DATA PROTECTION AGREEMENT
This Retruster Data Protection Agreement and its Annexes (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by us (RETRUSTER”, “Us”, “We”, “Our”, “Service Provider” or “Data Processor) on behalf of you (“Organization”) (collectively, “You”, “Your”, “Client”, or “Data Controller”) in connection with the Retruster Service.
Both parties shall be referred to as the “Parties” and each, a “Party”.
WHEREAS, RETRUSTER shall provide the services set forth in the Client Agreement (collectively, the “Services”) for Client, as described in the Agreement; and
WHEREAS, The Services may entail the processing of personal data in accordance with the EU Data Protection Directive 95/46/EC and its corresponding implementation laws in the EU Member States, as well as, as of May 25th 2018, the General Data Protection Regulation (EU) 2016/679 (collectively, the “Data Protection Laws and Regulations”); and
WHEREAS, In the course of providing the Services pursuant to the Agreement, we may process Personal Data on your behalf, in the capacity of a “Data Processor”; and the Parties wish to set forth the arrangements concerning the processing of Personal Data within the context of the Services and agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
NOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the parties, intending to be legally bound, agree as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 The headings contained in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA.
1.2 References to clauses or sections are references to the clauses or sections of this DPA unless otherwise stated.
1.3 Words used in the singular include the plural and vice versa, as the context may require.
1.4 Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(b) “Authorized Affiliate” means any of Client’s Affiliate(s) which (a) is subject to the Data Protection Laws And Regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Client and RETRUSTER, but has not signed its own agreement with RETRUSTER and is not a “Client” as defined under the Agreement.
(c) “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this DPA only, and except where indicated
otherwise, the term “Data Controller” shall include yourself, the Organization and/or the Organization’s Authorized Affiliates.
(d) “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
(e) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
(f) “Member State” means a country that belongs to the European Union and/or the European Economic Area. “Union” means the European Union.
(g) “RETRUSTER” means RETRUSTER Ltd.
(h) “RETRUSTER Group” means RETRUSTER and its Affiliates engaged in the Processing of Personal Data.
(i) “GDPR” means 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).
(j) “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
(k) “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(l) “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.
(m) “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Client, as updated from time to time, or as otherwise made reasonably available by RETRUSTER.
(n) “Sub-processor” means any Processor engaged by RETRUSTER.
(o) “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, (i) Client is the Data Controller, (ii) RETRUSTER is the Data Processor and that (iii) RETRUSTER or members of the RETRUSTER Group may engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
2.2 Client’s Processing of Personal Data. Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Client shall have sole responsibility for the means by which Client acquired Personal Data. Without limitation, Client shall have any and all required legal bases in order to collect, Process and transfer to Data Processor the Personal Data and to authorize the Processing by Data Processor of the Personal Data which is authorized in this DPA.
2.3 Data Processor’s Processing of Personal Data. Subject to the Agreement, Data Processor shall Process Personal Data in accordance with Client’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and this DPA and to provide the Services; (ii) Processing for Client to be able to use the Services; (iii) Processing to comply with other documented reasonable instructions provided by Client (e.g., via email) where such instructions are consistent with the terms of the Agreement; (iv) Processing as required by Union or Member State law to which Data Processor is subject; in such a case, Data Processor shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
To the extent that Data Processor cannot comply with a request from Client and/or its authorized users (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind), Data Processor (i) shall inform Client, providing relevant details of the problem, (ii) Data Processor may, without any kind of liability towards Client, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Client shall pay to Data Processor all the amounts owed to Data Processor or due before the date of termination. Client will have no further claims against Data Processor (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/ or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).
RETRUSTER will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of RETRUSTER, to the extent that such is a result of Client’s instructions.
