data processing addendum

1. Application of this addendum

1. 1.1This Data Processing Addendum, including its Schedules, (Addendum) applies to the Processing (as defined below) of Visitor or Employee Data (as defined in the SwipedOn Terms of Service).
2. 1.2This Addendum forms part of the SwipedOn Terms of Service (together, the Terms) between us and you (as defined in the Terms) and sets out the parties’ agreement in relation to the processing of Visitor or Employee Data in accordance with the requirements of Applicable Data Protection Laws.
3. 1.3We are located in New Zealand, which the European Commission has determined provides adequate protection within the meaning of Article 45 of the GDPR. However, to provide you with additional assurance as to our data protection commitments, this Addendum also includes EU Standard Contractual Clauses (as defined below), which are pre-signed by us. If you would like to opt in to the EU Standard Contractual Clauses, please complete the necessary details, countersign the EU Standard Contractual Clauses, and return a counter-signed copy to us at privacy@swipedon.com
4. 1.4Except as varied in this Addendum (including the EU Standard Contractual Clauses, if applicable) all terms and conditions set out in the Terms continue to apply.
5. 1.5For the purposes of the CCPA, we certify that we understand and will comply with our obligations under this Addendum.

2. Interpretation

1. 2.1Unless the context requires otherwise:
   1. a. capitalised terms used, but not defined, in this Addendum will have the meanings given to them in the Applicable Data Protection Laws (or, if not defined in the Applicable Data Protection Laws, the Terms);
   2. b. the rules of interpretation set out in the Terms apply to this Addendum; and
   3. c. references to clauses are references to the clauses in this Addendum.
2. 2.2In this Addendum:
3. Applicable Data Protection Laws means any applicable data protection or privacy laws of any country, including, if applicable, EU/UK Data Protection Laws, the CCPA and the NZ Privacy Act
4. CCPA means the California Consumer Privacy Act, Cal. Civ. Code §1798.100 et seq., and its implementing regulations
5. Data Subject has the meaning given in EU/UK Data Protection Laws and includes an individual as defined in the NZ Privacy Act, a consumer as defined in the CCPA and any other identified or identifiable natural person to whom any information relates
6. EU/UK Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, its member states and the United Kingdom, that apply to the Processing of Visitor or Employee Data, including (where applicable) the GDPR and the equivalent laws of the United Kingdom
7. EU Standard Contractual Clauses means the standard contractual clauses set out in Schedule 3, as may be amended under clause 12.1
8. GDPR means the European Union General Data Protection Regulation 2016/679
9. Instruction means the instructions set out in clause 3.4 or agreed under clause 3.5
10. NZ Privacy Act means the New Zealand Privacy Act 2020
11. Processing means any operation or set of operations which is performed upon Visitor or Employee Data, whether or not by automated means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Process has a consistent meaning
12. Sub-Processor means any person appointed by us or on our behalf to Process Visitor or Employee Data on your behalf in connection with the Terms.

1. 2.3If there is any conflict between any of the following, they will have precedence in the descending order of priority set out below:
   1. a. the EU Standard Contractual Clauses;
   2. b. this Addendum; and
   3. c. the Terms.

