DPA
Data processing agreement
This Data Processing Agreement (“Agreement”) forms part of the License Agreement (“Principal Agreement”) between (the “Company”)
and (the “Processor”) (together as the “Parties”)
Whereas
(A) The Company acts as the Controller.
(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Processor.
(C) The Parties seek to implement a data processing agreement that complies with all applicable data protection laws, including the Swiss Federal Data Protection Act of June 19, 1992 (LPD) and/or, as applicable, the General Data Protection Regulation (EU) 2016/679 of April 27, 2016 (RGPD), as amended from time to time.
(D) The Parties wish to lay down their rights and obligations.
It is agreed as follows:
Table of contents
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1. Interpretation and definitions
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;
1.1.3 “Contracted Processor” means a Subprocessor, or a Person, who is using the data based on the Contractual relations;
1.1.4 “Data Protection Laws” means the Swiss Federal Data Protection Act of June 19, 1992 (LPD) as well as the Ordinance relating to the Swiss Federal Data Protection Act of June 14, 1993 (OLPD) and/or the General Data Protection Regulation (EU) 2016/679 of April 27, 2016 (RGPD) as amended from time to time, and where applicable other applicable data protection laws.;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “EU Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance (“Swiss DPA”); in each case, as may be amended, superseded or replaced.
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or
1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, orbetween two establishments of a Contracted Processor,
1.1.9 “Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
1.1.10 “Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Processor Data; and (ii) is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
1.1.11 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Subscription Services. “Personal Data Breach” will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
1.1.12 “Services” means the __________________ services the Company provides.
1.1.13 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Parties to this DPA
2.1 Permitted Affiliates. By signing the Agreement, the Parties enter into this DPA on behalf of themselves and in the name and on behalf of their permitted affiliates, as applicable. For the purposes of this DPA only, and except where indicated otherwise, the terms “Company”, “Controller”, “you” and “your” will include you and your permitted affiliates as applicable, and the terms “Processor”, “us” and “our” will include us and our permitted affiliates, as applicable.
2.2 Authorization. The legal entity agreeing to this DPA as Processor, respectively Controller, represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its permitted affiliates.
3. Processing of company personal data
3.1 Processor shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data;
3.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions;
3.1.3. ensure compliance with Laws and all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data;
3.1.4 ensure the confidentiality of Company Personal Data.
3.1.5 “EEA” means the European Economic Area;
3.1.6 “EU Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 2016/679
3.2 Without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Processor Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations; (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. You will inform us without undue delay if you are not able to comply with your responsibilities under this ‘Compliance with Laws’ section or applicable Data Protection Laws.
3.3. Company Instructions. The Parties agree that the Agreement (including this DPA), together with your use of the Services in accordance with the Agreement, constitute your complete Instructions to us in relation to the Processing of Personal Data, so long as you may provide additional instructions during the subscription term that are consistent with the Agreement.
3.4 Security. You are responsible for independently determining whether the data security provided for in the Services adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Services, including protecting the security of Personal Data in transit to and from the Services (including to securely backup or encrypt any such Personal Data).
We undertake to take the technical and organizational security measures in order to ensure a level of security appropriate to the risks.
4. Processor personnel
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, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Subprocessing
Processor shall give the Company prior written notice of the appointment of any Subprocessor (other than any Subprocessor already disclosed to and accepted by the Company). If within fourteen (14) days of such notice given to the Company pursuant to Article 12.2 of this Agreement, the Company notifies Processor in writing of any objections to the proposed appointment of any Subprocessor on reasonable grounds (e.g., if a proposed Subprocessor’s Processing of the Company Personal Data would cause the Company to violate Data Protection Laws), the parties shall discuss in good faith to find a mutually acceptable solution. If no such mutually acceptable solution may be found within 30 days of Processor’s notice to the Company regarding the proposed Subprocessor or, if earlier, the proposed date of appointment of such Subprocessor, either party may terminate the Agreement with immediate effect. If the Company does not notify Processor in writing of any objection within 14 days of Processor’s notice to the Company regarding the proposed Subprocessor, the Company shall be deemed to have accepted the proposed subprocessor
6. Provision of information to the data subject
You shall provide the “Data Subjects” (as such term is defined in the Data Protection Laws) with the information required pursuant to the Data Protection Laws such as the information stated in Article 13 GDPR.
If a Data Subject contacts us to exercise one of his/her rights, we shall without undue delay forward such request (and all other relevant information) to you
Taking into account the nature of the Processing, Processor shall assist Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7. Personal data breach
7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing 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 Processor shall cooperate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data protection impact assessment and prior consultation
Processor shall provide reasonable 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 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 Contracted Processors.
9. Deletion or return of company personal data
9.1 Subject to this section 8 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data, respectively return all Company Personal Data to Company, unless a mandatory statutory obligation applicable to Processor requires storage of Company Personal Data.
9.2 Processor shall provide written certification to the Company that it has fully complied with this section 8 within 10 business days of the Cessation Date.
10. Audit rights
10.1 Subject to this section 10, 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 Contracted Processors.
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 Processor does not transfer Personal Data outside Switzerland or the European Union. In the event that Personal Data should be transmitted to a country that does not guarantee an adequate level of protection of Personal Data according to the European Commission and/or the Swiss Federal Data Protection and Transparency Officer, we will implement appropriate safeguards in accordance with applicable legal requirements to ensure adequate protection of Personal Data. To achieve this, Processor shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of Personal Data.
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 first page of this Agreement or at such other address as notified from time to time by the Parties changing address.
12.3 Duration. This Agreement takes effect on the date of its signature by both Parties. It shall survive termination (for any reason) or expiry of the Principal Agreement and remain in full force and effect for as long as any data processing activities take place. As soon as the last data processing activity ceases (and all Company Personal Data is either deleted or returned to Company), this Agreement shall terminate without notice.
12.4 Relationship with the Principal Agreement. In case of a direct conflict between the provisions of this Agreement and the Principal Agreement, the provisions in this Agreement shall only prevail to the extent it offers a higher protection of the Company Personal Data.
12.5 Assistance/cooperation fees. When, according to the terms of this Agreement and Data Protection Laws, Processor shall assist Company or cooperate with Company in the course of the fulfilment of Company’s obligations (e.g. to respond to requests from Data Subjects, or in the context of investigations initiated by the competent supervisory authorities, or any data protection impact assessment), such assistance/cooperation will be at the Company’s expense, according to Processor’s usual rates.
13. Governing law and jurisdiction
13.1 This Agreement is governed by the laws of Switzerland and EU laws as stated in the Definitions above.
13.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Geneva, Switzerland.
IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below.