If Client provides RETRUSTER or any of the entities of the RETRUSTER Group with instructions, requests, suggestions, comments or feedback (whether orally or in writing) with respect to the Services, Client acknowledges that any and all rights, including intellectual property rights, therein shall belong exclusively to RETRUSTER and that such shall be considered RETRUSTER’s intellectual property without restrictions or limitations of any kind, and Client hereby irrevocably and fully transfers and assigns to RETRUSTER any and all intellectual property rights therein and waives any and all moral rights that Client may have in respect thereto.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Data Processor is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
3. RIGHTS OF DATA SUBJECTS
3.1 Data Subject Request. Data Processor shall, to the extent legally permitted, promptly notify Client if Data Processor receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, erasure (“right to be forgotten”), restriction of Processing, data portability, right to object, or its right not to be subject to automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Data Processor shall assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Client, in its use of the Services, does not have the ability to address a Data Subject Request, Data Processor shall upon Client’s request provide commercially reasonable efforts to assist Client in responding to such Data Subject Request, to the extent Data Processor is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Client shall be responsible for any costs arising from Data Processor’s provision of such assistance.
4. RETRUSTER’ PERSONNEL
4.1 Confidentiality. Data Processor shall ensure that its personnel engaged in the Processing of Personal Data have committed themselves to confidentiality and non-disclosure.
4.2 Data Processor may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable Data Protection Laws and Regulations (in such a case, Data Processor shall inform the Client of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel(s), data protection advisor(s) and accountant(s).
5. AUTHORIZATION REGARDING SUB-PROCESSORS
5.1 Appointment of Sub-processors. Client acknowledges and agrees that (a) Data Processor’s Affiliates may be used as Sub-processors; and (b) Data Processor and/or Data Processor’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services.
5.2 List of Current Sub-processors and Notification of New Sub-processors.
5.2.1 Data Processor shall make available to Client the current list of Sub-processors used by Data Processor. Such a Sub-processor list shall include the identities and details of those Sub- processors and their country of location (“Sub-processor List”). The Sub-processor List as of the date of execution of this DPA, or as of the date of publication (as applicable), is hereby, or shall be (as applicable), authorized by Client. In any event, the Sub-processor List shall be deemed authorized by Client unless it provides a written reasonable objection for reasons related to the GDPR within three (3) business days following the publication of the Sub-processor List. Client may reasonably object for reasons related to the GDPR to Data Processor’s use of an existing Sub-processor by providing a written objection to RETRUSTER. In the event Client reasonably objects to an existing Sub-processor, as permitted in the preceding sentences, Client may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Data Processor without the use of the objected-to Sub-processor by providing written notice to Data Processor provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Data Processor. Client will have no further claims against Data Processor due to (i) past use of approved Sub-processors prior to the date of objection or
(ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.
5.3 Objection Right for New Sub-processors. Client may reasonably object to Data Processor’s use of a new Sub-processor for reasons related to the GDPR by notifying Data Processor promptly in writing within three (3) business days after receipt of Data Processor’s notice in accordance with the mechanism set out in Section 5.2 and such written objection shall include the reasons related to the GDPR for objecting to Data Processor’s use of such new Sub-processor. Failure to object to such new Sub-processor in writing within three (3) business days following Data Processor’s notice shall be deemed as acceptance of the new Sub-Processor. In the event Client reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Data Processor will use reasonable efforts to make available to Client a change in the Services or recommend a commercially reasonable change to Client’s use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Client. If Data Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Client may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Data Processor without the use of the objected-to new Sub-processor by providing written notice to Data Processor provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Data Processor. Until a decision is made regarding the new Sub- processor, Data Processor may temporarily suspend the Processing of the affected Personal Data. Client will have no further claims against Data Processor due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
5.4 Agreements with Sub-processors. Data Processor shall respect the conditions referred to in Articles 28.2 and 28.4 of the GDPR when engaging another processor for Processing Personal Data provided by Client. In accordance with Articles 28.7 and 28.8 of the GDPR, if and when the European Commission lays down the standard contractual clauses referred to in such Article, the Parties may revise this DPA in good faith to adjust it to such standard contractual clauses.
6.1 Controls for the Protection of Personal Data. Data Processor shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in the Security Documentation which are hereby approved by Client. Data Processor regularly monitors compliance with these measures. Upon the Client’s request, Data Processor will assist Client, at Client’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to Data Processor.