3. Processing of visitor or employee data

1. 3.1With respect to the Processing of Visitor or Employee Data under the Terms:
   1. a. for the purposes of EU/UK Data Protection Laws:
      1. i. you act as the Data Controller; and
      2. ii. we act as the Data Processor;
   2. b. we are acting as your agent for the purposes of the NZ Privacy Act;
   3. c. we are acting as the service provider (and not a third party) for the purposes of the CCPA; and
   4. d. subject to clause 6, we may engage the Sub-Processors listed in Schedule 2.
2. 3.2We will comply with all Applicable Data Protection Laws that apply to our Processing of Visitor or Employee Data on your behalf, including, if applicable, all EU/UK Data Protection Laws that apply to Data Processors.
3. 3.3You must, when using the Service, comply with all Applicable Data Protection Laws that apply to your Processing of Visitor or Employee Data, including, if applicable, all EU/UK Data Protection Laws that apply to Data Controllers.
4. 3.4You instruct us to Process Visitor or Employee Data and in particular, subject to clause 6, transfer Visitor or Employee Data to any country or territory:
   1. a. as reasonably necessary to provide the Service in accordance with the Terms;
   2. b. as initiated through the use of the Service by you, your Personnel and other end users you allow to use the Service; and
   3. c. to comply with any further instruction from you (including by email or through our support channels) that is consistent with the Terms and this Addendum.
5. 3.5This Addendum and the Terms are your complete and final instructions for the Processing of Visitor or Employee Data as at the time this Addendum takes effect. Any additional or alternate instructions must be agreed between us and you separately in writing.
6. 3.6We will not Process Visitor or Employee Data other than on your Instructions unless required by any law to which we are subject, in which case we will to the extent permitted by applicable law inform you of that legal requirement before we Process that Visitor or Employee Data.
7. 3.7As required by Article 28(3) of the GDPR, if applicable, and, if applicable, equivalent requirements of other Applicable Data Protection Laws, the nature and purpose of the Processing, the types of Visitor or Employee Data and categories of Data Subjects Processed under this Addendum are set out in Schedule 1. We may amend Schedule 1 from time to time on written notice to you as we reasonably consider necessary to meet the requirements of Applicable Data Protection Laws (including, if applicable, the GDPR).
8. 3.8The duration of Processing is limited to the duration of the Terms and the 6 month period following termination of the Terms. Our obligations in relation to Processing will continue until the Visitor or Employee Data has been properly deleted or returned to you in accordance with clause 10 of this Addendum.
9. 3.9You are solely responsible for ensuring that your Instructions comply with Applicable Data Protection Laws. It is also your responsibility to enter into data processing agreements with other relevant Data Controllers in order to allow us and our Sub-Processors to Process Visitor or Employee Data in accordance with this Addendum.
10. 3.10If, in our reasonable opinion, an Instruction infringes Applicable Data Protection Laws, we will notify you as soon as reasonably practicable.
11. 3.11We will not:
    1. a. sell (as that term is defined in the CCPA) Visitor or Employee Data;
    2. b. retain, use, or disclose Visitor or Employee Data for any purpose other than the specific business purpose of providing the Service, including retaining, using, or disclosing such information for a commercial purpose other than providing the Service; and
    3. c. retain, use, or disclose such Visitor or Employee Data outside of our direct business relationship with you.

4. Data subject requests

1. 4.1To the extent permitted by law, we will notify you promptly if we receive a request from a Data Subject to exercise the Data Subject’s rights under Applicable Data Protection Laws relating to any Visitor or Employee Data (Data Subject Request).
2. 4.2Taking into account the nature of the Processing, we will assist you by implementing appropriate technical and organisational measures, to the extent possible, to fulfil your obligation to respond to a Data Subject Request under Applicable Data Protection Laws.
3. 4.3To the extent you do not have the ability to address a Data Subject Request, we will, on your written request, provide reasonable assistance in accordance with Applicable Data Protection Laws to facilitate that Data Subject Request. You will reimburse us for the costs arising from this assistance.
4. 4.4We will not respond to a Data Subject Request except on your written request or if required by applicable law.

5. Our personnel

1. 5.1We will:
   1. a. take reasonable steps to ensure the reliability of any of our Personnel engaged in the Processing of Visitor or Employee Data;
   2. b. ensure that access to Visitor or Employee Data is limited to our Personnel who require that access as strictly necessary for the purposes of exercising our rights and performing our obligations under the Terms;
   3. c. ensure that our Personnel engaged in Processing Visitor or Employee Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and
   4. d. ensure that our Personnel engaged in Processing Visitor or Employee Data are informed of the confidential nature of the Visitor or Employee Data and receive appropriate training on their responsibilities.
2. 5.2We have appointed a data protection officer who can be contacted at privacy@swipedon.com

6. Sub-processors

1. 6.1You acknowledge and agree that we may engage third party Sub-Processors in connection with the provision of the Service.
2. 6.2We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing data protection obligations which offer at least the same level of protection for Visitor or Employee Data as set out in this Addendum and that meet the requirements of Article 28(3) of the GDPR and/or equivalent requirements of other Applicable Data Protection Laws, as applicable to the nature of the services provided by that Sub-Processor.
3. 6.3You may request copies of our written agreements with Sub-Processors (which may be redacted to remove confidential information not relevant to this Addendum).
4. 6.4A list of current Sub-Processors for the Services as at 20 July 2023 is set out in Schedule 2. We may update the list of Sub-Processors from time to time and, subject to clause 6.5, we will give prior written notice of any new Sub-Processor [(Change Notice)].
5. 6.5We may engage Sub-Processors as needed to serve as an Emergency Replacement to maintain and support the Services. Emergency Replacement means a sudden replacement of a Sub-Processor where a change is outside our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as reasonably practicable.
6. 6.6You may object to any new Sub-Processor on reasonable grounds by notifying us within 10 days of receipt of a Change Notice. Your notice of objection to any new Sub-Processor must explain the reasonable grounds for your objection. The parties must discuss your concerns about the new Sub-Processor in good faith with a view to resolve the objection to the use of the new Sub- Processor in a commercially reasonable manner. If it is not possible to resolve the objection, and we do not revoke the Change Notice before the date the Change Notice takes effect, you may, despite anything to the contrary in the Terms, terminate the applicable Service under the Terms that cannot be provided to you without that new Sub-Processor. If you do not terminate the relevant Service under the Terms in accordance with this clause, you are deemed to have agreed to the new Sub-Processor.
7. 6.7We are liable for the acts and omissions of our Sub-Processors to the same extent we would be liable if performing the services of each Sub-Processor directly under the terms of this Addendum, except as otherwise set out in this Addendum.

