• References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
• The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
• Clause 13(a) and Part C of Annex I are not used;
• The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
• In Clause 16(e), subsection (i) is replaced with: “the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”; 
• Clause 17 is replaced with: “These Clauses are governed by the laws of England and Wales”;
• Clause 18 is replaced with: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales.” A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The parties agree to submit themselves to the jurisdiction of such courts.”; and
• The footnotes to the Approved EU SCCs do not form part of the UK Addendum, except for footnotes 8, 9, 10 and 11. 

Amendments to the UK Addendum
16. The parties may agree to change Clauses 17 and/or 18 of the EU SCCs to refer to the laws and/or courts of Scotland and Northern Ireland.
17. If the parties wish to change the format of the information included in Part 1: Tables of the Approved UK Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
18. From time to time, the ICO may issue a revised Approved UK Addendum which: 

• makes reasonable and proportionate changes to the Approved UK Addendum, including correcting errors in the Approved UK Addendum; and/or
• reflects changes to UK Data Protection Laws;

The revised Approved UK Addendum will specify the start date from which the changes to the Approved UK Addendum are effective and whether the parties need to review this UK Addendum including the Appendix Information. This UK Addendum is automatically amended as set out in the revised Approved UK Addendum from the start date specified. 

19. If the ICO issues a revised Approved UK Addendum under Section 18 of this UK Addendum, if a party will as a direct result of the changes in the Approved UK Addendum have a substantial, disproportionate and demonstrable increase in: 

• its direct costs of performing its obligations under the UK Addendum; and/or 
• its risk under the UK Addendum, 

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that party may end this UK Addendum at the end of a reasonable notice period, by providing written notice for that period to the other party before the start date of the revised Approved UK Addendum.
‍
20. The parties do not need the consent of any third party to make changes to this UK Addendum, but any changes must be made in accordance with its terms.

This United States Privacy Law Exhibit (“Exhibit”) supplements the DPA and includes additional information required by the CCPA and the VCDPA, in each case, as updated, amended or replaced from time to time. Any terms not defined in this Exhibit shall have the meanings set forth in the DPA and/or the Agreement.   

A. California

1. Definitions

1.1 For purposes of this Section A, the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,” “Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer Request” shall have the meanings set forth in the CCPA.

1.2 All references to “Personal Data,” “Controller,” “Processor,” and “Data Subject” in the DPA shall be deemed to be references to “Personal Information,” “Business,” “Service Provider,” and “Consumer,” respectively, as defined in the CCPA.

2. Obligations

2.1 The parties acknowledge and agree that Factory is a Service Provider for the purposes of the CCPA (to the extent it applies) and Factory is receiving Personal Information from Customer in order to provide the Services pursuant to the Agreement, which constitutes a Business Purpose.

2.2 Customer shall disclose Personal Information to Factory only for the limited and specified purposes described in Exhibit A to this DPA.

2.3 Factory shall not Sell or Share Personal Information provided by Customer under the Agreement.

2.4 Factory shall not retain, use, or disclose Personal Information provided by Customer pursuant to the Agreement for any purpose, including a Commercial Purpose, other than as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or as otherwise set forth in the Agreement or as permitted by the CCPA. 

2.5 Factory shall not retain, use, or disclose Personal Information provided by Customer pursuant to the Agreement outside of the direct business relationship between Factory and Customer, except where and to the extent permitted by the CCPA.

2.6 Factory shall notify Customer if it makes a determination that it can no longer meet its obligations under the CCPA.

2.7 Factory will not combine Personal Information received from, or on behalf of, Customer with Personal Information that it receives from, or on behalf of, another party, or that it collects from its own interaction with the Consumer.

2.8 Factory shall comply with all obligations applicable to Service Providers under the CCPA, including by providing Personal Information provided by Customer under the Agreement the level of privacy protection required by CCPA.

2.9  Factory shall only engage a new sub-processor to assist Factory in providing the Services to Customer under the Agreement in accordance with Section 4.1 of the DPA, including, without limitation, by: (i) notifying Customer of such engagement via the notification mechanism described in Section 4.1 of the DPA at least ten (10) days before enabling a new Sub-Processor; and (ii) entering into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements set forth in the CCPA.

3. Consumer Rights

3.1  Factory shall assist Customer in responding to Verifiable Consumer Requests to exercise the Consumer’s rights under the CCPA as set forth in Section 7 of the DPA.

4. Audit Rights

4.1  To the extent required by CCPA, Factory shall allow Customer to conduct inspections or audits in accordance with Sections 8.3 and 8.4 of the DPA.

B. Virginia

1. Definitions

1.1 For purposes of this Section B, the terms “Consumer,” “Controller,” “Personal data,” “Processing,” and “Processor” shall have the meanings set forth in the VCDPA.

1.2 All references to “Data Subject” in this DPA shall be deemed to be references to “Consumer” as defined in the VCDPA.

2. Obligations

2.1 The parties acknowledge and agree that Customer is a Controller and Factory is a Processor for the purposes of the VCDPA (to extent it applies).

2.2 The nature, purpose, and duration of Processing, as well as the types of Personal Data and categories of Consumers are described in Exhibit A to this DPA.

2.3 Factory shall adhere to Customer’s instructions with respect to the Processing of Customer Personal Data and shall assist Customer in meeting its obligations under the VCDPA by:

• 2.3.1 Assisting Customer in responding to Consumer rights requests under the VCDPA as set forth in Section 7 of the DPA;
• 2.3.2 Complying with Section 5 (“Security of Personal Data”) of the DPA with respect to Personal Data provided by Customer;
• 2.3.3 In the event of a Personal Data Breach, providing information sufficient to enable Customer to meet its obligations pursuant to Va. Code § 18.2-186.6; and
• 2.3.4 Providing information sufficient to enable Customer to conduct and document data protection assessments to the extent required by VCDPA.

2.4 Factory shall maintain the confidentiality of Personal Data provided by Customer and require that each person Processing such Personal Data be subject to a duty of confidentiality with respect to such Processing;

2.5 Upon Customer’s written request, Factory shall delete or return all Personal Data provided by Customer in accordance with Section 2.4 of the DPA, unless retention of such Personal Data is required or authorized by law or the DPA and/or Agreement.

2.6 In the event that Factory engages a new sub-processor to assist Factory in providing the Services to Customer under the Agreement, Factory shall enter into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements of a Processor set forth in the VCDPA.

3. Audit Rights

3.1  Upon Customer’s written request at reasonable intervals, Factory shall, as set forth in Sections 8.3-8.4 of the DPA, (i) make available to Customer all information in its possession that is reasonably necessary to demonstrate Factory’s compliance with its obligations under the VCDPA; and (ii) allow and cooperate with reasonable inspections or audits as required under the VCDPA.