DATA PROCESSING AGREEMENT

Effective Date:
Last Updated on:

This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between You and Us. You and Us are hereinafter referred to individually as a “Party” and collectively as the “Parties”). You are required to read this DPA carefully as this DPA forms an integral part of the Terms of Service available at [●] (the “Terms'') and is applicable where We are the Processors of Your Personal Data forming part of the Customer Data. 


1. Definitions

Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms. In this DPA, the following terms shall have the following meanings:
Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including the including the UK Data Protection Act, 2018 and the UK GDPR where the Customer is established in the United Kingdom (“UK”); the GDPR and any applicable national laws made under it where Customer is established in the European Economic Area (“EEA”) or European Union, and their member states; and the Swiss Federal Act on Data Protection (as may be amended or superseded) where Customer is established in Switzerland; and the California Consumer Privacy Act of 2018 (“CCPA”).
GDPR” shall mean the 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).
UK GDPR” shall mean the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018
Personal Data” shall mean any information relating to an identified or identifiable natural person as defined by the General Data Protection Regulation of the European Union ("GDPR" EC-2016/679) that is Processed by the Processor as part of providing the services to You.
SCCs ”  means the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en (as amended or updated from time to time). For the avoidance of doubt, Modules 2 and 3 of the SCCs shall apply as set out in Clause 12.
Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation.  It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws “Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.


2. Scope and Responsibilities

2.1. This DPA applies to Processing of Personal Data forming a part of the Customer Data.

2.2 We shall Process Personal Data only on Your behalf and at all times only in accordance with this DPA. For the avoidance of doubt, You may either be the Controller or Processor of the Personal Data. Where You are the Controller, We are the Processor and where You are the Processor, We are the sub-processor of Personal Data.  

2.3. Within the scope of the Terms, each party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.


3. Term and Termination

3.1. This DPA becomes effective upon You subscribing to the services by agreeing to the Terms. It shall continue to be in full force and effect as long as We are Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter. 

3.2. Where amendments are required to ensure compliance of this DPA with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either party may terminate the Terms in accordance with the termination procedure contained therein.


4. Processing Instructions

4.1. We will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to Us. The Parties agree that You may communicate any change in your initial instructions to Us by way of amendment to this DPA, which shall be signed by the Parties.

4.2. For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties and, where applicable, shall be subject to the contract change procedure under the respective agreement.

4.3.
We shall without undue delay inform You in writing if, in Our opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing. 


5. Processor Personnel

We will restrict Our personnel from Processing Personal Data without authorization. We will impose appropriate contractual obligations upon Our personnel, including relevant obligations regarding confidentiality, data protection and data security. 

6. Disclosure to Third Parties; Data Subjects Rights 

6.1. We will not disclose Personal Data to any government agency, court, or law enforcement except with Your written consent or as necessary to comply with applicable mandatory laws. If We are obliged to disclose Personal Data to a law enforcement agency, We agree to give You reasonable notice of the access request prior to granting such access, to allow You to seek a protective order or other appropriate remedy. If such notice is legally prohibited, We will take reasonable measures to protect the Personal Data from undue disclosure as if it were Our own confidential information being requested and shall inform You promptly as soon as possible if and when such legal prohibition ceases to apply.

6.2. In case You receive any request or communication from Data Subjects which relates to the Processing of Personal Data ("Request"), We shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by You.

6.3. Where We receive a Request, We shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You. 


7. Technical and Organizational Measures 

7.1. We shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs"). Such measures shall include the measures set out in Schedule B.  


8. Assistance with Data Protection Impact Assessment 

8.1. Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, We shall provide, upon request, to You any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not pertaining to Our obligations under this DPA. 

8.2. You shall pay Us reasonable charges for providing the assistance in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the services.


9. Information Rights and Audit

9.1.
We shall, in accordance with Data Protection Laws, make available to You on request in a timely manner such information as is necessary to demonstrate compliance by Us with Our obligations under the Data Protection Laws. 

9.2. We shall, upon reasonable notice, allow for and contribute to audits of Our Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to Our business operations. Such audits shall be conducted by You, Your affiliates or an independent third party on Your behalf (which will not be a competitor of Our business) that is subject to reasonable confidentiality obligations.

9.3. You shall pay Us reasonable costs of allowing or contributing to audits or inspections in accordance with clause 9.2 where You wish to conduct more than one audit or inspection every twelve (12) months. We will immediately refer to You any requests received from national data protection authorities that relate to Our Processing of Personal Data.

9.4. We undertake to reasonably cooperate with You in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.


10. Personal Data Breach Notification

10.1.
In respect of any Personal Data Breach (actual or reasonably suspected), We shall: notify You of a Personal Data Breach involving Us or a sub-processor without undue delay and it shall be Your responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by Us; 

10.2. provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.


