Data Processing Addendum

Data
Processing
Addendum

Updated May 2024

·

Version 1.1

This Data Processing Addendum (this “Addendum”) is incorporated into and forms part of the Terms of Service (together with any Order(s), the “Agreement”) between 228 Labs, Inc. d/b/a Freeplay (“Freeplay”) and the customer identified in the Agreement (“Customer”). This Addendum shall be effective as of the Effective Date of the Agreement (“Addendum Effective Date”).

Capitalized terms used in this Addendum shall have the meanings set forth in this Addendum.  Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Agreement.  Except as expressly modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree that the terms and conditions set out below shall be added as an addendum to the Agreement.  The following obligations shall only apply to the extent required by Data Protection Laws with regard to the relevant Customer Personal Data, if applicable.

  1. DEFINITIONS

    1. “CCPA” means the California Consumer Privacy Act of 2018 and its implementing regulations, in each case as amended.

    2. “Controller” means an entity that determines the purposes and means of the Processing of Personal Data.

    3. “Customer Personal Data” means any Personal Data contained within Customer Data that is Processed by Freeplay on behalf of Customer to perform the Services under the Agreement. For purposes of clarity, Customer Personal Data shall not include Usage Data.

    4. “Data Protection Laws” means the data privacy and security laws and regulations of any jurisdiction applicable to the Processing of Customer Personal Data, including, in each case to the extent applicable, European Data Protection Laws and the CCPA.

    5. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.

    6. “European Data Protection Laws” means, in each case to the extent applicable: (a) the EU General Data Protection Regulation 2016/679 (“GDPR”); (b) the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Data Protection Act of 2018, and all other laws relating to data protection, the processing of personal data, privacy, or electronic communications in force from time to time in the United Kingdom (collectively, “UK Data Protection Laws”); (c) the Swiss Federal Act on Data Protection (“Swiss FADP”); and (d) any other applicable law, rule, or regulation related to the protection of Customer Personal Data in the European Economic Area, United Kingdom, or Switzerland that is already in force or that will come into force during the term of this Addendum.  

    7. “Personal Data” means information that constitutes “personal information,” “personal data,” “personally identifiable information,” or similar term under Data Protection Laws.

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

    9. “Processor” means an entity that Processes Personal Data on behalf of a Controller.

    10. “Security Incident” means a breach of Freeplay’s security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data in Freeplay’s possession, custody, or control.  “Security Incident” does not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.

    11. “Services” means the right to access certain functionality, products, services, and tools of the Platform that Freeplay has agreed to provide to Customer under the Agreement.

    12. “Standard Contractual Clauses” means, as applicable, Module Two (Transfer controller to processor) or Module Three (Transfer processor to processor) of the standard contractual clauses approved by the European Commission’s implementing decision (C(2021)914) of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/678 or the European Parliament and of the Council (available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D0914&qid=1688587744942), as supplemented or modified by Appendix 3

    13. “Subprocessor” means any Processor appointed by Freeplay to Process Customer Personal Data on behalf of Customer under the Agreement.

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

  2. PROCESSING OF CUSTOMER PERSONAL DATA

    1. Roles of the Parties; Compliance.  The parties acknowledge and agree that, as between the parties, with regard to the Processing of Customer Personal Data under the Agreement, Customer is a Controller and Freeplay is a Processor.  In some circumstances, the parties acknowledge that Customer may be acting as a Processor to a third-party Controller in respect of Customer Personal Data, in which case Freeplay will remain a Processor with respect to the Customer in such event.  Each party will comply with the obligations applicable to it in such role under Data Protection Laws with respect to the Processing of Customer Personal Data.

    2. Customer Instructions.  Freeplay will Process Customer Personal Data only in accordance with Customer’s documented instructions unless otherwise required by applicable law, in which case Freeplay will inform Customer of such Processing unless notification is prohibited by applicable law.  Customer hereby instructs Freeplay to Process Customer Personal Data: (a) to provide the Services to Customer; (b) to perform its obligations and exercise its rights under the Agreement and this Addendum; and (c) as necessary to prevent or address technical problems with the Services.  Freeplay will notify Customer if, in its opinion, an instruction of Customer infringes upon Data Protection Laws.  Customer’s instructions for the Processing of Customer Personal Data shall comply with Data Protection Laws.  Customer shall be responsible for: (i) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Customer’s use and disclosure and Freeplay’s Processing of Customer Personal Data; and (ii) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Customer Personal Data to Freeplay to permit the Processing of such Customer Personal Data by Freeplay for the purposes of performing Freeplay’s obligations under the Agreement or as may be required by Data Protection Laws.  Customer shall notify Freeplay of any changes in, or revocation of, the permission to use, disclose, or otherwise Process Customer Personal Data that would impact Freeplay’s ability to comply with the Agreement, this Addendum, or Data Protection Laws.  