6.2 Third-Party Certifications and Audits. Upon Client’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement and this DPA, Data Processor shall make available to Client (or Client’s independent, third-party auditor that is not a competitor of Data Processor) a copy of Data Processor’s then most recent third-party audits or certifications, as applicable (provided, however, that such audits, certifications and the results therefrom, including the documents reflecting the outcome of the audit and/or the certifications, shall only be used by Client to assess compliance with this DPA and/or with applicable Data Protection Laws and Regulations, and shall not be used for any other purpose or disclosed to any third party without Data Processor’s prior written approval and, upon Data Processor’s first request, Client shall return all records or documentation in Client’s possession or control provided by Data Processor in the context of the audit and/or the certification). With respect to audits and inspections, the parties shall discuss in good faith and agree on the scope, timing and details of the audits and inspections. To the extent that Data Processor’s obligations in this section involve more than 8 hours/man of work, Client shall bear the costs and expenses of complying with this clause.
7. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION
Data Processor maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws and Regulations, shall notify Client without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data, transmitted, stored or otherwise Processed by Data Processor or its Sub-processors of which Data Processor becomes aware (a “Personal Data Incident”). Data Processor shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Data Processor deems necessary and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Data Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Client or Client’s users. In any event, Client will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).
8. DELETION OF PERSONAL DATA
Subject to the Agreement, Data Processor shall, upon the written request of Client, delete the Personal Data after the end of the provision of the Services relating to processing, unless applicable law requires storage of the Personal Data. In any event, to the extent required or allowed by applicable law, Data Processor may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or to comply with applicable laws and regulations.
9. AUTHORIZED AFFILIATES
9.1 Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Client enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Data Processor. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Client.
9.2 Communication. The Client shall remain responsible for coordinating all communication with Data Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
10. OTHER PROVISIONS
10.1 GDPR. With effect from 25 May 2018, the Parties will Process the Personal Data in accordance with the GDPR requirements directly applicable to each Party in the context of the provision and use of the Services.
This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided.
SCHEDULE 1 – DETAILS OF THE PROCESSING
Data Processor will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further instructed by Client in its use of the Services.
Nature and Purpose of Processing
1. Providing the Service(s) to Client.
2. Setting up an account/account(s) for Client.
3. Setting up profile(s) for users authorized by Clients.
4. For Client to be able to use the Services.
5. For Data Processor to comply with documented reasonable instructions provided by Client where such instructions are consistent with the terms of the Agreement.
6. Performing the Agreement, this DPA and/or other contracts executed by the Parties.
7. Providing support and technical maintenance, if agreed in the Agreement.
8. Resolving disputes.
9. Enforcing the Agreement, this DPA and/or defending Data Processor’s rights.
10. Management of the Agreement, the DPA and/or other contracts executed by the Parties, including fees payment, account administration, accounting, tax, management, litigation.
11. Complying with applicable laws and regulations, including for cooperating with local and foreign tax authorities, preventing fraud, money laundering and terrorist financing.
12. All tasks related with any of the above.
Duration of Processing
Subject to any Section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Data Processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Type of Personal Data
Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
● First name
● Last name
● Phone number
● Email address
● Personal Data included in the management of the Client’s Project(s)
● Payment information
● Business information
● Any other Personal Data or information that the Client decides to provide to the Data Processor.
The Client and the Data Subjects shall provide the Personal data to Data Processor by supplying the Personal data to Data Processor’s Services.
In some limited circumstances Personal Data may also come from others sources, for example, in the case of anti- money laundering research, fraud detection or as required by applicable law. For clarity, Client shall always be deemed the “Data Controller” and RETRUSTER shall always be deemed the “data processor” (as such terms are defined in the GDPR).
Categories of Data Subjects
Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
● Client’s customers and/or clients
● Client’s users authorized by Client to use the Services
● Employees, agents, advisors, freelancers of Client (who are natural persons)
● Prospects, Clients, business partners and vendors of Client (who are natural persons)
● Employees or contact persons of Client’s prospects, Clients, business partners and vendors