Standard Pyn Data Processing Agreement

D.P.A.

Version effective date: 25 Nov 2021



This Data Processing Agreement (“Agreement”) forms a part of the Pyn General Terms of Service, unless the Company (as defined below) has entered into a superseding written master subscription agreement with Pyn, in which case, it forms a part of such written agreement (in either case, the “Principal Agreement”), between

(the “Company”)

and

PON HQ Pty Ltd, of 2 Hennings Lane, Newtown, NSW 2042, Australia

(the “Processor" or "Pyn")

together as (the “Parties”)

Whereas

The Company acts as a Controller (as defined below) of Company Personal Data (as defined below).

The Company wishes to subcontract certain of the Services (as defined below), which imply the processing of personal data, to the Processor.

The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with (i) the GDPR (as defined below) and (ii) the UK GDPR (as defined below).

The Parties wish to lay down their rights and obligations.

1. Definitions and Interpretation

Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

“Agreement” means this Data Processing Agreement and all Schedules;

“Company Personal Data” means any Personal Data Processed by a Contracted Processor pursuant to or in connection with the Principal Agreement;

“Contracted Processor” means the Processor and/or a Subprocessor, as the context requires;

“Data Protection Laws” means EU Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

“EEA” means the European Economic Area;

“EU Data Protection Laws” means the GDPR and laws implementing or supplementing the GDPR;

"EU Restricted Transfer" means:

a transfer of Company Personal Data from the Company to the Processor; or

an onward transfer of Company Personal Data from a Contracted Processor to (or between two establishments of) a Contracted Processor,

where such transfer would at the time of the transfer be prohibited by EU Data Protection Laws in the absence of the EU Standard Contractual Clauses to be established under section 11.1 below;

"EU Standard Contractual Clauses" means the Standard Contractual Clauses forming part of Decision 2021/914/EC (as amended or replaced from time to time), including their appendices and with the relevant Modules and Options set out under section 11.1 below incorporated;

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

“Services” means the Employee Communication Services the Company provides;

“Subprocessor” means any third party appointed by or on behalf of the Processor to process Company Personal Data;

"TOMS Schedule" means Schedule 3 (Technical and Organisational Measures) of this Agreement which describes the technical and organisational measures of the Processor;

"UK Data Protection Laws" means the UK GDPR and laws implementing or supplementing the UK GDPR, including the Data Protection Act 2018;

“UK GDPR” means the United Kingdom's version of the GDPR which is part of United Kingdom's law by virtue of the European Union (Withdrawal) Act 2018;

"UK Restricted Transfer" means:

a transfer of Company Personal Data from the Company to the Processor; or

an onward transfer of Company Personal Data from a Contracted Processor to (or between two establishments of) a Contracted Processor,

where such transfer would at the time of the transfer be prohibited by the UK GDPR in the absence of the relevant UK Standard Contractual Clauses to be established under section 11.2 below; and

"UK Standard Contractual Clauses" means the Standard Contractual Clauses (processors) set out in Decision 2010/87/EC, including its appendices, and as amended or replaced from time to time by a competent authority or in accordance with the UK GDPR, including as contemplated under section 11.2 below.

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

2. Processing of Company Personal Data

2.1 Processing of Personal Data.

As the Company’s Processor, Pyn shall, aside from where required by applicable law, only Process Company Personal Data for the following purposes:

Processing in accordance with the Principal Agreement and applicable Service Order and Pyn General Terms;

Processing initiated by Authorized Users in their use of the Services; and

Processing to comply with other written instructions provided by the Company (e.g., via email or support tickets) that are consistent with the terms of the Principal Agreement and provided such instructions do not infringe Data Protection Laws (in which case Pyn will notify the Company of such infringing instruction). Pyn acts on behalf of and on the written instructions of the Company in carrying out the Services.

2.2

a) Each Party shall comply with all applicable Data Protection Laws in the Processing of Company Personal Data.

b) The Processor shall not Process Company Personal Data other than on the Company’s documented instructions.

2.3 The Company instructs the Processor to process Company Personal Data and the details of the Processing is set out below:

Nature of the processing:

Such services as are described in the Principal Agreement.

The subject matter and duration of the Processing

Subject matter: The subject matter is the processing of Company Personal Data in connection with the performance of the Principal Agreement.