    3. Details of Processing.  The parties acknowledge and agree that the nature and purpose of the Processing of Customer Personal Data, the types of Customer Personal Data Processed, the categories of Data Subjects, and other details regarding the Processing of Customer Personal Data are as set forth in Appendix 1.

    4. Processing Subject to the CCPA.  As used in this Section 2.4, the terms “Sell,” “Share,” “Business Purpose,” and “Commercial Purpose” shall have the meanings given in the CCPA and “Personal Information” shall mean any personal information (as defined in the CCPA) contained in Customer Personal Data.  Freeplay will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes specified in the Agreement, including for any Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA, or (ii) outside of the direct business relationship between Customer and Freeplay; or (c) combine Personal Information received from, or on behalf of, Customer with Personal Data received from or on behalf of any third party, or collected from Freeplay’s own interaction with Data Subjects, except to perform any Business Purpose permitted by the CCPA.  Freeplay hereby certifies that it understands the foregoing restrictions under this Section 2.4 and will comply with them.  The parties acknowledge that the Personal Information disclosed by Customer to Freeplay is provided to Freeplay only for the limited and specified purposes set forth in Appendix 1.  Freeplay will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA.  Customer has the right to take reasonable and appropriate steps to help ensure that Freeplay uses the Personal Information transferred in a manner consistent with Customer’s obligations under the CCPA by exercising Customer’s audit rights in Section 8.  Freeplay will notify Customer if it makes a determination that Freeplay can no longer meet its obligations under the CCPA.  If Freeplay notifies Customer of unauthorized use of Personal Information, including under the foregoing sentence, Customer will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Information shared with Freeplay, terminating the portion of the Agreement relevant to such unauthorized use, or such other steps mutually agreed between the parties in writing. 

  3. CONFIDENTIALITY.  Freeplay shall take reasonable steps to ensure that Freeplay personnel who Process Customer Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality with respect to such Customer Personal Data.

  4. SECURITY.

    1. Security Measures.  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, Freeplay shall implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk, in accordance with the security standards in Appendix 2 (the “Security Measures”).  Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices, provided that the modifications will not materially decrease Freeplay’s security obligations hereunder.

    2. Security Incidents.  Upon becoming aware of a confirmed Security Incident, Freeplay will: (a) notify Customer of the Security Incident within 72 hours if feasible after becoming aware of the Security Incident; and (b) take reasonable steps to identify the cause of such Security Incident, minimize harm, and prevent a recurrence.  Freeplay will take reasonable steps to provide Customer with information available to Freeplay that Customer may reasonably require to comply with its obligations under Data Protection Laws.  Freeplay’s notification of or response to a Security Incident under this Section 4.2 will not be construed as an acknowledgement by Freeplay of any fault or liability with respect to the Security Incident.

    3. Customer Responsibilities.  Customer agrees that, without limitation of Freeplay’s obligations under this Section 4, 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 Customer Personal Data; and (b) securing any account authentication credentials, systems, and devices Customer uses to access or connect to the Services, where applicable.  Without limiting Freeplay’s obligations hereunder, Customer is responsible for reviewing the information made available by Freeplay relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws.  

  5. SUBPROCESSING.  Subject to the requirements of this Section 5, Customer generally authorizes Freeplay to engage Subprocessors as Freeplay considers reasonably appropriate for the Processing of Customer Personal Data.  A list of Freeplay’s Subprocessors, including their functions and locations, is available at https://freeplay.ai/legal/subprocessors and may be updated by Freeplay from time to time in accordance with this Section 5.  Freeplay will notify Customer of the addition or replacement of any Subprocessor at least ten (10) days prior to such engagement.  Customer may object to such changes on reasonable data protection grounds by providing Freeplay written notice of such objection within ten (10) days.  Upon receiving such an objection, where practicable and at Freeplay’s sole discretion Freeplay will use commercially reasonable efforts to: (a) work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; or (b) take corrective steps requested by Customer in its objection and proceed to use the new Subprocessor.  If Freeplay informs Customer that such change or corrective steps cannot be made, Customer may, as its sole and exclusive remedy available under this Section 5, terminate the relevant portion of the Agreement involving the Services which require the use of the proposed Subprocessor by providing written notice to Freeplay.  When engaging any Subprocessor, Freeplay will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this Addendum.  Freeplay shall be liable for the acts and omissions of the Subprocessor to the extent Freeplay would be liable under the Agreement and this Addendum.

