Data Processing Addendum

This Data Processing Addendum (“Addendum”) is an agreement between Exceed AI Ltd. (“Company” or “Data Processor”) and you or the entity you represent (“Customer” or “Data Controller”). This DPA supplements the Company’s Terms and Conditions Agreement available at https://exceed.ai/terms/, as updated from time to time, between Customer and Company or other agreement between Customer and Company governing Customer’s use of the Company’s Service (the “Agreement”).

1.1

To the extent that Company Processes Personal Data (as defined below) on behalf of Customer in the course of the provision of its Services, this Addendum shall apply.

In consideration of the mutual obligations set out herein, the parties agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. Except where the context requires otherwise, references in this Addendum to the Agreement are to the Agreement as amended, and including, this Addendum.

2. Definitions

2.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:

1.1.1 “Applicable Laws” means (a) European Union law or any laws of a member state of the European Union in respect of which Company or Customer is subject to; and (b) any Israeli and other applicable law in respect of which Company or Customer is subject to;

1.1.2″Customer Personal Data” means any Personal Data which may be processed on behalf of Customer, pursuant to or in connection with the Agreement;

1.1.3 “Standard Clauses” means the standard clauses for the transfer of Personal Data pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council  available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D0914&from=EN

“Data Protection Legislation” 

2.1.1 GDPR 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 repealing Directive 95/46/EC (General Data Protection Regulation) as amended from time to time or any regulation replacing the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, relevant Israeli applicable law, any applicable data protection or privacy law in respect of which Company or Customer is subject to.

1.1.5 “EU” means the European Union;

1.1.6″EEA” means the European Economic Area. The GDPR applies to the European Economic Area (EEA), which includes all EU countries as well as Iceland, Liechtenstein and Norway;

1.1.7″GDPR” means EU General Data Protection Regulation 2016/679;

1.1.8 “Services” means the services as defined in the Agreement;

1.1.9 “Sub-processor” means any person (excluding an employee of Company or any of its sub-contractors) appointed by or on behalf of Company to Process Personal Data on behalf of Customer in connection with the Agreement;

1.1.10 “Supervisory Authority” means (a) an independent public authority which is established by a member state of the European Union pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Legislation; and

1.1.11 “Term” means the term of the Agreement, as defined therein.

1.2 The terms “Controller“, “Processor“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, and Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Customer Personal Data

2.1 The parties acknowledge that Customer is the Controller and shall comply with the obligations of a Controller under the GDPR and that Company is acting in the capacity of a Processor. In some circumstances, Customer may additionally or alternatively be a Processor, in which case Customer appoints Company as an authorised sub-processor, which shall not change the obligations of the parties under this Addendum as Company will remain a Processor in any such event. 

2.2 Company shall process Customer Personal Data on the documented instructions of Customer, unless otherwise required by an Applicable Law to which Company is subject. In which case, Company shall notify Customer if, in its opinion, any instruction infringes the GDPR or other Union or Member State data protection provisions, unless that law prohibits such notification. Such notification will not constitute a general obligation on the part of Company to monitor or interpret the laws applicable to Customer, and such notification will not constitute legal advice to Customer. 

2.3 Customer warrants and represents that it is and will, at all relevant times, remain duly and effectively authorised to give the instruction set out in Section ‎2.2.

2.4 Customer warrants that it has all the necessary rights to provide the Personal Data to Company for the Processing to be performed in relation to the Services, and that one or more lawful bases set forth in the Data Protection Legislation support the lawfulness of the Processing. To the extent required by the Data Protection Legislation, Customer is responsible for ensuring that all necessary privacy notices are provided to Data Subjects, and unless another legal bases set forth in the Data Protection Legislation supports the lawfulness of the processing, that any necessary Data subject consents to the Processing are obtained, and for ensuring that a record of such consent is maintained. Should such consent be revoked by a Data Subject, Customer is responsible for communicating the fact of such revocation to Company, and Company will act pursuant to Customer’s instructions as seems appropriate. 

2.5 Annex 1 to this Addendum sets out certain information as required by Article 28(3) of the GDPR according to, Personal Data may be processed by Company. Customer warrants it is an accurate reflection of the Processing activities pursuant to this Addendum and the Agreement. The nature of the Processing operations will depend on the scope of the Services and the nature of the Personal Data that Customer provides in its sole discretion, in a manner by which Company finds appropriate to provide the required Services.

3. Confidentiality

3.1 Without prejudice to any existing contractual arrangements between the parties, Company shall ensure that any person that it authorises to Process the Personal Data on its behalf, shall be subject to a duty of confidentiality that shall survive the termination of their employment and/or contractual relationship.