Duration: The duration of the data processing under this Data Processing Agreement is subject to the provisions of the Principal Agreement.

The categories of Company Personal Data to be Processed

Personally identifiable information (e.g. name, surname, email)

Statistical or other usage data observed when interacting with Pyn communications (e.g. via analytics, services etc.)

Work history (e.g. promotions, relocations)

Billing, invoicing and payment data

The Company may submit other Personal Data to Pyn through the Services, the extent of which is determined and controlled by the Company in compliance with applicable Data Protection Law and which may concern the following special categories (if any) such as racial or ethnic origin or sexual orientation.

The categories of data subject to whom Company Personal Data relate

employees, associates, staff members

internal consultants; and

authorised agents

3. Processor Personnel

The Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

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, the Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk to individuals that may result from a Personal Data Breach, including the measures set out in the TOMs Schedule and all measures referred to in Article 32(1) of the GDPR, and these measures shall not be amended without the Company's approval where such amendments would materially reduce such protection of Company Personal Data.

5. Subprocessing

5.1 The Company hereby consents to the Processor appointing the Subprocessors listed at https://www.pynhq.com/subprocessors/ and further grants the Processor general authorisation to appoint additional Subprocessors or otherwise make changes to this list, provided that the Processor shall update the applicable website (and provide the Company with a mechanism to obtain notice of such updates, which the Company can subscribe for at https://mailchi.mp/pynhq/subprocessors), at least 10 days in advance of making any such change. If the Company reasonably objects to the appointment or change, the Processor shall work with the Company in good faith to make available a commercially reasonable change in the provision of the services provided by the Processor which avoids the use of that proposed Subprocessor. Where such a change cannot be made within 90 days from the Processor’s receipt of the Company's objection, the Processor shall not appoint or disclose any Company Personal Data to that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Company.

5.2 The Processor shall:

a) ensure that there is a written agreement in place with each Subprocessor which contains terms which are substantially similar to the terms set out in this Agreement;

b) upon written request, provide details of additional Subprocessors to the Company; and

c) remain liable to the Company for the performance of any obligations carried out by the Subprocessors in relation to the Company Personal Data.

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, the Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company's obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 The Processor shall:

promptly notify the Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

ensure that it does not respond to that request except on the documented instructions of Company or as required by applicable laws to which the Processor is subject, in which case the Processor shall to the extent permitted by applicable laws inform the Company of that legal requirement before it responds to the request.

7. Personal Data Breach

7.1 The Processor shall notify the Company without undue delay in writing upon the Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing the Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 The Processor shall co-operate with the Company and take reasonable commercial steps as are directed by the Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment

The Processor shall provide reasonable technical and organisational assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR/UK GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Processor.

9. Deletion or return of Company Personal Data

Aside from where required by applicable law, the Processor shall promptly upon termination or expiry of this Agreement and, at any other time, on request by the Company return to the Company or delete all Company Personal Data in its power, possession or control, and confirm to the Company that such deletion has taken place.

10. Audit rights

10.1 Subject to this section 10, the Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Processor.

10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 EU Restricted Transfers

a) With respect to any EU Restricted Transfers between the Parties, the Company and the Processor hereby enter into the EU Standard Contractual Clauses incorporating: (i) the general clauses (Clauses 1-6); (ii) Module Two (Transfer Controller to Processor) in accordance with Part 1 of Schedule 1; (iii) the relevant Options set out in Part 1 of Schedule 1; and (iv) with the Annexes populated as set out below:

Annex I of the EU Standard Contractual Clauses shall be pre-populated with the details set out in Part 2 of Schedule 1 to this Agreement; and

Annex II of the EU Standard Contractual Clauses shall be pre-populated with the details set out in the TOMs Schedule.

b) For the purposes of section 11.1a), the EU Standard Contractual Clauses shall come into effect upon commencement of an EU Restricted Transfer.

c) Prior to the commencement of any EU Restricted Transfer from the Processor to or from a Subprocessor, the Processor shall enter into the EU Standard Contractual Clauses with such Subprocessor, incorporating the general Clauses (Clauses 1-6) and Module 3 (Transfer Processor to Processor).