  6. DATA SUBJECT RIGHTS.  Freeplay will, taking into account the nature of the Processing of Customer Personal Data and the functionality of the Services, provide reasonable assistance to Customer by appropriate technical and organizational measures, insofar as this is possible, as necessary for Customer to fulfill its obligations under Data Protection Laws to respond to requests by Data Subjects to exercise their rights under Data Protection Laws.  Freeplay reserves the right to charge Customer on a time and materials basis in the event that Freeplay considers that such assistance is onerous, complex, frequent, or time consuming.  If Freeplay receives a request from a Data Subject under any Data Protection Laws with respect to Customer Personal Data, Freeplay will advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request.  

  7. ASSESSMENTS AND PRIOR CONSULTATIONS.  In the event that Data Protection Laws require Customer to conduct a data protection impact assessment, transfer impact assessment, or prior consultation with a Supervisory Authority in connection with Freeplay’s Processing of Customer Personal Data, following written request from Customer, Freeplay shall use reasonable commercial efforts to provide relevant information and assistance to Customer to fulfill such request, taking into account the nature of Freeplay’s Processing of Customer Personal Data and the information available to Freeplay.  Freeplay reserves the right to charge Customer on a time and materials basis in the event that Freeplay considers that such assistance is onerous, complex, frequent, or time consuming.

  8. RELEVANT RECORDS AND AUDIT RIGHTS.

    1. Review of Information and Records.  Upon Customer’s reasonable written request, and where required under Data Protection Laws, Freeplay will make available to Customer all information in Freeplay’s possession reasonably necessary to demonstrate Freeplay’s compliance with Data Protection Laws and Freeplay’s obligations set out in this Addendum.  Such information will be made available to Customer no more than once per calendar year and subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement.

    2. Audits.  At the request of Customer, during the term of the Agreement, if available, Freeplay will provide a copy of its most recent SOC Type II report or similar industry certification or any successor standards (“Report”) for information security management. If Freeplay’s Report is not dated within a year of such request by Customer or otherwise not available, or if Customer requires information for its compliance with Data Protection Laws in addition to the information provided by the Report or under Section 8.1, at Customer’s sole expense and to the extent Customer is unable to access the additional information on its own, Freeplay will allow for, cooperate with, and contribute to reasonable assessments and audits, including inspections, by Customer or an auditor mandated by Customer (“Mandated Auditor”), provided that (a) Customer provides Freeplay with reasonable advance written notice including the anticipated date of the audit, the proposed scope of the audit, and the identity of any Mandated Auditor, which shall not be a competitor of Freeplay; (b) Freeplay approves the Mandated Auditor in writing, with such approval not to be unreasonably withheld; (c) the audit is conducted during normal business hours and in a manner that does not have any adverse impact on Freeplay’s normal business operations; (d) Customer or any Mandated Auditor complies with Freeplay’s standard safety, confidentiality, and security policies or procedures in conducting any such audits; (e) any records, data, or information accessed by Customer or any Mandated Auditor in the performance of any such audit, or any results of any such audit, will be deemed to be the Confidential Information of Freeplay and subject to a nondisclosure agreement to be provided by Freeplay; and (f) Customer may initiate such audit not more than once per calendar year unless otherwise required by a Supervisory Authority or Data Protection Laws.

    3. Results of Audits.  Customer will promptly notify Freeplay of any non-compliance discovered during the course of an audit and provide Freeplay any reports generated in connection with any audit under this Section, unless prohibited by Data Protection Laws or otherwise instructed by a Supervisory Authority.  Customer may use the audit reports solely for the purposes of meeting Customer’s audit requirements under Data Protection Laws to confirm that Freeplay’s Processing of Customer Personal Data complies with this Addendum.