4. Security

4.1 Company shall implement appropriate technical and organizational measures to ensure a level of security of the Processing of Personal Data appropriate to the risk of Customer Personal Data. Such measures may be updated by Company from time to time, provided that such updates shall not materially decrease the protection of Personal Data for Data Subjects. 

4.2 Customer acknowledges that the security requirements are constantly changing and that effective security requires frequent evaluation and regular improvements of outdated security measures. Customer will therefore evaluate the measures as implemented in accordance with section 4 on an on-going basis in order to maintain compliance with the requirements set forth in this section. The parties will negotiate in good faith, the cost, if any, to implement changes required by specific updated security requirements set forth in Data Protection Legislation or by data protection authorities of competent jurisdiction.

5. Sub-processing

5.1 Customer authorises Company to appoint (and permit each Sub-processor to appoint) Sub-processors in accordance with Annex 2 to this Addendum and any restrictions in the Agreement, if required to do so to provide the Services.
5.2 Company shall inform the Customer as soon as reasonably practicable of any intended changes concerning the addition or replacement of any of the Authorised Sub-Processors that will Process any Customer Personal Data (“New Sub-Processor“). If, within 14 calendar days of receipt of that notice, Customer notifies Company in writing of any objections made on reasonable grounds, to the proposed appointment of a New Sub-Processor, the parties will endeavour to agree (acting reasonably), without undue delay, the commercially reasonable steps to be taken to ensure that the new Sub-processor is compliant with the requirements of this Addendum.
5.3 In the absence of a resolution, Company will make commercially reasonable efforts to provide Customer with the same level of Service described in the Agreement, without using the objected Sub-Processor to process Customer Personal Data.
5.4 Where the Customer reasonably argues, that the risks involved with the sub-processing activities are still unacceptable, in the context of the requirements of the GDPR and in relation to the appropriate steps, within the requisite time frame, the parties shall promptly seek to resolve the issues. Where the parties are unable to resolve the issues within such time frame, Customer’s sole remedy will be to terminate the Agreement. 
5.5 With respect to each Sub-processors, Company shall ensure that the sub-processor is bound by data protection obligations compatible with those of the Data Processor under this Addendum.

6. Data Subject Rights

6.1 Customer shall comply with requests received from Data Subjects to exercise their data protection rights under Data Protection Legislation. 
6.2 When Customer is unable to perform according to section 6.1, and therefore requires Company’s assistance, while taking into account the nature of the Processing, Company shall assist Customer, upon Customer’s request and at the Customer’s cost, by using appropriate technical and organisational measures, insofar as this is possible, to comply with requests to exercise Data Subject rights, under the Data Protection Legislation.

7. Personal Data Breach

7.1 When Company becomes aware of an incident that has a material impact on the Processing of Personal Data that is the subject to the Agreement, it shall notify Customer about the incident without undue delay and no later than 24 hours after becoming aware of the Personal Data Breach. Company shall cooperate with Customer and follow Customer’s instructions with regard to such incidents, to enable Customer to perform an investigation into the incident, formulate a correct response and take suitable further steps in respect to the incident. 

7.2 The term “incident” used in section 7.1 includes but not limited to:
7.2. 1 A complaint or request with respect to the exercise of a Data Subject’s rights under the Data Protection Legislation.
7.2.2 An investigation into or seizure of the Personal Data by government officials, or a specific indication that such an investigation or seizure is imminent. 
7.2.3 Any unauthorized or accidental access, Processing, deletion, loss or any form of unlawful Processing of Personal Data. 
7.2.4 Any breach of the security and/or confidentiality as set out in sections 3 and 4 to this Addendum, leading to the unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data, or any indication of such breach having taken place or being about to take place. 
7.2.5 Where in the opinion of Company, implementing an instruction received from Customer, would violate applicable laws to which Customer or COMPANY are subject.

7.3 Where the incident is reasonably likely to require a data breach notification by Customer under the Data Protection Legislation, Company will assist Customer with the notification process. 

7.4 Company shall, at Customer’s cost, cooperate with Customer and take the reasonable commercial steps which shall reasonably be instructed by Customer, to assist in the investigation and mitigation of every occurring Personal Data Breach.

8. Deletion or Return of Customer Personal Data

8.1 Subject to section ‎8.3, Customer may in its discretion by written notice to Company within 30  calendar days of the cessation date, require Company to (a) return a complete copy of all Customer Personal Data to the Customer; and (b) delete all other copies of Customer Personal Data Processed by Company. Company shall comply with any such written request within 60 calendar days of the cessation date.

8.2 Company shall notify the relevant Sub-processors, processing Personal Data on its behalf, of the termination of the Data Processing Addendum.