7. Security

1. We will maintain technical and organisational measures to protect the confidentiality, integrity and security (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Data) of Visitor or Employee Data, and to manage data security incidents affecting Visitor or Employee Data, in accordance with Annex II of the EU Standard Contractual Clauses.

8. Security breach management

1. 8.1We will comply with all applicable laws requiring notification to you of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Visitor or Employee Data Processed by us or our Sub-Processors of which we become aware (Breach Incident).
2. 8.2We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, cooperate with you in good faith and provide any assistance reasonably necessary for you to comply with your obligations under Applicable Data Protection Laws with respect to a Breach Incident, including any obligations you have under Applicable Data Protection Laws to report, notify or investigate a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.

9. Audit and compliance

1. Upon your written request, we will, at your cost, submit to your audits and inspections, and provide you all information necessary, to demonstrate that both you and we are complying with our respective obligations under Applicable Data Protection Laws (including our respective obligations under Article 28 of the GDPR).

10. Data protection impact compliance

1. Upon your written request, we will provide you with reasonable assistance needed to fulfil your obligations under Applicable Data Protection Laws to carry out a data protection impact assessment relating to your use of the Service, to the extent you do not otherwise have access to the relevant information.

11. Return and deletion of visitor or employee data

1. 11.1Subject to clauses 11.2 and 11.3, following termination of the Terms we will delete all Visitor or Employee Data within 6 months from termination of the Terms.
2. 11.2Subject to clause 11.3, you may submit a written request to us within 10 working days of the termination of the Terms requiring us, within 20 working days of your written request, to:
   1. a. return a complete copy of all Visitor or Employee Data by secure file transfer in a common format; and
   2. b. delete all other copies of Visitor or Employee Data Processed by us or any Sub-Processor.
3. 11.3We, or each Sub-Processor, may retain Visitor or Employee Data to the extent that it is required by applicable laws, provided that we ensure the confidentiality of all such Visitor or Employee Data and ensure that such Visitor or Employee Data is only processed as necessary for the purposes required under applicable laws requiring its Processing and for no other purpose.
4. 11.4With the exception of visitor photos and signatures (which must, where deletion is required under this clause 11, be completely and permanently deleted), you agree that we may satisfy any requirement to delete Visitor or Employee Data under this clause 11 by anonymising the Visitor or Employee Data so that it is no longer Personal Data.

12. Changes in data protection laws

1. 12.1We may on prior written notice to you from time to time, make any variations to this Addendum (including to the EU Standard Contractual Clauses), which we consider (acting reasonably) are required as a result of any change in, or decision of a competent authority under, Applicable Data Protection Laws, to allow transfers and Processing of Visitor or Employee Data to continue without breach of Applicable Data Protection Laws. You must do any further thing and sign any document required to give effect to this clause 12.1.
2. 12.2If you object to any variation under clause 12.1 on reasonable grounds, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided your notice of termination is received by us before the effective date of our notice. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the variation.

13. Limitation of liability

1. The liability of each party to the other party under or in connection with this Addendum is subject to the limitations and exclusions set out in the Terms, and any reference in the Terms to the liability of a party means the aggregate liability of that party under the Terms and this Addendum together.

14. General

1. If any provision of this Addendum is, or becomes unenforceable, illegal or invalid for any reason, the relevant provision is deemed to be varied to the extent necessary to remedy the unenforceability, illegality or invalidity. If variation is not possible, the provision must be treated as severed from this Addendum without affecting any other provisions of this Addendum.

Schedule 1

Details of processing

Nature and Purpose of Processing

Duration of Processing

Subject to clause 11 of this Addendum, we will Process Visitor or Employee Data for the duration of the Terms and for a period of not more than 6 months after termination of the Terms, unless otherwise agreed upon in writing.

Categories of Data Subjects

You may submit Visitor or Employee Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, Visitor or Employee Data relating to the following categories of data subjects:

• your Personnel who are natural persons
• visitors to your premises, including customers, suppliers, business partners, contractors and your Personnel’s personal visitors (including family and friends) who are natural persons

Type of Visitor or Employee Data

You may submit Visitor or Employee Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, the following categories of personal data:

• first and last name
• title
• employer
• contact information (company, email, phone, physical business address)
• vehicle registration
• photographs
• time and date of visit
• person visiting