  9. DATA TRANSFERS.

    1. Data Processing Facilities.  Freeplay may, subject to Sections 9.2 and 9.3, Process Customer Personal Data in the United States or anywhere Freeplay or its Subprocessors maintains facilities.  Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of Data Protection Laws.

    2. European Transfers.  If Customer transfers Customer Personal Data to Freeplay that is subject to European Data Protection Laws, and such transfer is not subject to an alternative adequate transfer mechanism under European Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then Customer (as “data exporter”) and Freeplay (as “data importer”) agree that the applicable terms of the Standard Contractual Clauses shall apply to and govern such transfer and are hereby incorporated herein by reference.  In furtherance of the foregoing, the parties agree that: (a) the execution of this Addendum shall constitute execution of the applicable Standard Contractual Clauses as of the Addendum Effective Date; (b) the relevant selections, terms, and modifications set forth in Appendix 3 shall apply, as applicable; and (c) the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under European Data Protection Laws in the absence of such Standard Contractual Clauses on any other basis.  

    3. Other Jurisdictions.  If Customer transfers Customer Personal Data to Freeplay that is subject to Data Protection Laws other than European Data Protection Laws which require the parties to enter into standard contractual clauses to ensure the protection of the transferred Customer Personal Data, and the transfer is not subject to an alternative adequate transfer mechanism under Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then the parties agree that the applicable terms of any standard contractual clauses approved or adopted by the relevant Supervisory Authority pursuant to such Data Protection Laws shall automatically apply to such transfer and, where applicable, shall be completed on a mutatis mutandis basis to the completion of the Standard Contractual Clauses as described in Section 9.2. 

  10. DELETION OR RETURN OF CUSTOMER PERSONAL DATA.  Following termination or expiration of the Agreement, Freeplay shall, at Customer's option, delete or return (in a format determined by Freeplay) Customer Personal Data and all copies to Customer, except as required by applicable law.  If Customer elects for Customer Personal Data to be returned, Freeplay reserves the right to charge Customer on a time and materials basis. If Freeplay retains Customer Personal Data pursuant to applicable law, Freeplay agrees that all such Customer Personal Data will continue to be protected in accordance with this Addendum.

  11. GENERAL TERMS.  This Addendum will, notwithstanding the expiration or termination of the Agreement, remain in effect until, and automatically expire upon, Freeplay’s deletion of all Customer Personal Data.  Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force.  The invalid or unenforceable provision shall be either (a) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible; or, if this is not possible, (b) construed in a manner as if the invalid or unenforceable part had never been contained therein.  To the extent of any conflict or inconsistency between this Addendum and the other terms of the Agreement in relation to the Processing of Customer Personal Data, this Addendum will govern.  Unless otherwise expressly stated herein, the parties will provide notices under this Addendum in accordance with the Agreement, provided that all such notices may be sent via email.  Any liabilities arising in respect of this Addendum are subject to the limitations of liability under the Agreement.  This Addendum will be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

APPENDIX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

  1. Subject matter and duration of the Processing of Customer Personal Data

The subject matter and duration of the Processing are as described in the Agreement and the Addendum.

  1. Nature and purpose of the Processing of Customer Personal Data

The nature of the Processing involves those activities reasonably required to facilitate or support the provision of the Services as described in the Agreement and the Addendum.

The purpose of the Processing of Customer Personal Data includes the following:

  • Helping to ensure security and integrity, to the extent the use of Customer Personal Data is reasonably necessary and proportionate for these purposes;

  • Debugging to identify and repair errors that impair existing intended functionality;

  • Performing the Services as described in the Agreement and carrying out the instructions set forth in Section 2.2, including providing customer service, verifying authorized user information, providing analytic services, providing monitoring & storage, providing evaluations of LLM responses, or providing similar services on behalf of Customer;

  • Undertaking internal research for technological development and demonstration; and

  • Undertaking activities to verify or maintain the quality or safety of the Services, and to improve, upgrade, or enhance the Services.

  1. The categories of Data Subjects to whom Customer Personal Data relates

The categories of Data Subjects shall be as is contemplated or related to the Processing described in the Agreement, and may include Customer’s Authorized Users and customers.

  1. The categories of Customer Personal Data 

The categories of Customer Personal Data Processed are those categories contemplated in and permitted by Agreement, and may include name, email address, user ID, IP address, device ID, and any other information sent to or inputted into the Platform by Customer.