11. Sub-Processing

11.1. We have Your general authorisation for the engagement of third-party sub-processors from an agreed list, as set forth in Schedule A.  We will notify Your Account administrator of any intended changes to that list through the appointment or replacement of any sub-processor at least fifteen (15) days in advance. You may object to Our appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, We will either not appoint or replace the sub-processor or, if this is not possible, You or We may suspend or terminate the service(s) (without prejudice to any fees incurred by You prior to such suspension or termination). Where We, with Your authorisation, engage a sub-processor, We shall do so only by way of a binding written contract which imposes on the sub-processor essentially the same data protection obligations as the ones imposed Us under this DPA and in accordance with Art. 28 of the GDPR.  

11.2. Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, We shall remain fully liable to You for the fulfilment of Our obligations under this DPA and for the performance of the sub-processor 's obligations.


12. International Data Transfers

12.1. We shall at all times provide an adequate level of protection for the Personal Data, wherever Processed, in accordance with the requirements of Data Protection Laws. We Process Personal Data under the Terms that originates from the EEA and/or Switzerland, and any such Processing shall be conditional on Us complying with (and procuring any sub-processor comply with) the SCCs, which are incorporated by reference and form an integral part of this DPA.  The SCCs shall apply as follows: 
(a) Module 2 (Controller to Processor) shall apply where You are a Controller; and
(b) Module 3 (Processor to Processor) shall apply where You are a Processor. Where You act as Processor under Module 3 (Processor to Processor) of the SCCs, We acknowledge that You act as Processor under the instructions of Your Controller(s). 

12.2. Purely for the purposes of the descriptions in the SCCs and only as between Us and You, We agree that We are the “data importer” and You are the “data exporter” under the SCCs (notwithstanding that You are located outside the EEA and/or Switzerland. Further, Schedule A, B and C of this DPA will take the place of Annexes I, II and III of the SCCs respectively.     For the purposes of Clause 17 of the SCCs, the governing law of the SCCs shall be the law of Ireland.

12.3. For the purposes of Clause 18 of the SCCs, any dispute arising from the SCCs shall be resolved by the courts of Ireland/ Switzerland.

12.4.For signing SCCs for the transfer of Personal Data originating from the United Kingdom, please reach out to us.


13. Deletion or Return of Personal Data
Upon termination of Your Account, We may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that We are permitted by applicable law to retain some or all of the Personal Data, in which event We shall isolate and protect the Personal Data from any further processing. 


14. Miscellaneous

14.1. In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with Us. 

14.2. No party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement. 

14.3. Where this DPA requires a “written notice” such notice can also be communicated per email to the other party. Notices shall be sent to the contact persons set out in Schedule A.

14.4. Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.

14.5. Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA. 

The following Schedules form an integral part of this DPA:

SCHEDULE A

LIST OF PARTIES UNDER THE SCCS

Data exporter:
The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.
Signature & Date:  By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role: Controller or Processor
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
1. Name: …………………………………………………………………………………
Address: …………………………………………………………………………………
Contact person’s name, position and contact details:……………………………………
Activities relevant to the data transferred under these Clauses: ………………………….
Signature & Date:  By entering into the Agreement, Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role: Processor or sub-processor


   B.  DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners, customers or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.

Categories of personal data transferred

The transferred Personal Data concerns the following categories of data:
The data exporter determines the categories of Personal Data which could be transferred per the services as stated in the Terms of Service. Such categories may include the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorized personnel. 

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.

No Sensitive Personal Data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Data to the data importer for processing.

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)

Personal Data is transferred on a continuous basis

Nature of the processing

Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means).

Purpose(s) of the data transfer and further processing

Personal Data is transferred in the course of access and use by the data exporter of the services so that the data importer may provide, support, maintain and improve the services.
The data importer may further transfer Personal Data to third-party service providers that host and maintain the applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Upon termination of the data exporter’s account, the data importer will delete all Personal Data in accordance with clause 13 of the DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing


Name of the Sub-processor
Subject Matter
Nature
Duration





C. COMPETENT SUPERVISORY AUTHORITY

In respect of the SCCs:

Module 2: Transfer Controller to Processor

Module 3: Transfer Processor to Processor

Where You are the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over You in accordance with Clause 13 of the SCCs.

SCHEDULE B

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
 EXPLANATORY NOTE: 

The technical and organisational measures must be described in specific (and not generic) terms and need to clearly indicate which measures apply to each transfer/set of transfers. 

     Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons. [Examples of possible measures: Measures of pseudonymisation and encryption of personal data Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing Measures for user identification and authorisation Measures for the protection of data during transmission Measures for the protection of data during storage Measures for ensuring physical security of locations at which personal data are processedMeasures for ensuring events logging Measures for ensuring system configuration, including default configuration Measures for internal IT and IT security governance and management Measures for certification/assurance of processes and products Measures for ensuring data minimisation Measures for ensuring data quality Measures for ensuring limited data retention Measures for ensuring accountability Measures for allowing data portability and ensuring erasure]For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter


SCHEDULE C

LIST OF SUB-PROCESSORS
Not used.