11.2. UK Restricted Transfers

a) With respect to any UK Restricted Transfers, Company (as "data exporter") and the Processor on its own behalf and as agent for each Contracted Processor (each as "data importer") hereby enter into the UK Standard Contractual Clauses in respect of any UK Restricted Transfer from the Company to the Processor and the Appendices to the UK Standard Contractual Clauses shall be completed as follows:

Appendix 1 shall be pre-populated with the details set out in Schedule 2 to this Agreement; and

Appendix 2 shall be pre-populated with the details set out in the TOMs Schedule.

b) Prior to the commencement of any UK Restricted Transfer to or from a Subprocessor, the Processor shall ensure that its entry in the UK Standard Contractual Clauses under section 11.2(a) above as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.

c) For the purposes of this section 11.2, the UK Standard Contractual Clauses shall come into effect upon commencement of a UK Restricted Transfer.

12. General Terms

12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

(a) disclosure is required by law;

(b) the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

13. Governing Law and Jurisdiction

Without prejudice to the EU Standard Contractual Clauses and the UK Standard Contractual Clauses, this Agreement is governed by the laws Australia and is subject to the exclusive jurisdiction of the courts of Australia.

Schedule 1: Content of the EU Standard Contractual Clauses

Part 1: Selected Modules and Options of the EU Standard Contractual Clauses

For the purposes of section 11.1 of the Agreement, the Parties agree that the following Modules and Options of the EU Standard Contractual Clauses shall be deemed to be incorporated:

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Part 2: Content of Annex I of the EU Standard Contractual Clauses

List of Parties

Data Exporter:

Name: as set out in the Agreement.

Address: as set out in the Agreement.

Contact person's name, position and contact details: as set out in the Principal Agreement.

Activities relevant to the data transferred under these Clauses: as set out in the Agreement.

Role (controller/processor): controller and/or processor, as applicable.

Data importer(s):

Name: as set out in the Agreement.

Address: as set out in the Agreement.

Contact person's name, position and contact details: as set out in the Principal Agreement.

Activities relevant to the data transferred under these Clauses: as set out in the Agreement.

Role (controller/processor): controller and/or processor, as applicable.

Description of Transfer

Categories of data subjects whose personal data is transferred: as per the categories of data subject to whom the personal data relates set out in section 2 of the Agreement.

Categories of personal data transferred: as per the types of personal data to be processed set out in section 2 of the Agreement.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: as per the special categories of personal data set out in section 2 of the Agreement, and as per the Agreement including without limitation and where relevant the TOMs Schedule.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): continuous unless otherwise specified in the Agreement.

Nature of the processing: as per the nature of the processing set out in section 2 of the Agreement.

Purpose(s) of the data transfer and further processing: as per the purpose set out in section 2 of the Agreement.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: as per section 9 of the Agreement.

For transfers to (sub-) processors, also specify the subject matter, nature and duration of the processing: as per the subject matter, nature and duration set out in section 2 of the Agreement.

Competent Supervisory Authority

Identify the competent supervisory authority/ies in accordance with Clause 13: The competent supervisory authority in the EU Member State in which the data exporter is established and, in the event that the data exporter is not established in an EU Member State, the data protection authority of Ireland.

Schedule 2: Content of the UK Standard Contractual Clauses

Data Exporter: The data exporter is (please specify briefly activities relevant to the transfer): as set out in the Agreement.

Data Importer: The data importer is (please specify briefly activities relevant to the transfer): as set out in the Agreement.

Data Subjects: The personal data transferred concern the following categories of data subject (please specify): as per the categories of data subject to whom the personal data relates set out in section 2 of the Agreement.

Categories of Personal Data: The personal data transferred concern the following categories of data: as per the types of personal data to be processed set out in section 2 of the Agreement.

Special Categories of data (if appropriate): The personal data transferred concern the following special categories of data (please specify): as per the special categories of personal data set out in section 2 of the Agreement.

Processing operations: The personal data transferred will be subject to the following basic processing activities (please specify): as set out in the Agreement.

Schedule 3: Technical and Organisational Measures

The Technical and Organisational Measures are available at the following web address (as updated from time to time in accordance with section 4 of the Agreement):

https://pynhq.notion.site/Pyn-Security-Overview-2a45138724cf45f8b6f8746b92d38fc0