  1. The sensitive data included in Customer Personal Data

Not applicable. See Section 6.3(c) of the Terms of Service for reference.

  1. The frequency of Customer’s transfer of Customer Personal Data to Freeplay:

If applicable, on a continuous basis for the term of the Agreement.

  1. The period for which Customer Personal Data will be retained, or, if that is not possible, the criteria used to determine that period:

As set forth in the Addendum or the Agreement.

  1. For transfers to Subprocessors, the subject matter, nature and duration of the Processing of Customer Personal Data:

If applicable, for the same subject matter, nature, and duration set forth above.



APPENDIX 2: SECURITY MEASURES

  1. Information Security Program.  Implement, maintain, and comply with information security policies and procedures designed to protect the confidentiality, integrity, and availability of Customer Personal Data and any systems that store or otherwise Process it, which are: (a) aligned with an industry-standard control framework (e.g., SOC 2); (b) approved by executive management; (c) reviewed and updated at least annually; and (d) communicated to all personnel with access to Customer Personal Data. 

  2. Risk Assessment.  Maintain risk assessment procedures for the purposes of periodic review and assessment of risks to the organization, monitoring and maintaining compliance with the organization’s policies and procedures, and reporting the condition of the organization’s information security and compliance to internal senior management.

  3. Personnel Training.  Train personnel to maintain the confidentiality, integrity, and availability of Customer Personal Data, consistent with the terms of the Agreement and Data Protection Laws.

  4. Vendor Management.  Prior to engaging Subprocessors and other subcontractors, conduct reasonable due diligence and monitoring to ensure subcontractors are capable of maintaining the confidentiality, integrity, and availability of Customer Personal Data.

  5. Access Controls.  Only authorized personnel and third parties are permitted to access Customer Personal Data.  Maintain logical access controls designed to limit access to Customer Personal Data and relevant information systems (e.g., granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking or changing access when employment terminates or changes in job functions occur).

  6. Secure User Authentication.  Maintain password controls designed to manage and control password strength, expiration, and usage.  These controls include prohibiting users from sharing passwords and requiring that passwords controlling access to Customer Personal Data must: (a) be at least 8 characters in length and meet minimum complexity requirements; (b) not be stored in readable format on the organization’s computer systems; (c) have a history threshold to prevent reuse of recent passwords; and (d) if newly issued, be changed after first use.

  7. Incident Detection and Response.  Maintain policies and procedures to detect and respond to actual or reasonably suspected Security Incidents, and encourage the reporting of such incidents.

  8. Encryption.  Apply industry standard encryption to Customer Personal Data: (a) stored on any medium (i.e., laptops, mobile devices, portable storage devices, file servers and application databases); and (b) transmitted across any public network (such as the Internet) or wirelessly.

  9. Network Security.  Implement network security controls such as up-to-date firewalls, updated intrusion detection and prevention systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.

  10. Vulnerability Management.  Detect, assess, mitigate, remove, and protect against new and existing security vulnerabilities and threats, including viruses, bots, and other malicious code, by implementing vulnerability management, threat protection technologies, and scheduled monitoring procedures.

  11. Change Control.  Follow change management procedures and implement tracking mechanisms designed to test, approve, and monitor all changes to the organization’s technology and information assets.

  12. Physical Security.  Take steps to ensure the physical and environmental security of areas containing Customer Personal Data, including by: (a) protecting information assets from unauthorized physical access; (b) managing, monitoring, and logging movement of persons into and out of the organization’s facilities; and (c) guarding against environmental hazards such as heat, fire, and water damage.

  13. Business Continuity and Disaster Recovery.  Maintain business continuity and disaster recovery policies and procedures designed to maintain service and recover from foreseeable emergency situations or disasters.


APPENDIX 3: STANDARD CONTRACTUAL CLAUSES

  1. Application of Modules.  If Customer is acting as a Controller with respect to Customer Personal Data, “Module Two: Transfer controller to processor” of the Standard Contractual Clauses shall apply.  If Customer is acting as a Processor to a third-party Controller with respect to Customer Personal Data, Freeplay is a sub-Processor and “Module Three: Transfer processor to processor” of the Standard Contractual Clauses shall apply. 