8.3 Company may retain Customer Personal Data to the extent and for such period as required by Applicable Laws.

9. Audit Rights

9.1 Subject to section ‎9.2 and ‎9.3, Company shall make available to Customer upon a reasonable request, information which is reasonably necessary to demonstrate compliance with this Addendum. 

9.2 Where applicable, if Customer is not otherwise satisfied by its audit rights pursuant to the Agreement, Company shall, at the Customer’s costs, allow for audits, including inspections, by an auditor mandated by Customer (subject to section ‎9.3 where auditor shall be subject to written confidentiality obligations in relation to such information) in relation to the Processing of Customer Personal Data by Company, provided that:
 9.2.1 Customer shall give Company a reasonable notice of any audit or inspection to be conducted; and
 9.2.2 Customer shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) to minimize disruption to Company’s business, in the course of such audit or inspection, while such audits or inspections shall be conducted during normal working hours.

9.3 Company may object to an auditor mandated by Customer if the auditor is, in Company’s opinion, not suitably qualified or independent, a competitor of Company, or otherwise manifestly unsuitable. In the event of such an objection, Customer shall appoint another auditor or conduct the audit itself.

10. General Terms

6.1 Transfers

10.1 Information may be transferred to third party companies and individuals to facilitate Company’s services, who are located in a country outside of the EEA. To the extent that Company or its Sub-processors Processes Customer Personal Data in countries outside of the EEA that do not provide an adequate level of data protection, as determined by the European Commission or other adequate authority, the applicable model of the SCC shall apply and shall be incorporated herein upon execution of this Agreement by the parties or Company shall otherwise ensure that the continuity of protection of Personal Data shall be maintained for any respective onward transfers. With respect to each such data transfer, Company shall implement appropriate technical and organizational measures to ensure a level of security, appropriate to the risk, while taking into account the state of the art, costs of implementation and the nature, scope, context and purposes of processing as well as the likelihood of a risk to the rights and freedoms of natural persons. 

10.2To the extent that Company or Customer are relying on a specific statutory mechanism to normalize international data transfers and that mechanism is subsequently modified, revoked, or held in a court of a competent jurisdiction to be invalid, Company and Customer agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer. 

6.2 Liability and Indemnity

10.3 Customer shall indemnify Company and will hold Company harmless against all claims, losses, damages and expenses incurred by Company arising out of a breach of this Data Processing Addendum and/or the Data Protection Legislation by Customer.

6.3 Order of Precedence

10.4 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. 

6.4 Changes in Data Protection Legislation

10.5 If any variation is required to this Addendum as a result of a change in Data Protection Legislation, then either party may provide written notice to the other party of that change of law. The parties shall discuss the change in Data Protection Legislation and negotiate in good faith with a view to agreeing on any necessary variations to this Addendum to address such changes, including any resulting charges.

6.5 Governing Law and Jurisdiction

10.6 This Data Processing Addendum is governed by the laws of Israel. Any disputes arising from or in connection with this Data Processing Addendum, shall be brought exclusively before the competent court of Tel Aviv – Jaffa.

6.6 Severance

10.7 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 (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

7.

7.1.1 ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA

7.1.2 This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.

7.1.3 Subject Matter and Duration of the Processing of Customer Personal Data

7.1.4 The subject matter and duration of the Processing of the Customer Personal Data are set out in the Agreement and this Addendum.

7.1.5

7.1.6 The nature and purpose of the Processing of Customer Personal Data

Company provides virtual assistants software, which uses conversational AI to work alongside sales and marketing teams. Company allows its customers to convert leads and increase lead qualification to schedule more meetings using automated, personalized and contextual responses and follow-ups for their end-users. In the course of the provision of its Services, Company may receive access to and process Customer Personal Data to provide the Services in accordance with the Agreement and this Addendum.

7.1.7

7.1.8 No special category data is processed by Company.

7.1.9 The Categories of Data Subject to whom the Customer Personal Data Relates

7.1.10

7.1.11 The categories of data subjects are chosen by Customer. 

7.1.12 The Obligations and Rights of Customer

7.1.13 The obligations and rights of Customer are set out in the Agreement and this Addendum. 

ANNEX 2: COMPANY’S SUB-PROCESSORS

7.1.14

7.1.15 Name of Sub-Processor

7.1.16 Type of Services Provided

7.1.17 Location

7.1.18 AWS

7.1.19 Hosting

7.1.20 USA

7.1.21 GCP

7.1.22 Hosting

7.1.23 USA

7.1.24MongoDB Atlas

7.1.25 Database

7.1.26 USA