  2. Sections I-V.  The parties agree to the following selections in Sections I-IV of the Standard Contractual Clauses: (a) the parties select Option 2 in Clause 9(a) and the specified time period shall be the notification time period set forth in Section 5 of the Addendum; (b) the optional language in Clause 11(a) is omitted; (c) the parties select Option 1 in Clause 17 and the governing law of the Republic of Ireland will apply; and (d) in Clause 18(b), the parties select the courts of the Republic of Ireland.

  3. Annexes.  The name, address, contact details, activities relevant to the transfer, and role of the parties set forth in the Agreement and the Addendum shall be used to complete Annex I.A. of the Standard Contractual Clauses.  The information set forth in Appendix 1 to the Addendum shall be used to complete Annex I.B. of the Standard Contractual Clauses.  The competent supervisory authority in Annex I.C. of the Standard Contractual Clauses shall be the relevant supervisory authority determined by Clause 13 and the GDPR, unless otherwise set forth in Sections 5 or 6 of this Appendix 3.  If such determination is not clear, then the competent supervisory authority shall be the Irish Data Protection Authority.  The technical and organizational measures in Annex II of the Standard Contractual Clauses shall be the measures set forth in Appendix 2 to the Addendum.

  4. Supplemental Business-Related Clauses.  In accordance with Clause 2 of the Standard Contractual Clauses, the parties wish to supplement the Standard Contractual Clauses with business-related clauses, which shall neither be interpreted nor applied in such a way as to contradict the Standard Contractual Clauses (whether directly or indirectly) or to prejudice the fundamental rights and freedoms of Data Subjects.  Freeplay and Customer therefore agree that the applicable terms of the Agreement and the Addendum shall apply if, and to the extent that, they are permitted under the Standard Contractual Clauses, including without limitation the following:

    1. Instructions.  The instructions described in Clause 8.1 are set forth in Section 2.2 of the Addendum.

    2. Protection of Confidentiality.  In the event a Data Subject requests a copy of the Standard Contractual Clauses or the Addendum under Clause 8.3, Customer shall make all redactions reasonably necessary to protect business secrets or other confidential information of Freeplay.

    3. Deletion or Return.  Deletion or return of Customer Personal Data by Freeplay under the Standard Contractual Clauses shall be governed by Section 10 of the Addendum.  Certification of deletion of Customer Personal Data under Clause 8.5 or Clause 16(d) will be provided by Freeplay upon the written request of Customer.

    4. Audits and Certifications.  Any information requests or audits provided for in Clause 8.9 shall be fulfilled in accordance with Section 8 of the Addendum.

    5. Liability.  The relevant terms of the Agreement which govern indemnification or limitation of liability shall apply to Freeplay’s liability under Clauses 12(a), 12(d), and 12(f).

    6. Termination.  The relevant terms of the Agreement which govern termination shall apply to a termination pursuant to Clauses 14(f) or 16.

  1. Transfers from the United Kingdom.  If Customer transfers Customer Personal Data to Freeplay that is subject to UK Data Protection Laws, the parties acknowledge and agree that: (a) the template addendum issued by the Information Commissioner’s Office of the United Kingdom and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022 (available at: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf), as it may be revised from time to time by the Information Commissioner’s Office (the “UK Addendum”) shall be incorporated by reference herein; (b) the UK Addendum shall apply to and modify the Standard Contractual Clauses solely to the extent that UK Data Protection Laws apply to Customer’s Processing when making the transfer; (c) the information required to be set forth in “Part 1: Tables” of the UK Addendum shall be completed using the information provided in this Appendix 3 and the Addendum; and (d) either party may end the UK Addendum in accordance with section 19 thereof. 

  2. Transfers from Switzerland.  If Customer transfers Customer Personal Data to Freeplay that is subject to the Swiss FADP, the following modifications shall apply to the Standard Contractual Clauses to the extent that the Swiss FADP applies to Customer’s Processing when making that transfer: (a) the term “member state” as used in the Standard Contractual Clauses shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from suing for their rights in their place of habitual residence in accordance with Clause 18(c) of the Standard Contractual Clauses; (b) the Standard Contractual Clauses shall also protect the data of legal entities until the entry into force of the revised Swiss FADP; (c) references to the GDPR or other governing law contained in the Standard Contractual Clauses shall also be interpreted to include the Swiss FADP; and (d) the parties agree that the supervisory authority as indicated in Annex I.C of the Standard Contractual Clauses shall be the Swiss Federal Data Protection and Information Commissioner.

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