This Data Processing Agreement (“DPA”) forms part of and is subject to the Master Services Agreement or such other agreement entered into between the parties (“Main Agreement”) under which Supplier provides services (“Services”) to Customer. Customer and Supplier are collectively referred to in this DPA as the “Parties” and each a “Party”. Capitalized terms not otherwise defined in this DPA have the meaning given to them in the Main Agreement.
1.1. “Affiliates” has the same meaning set forth in the Main Agreement.
1.2. “Authorized Affiliates” are Customer Affiliates who have entered into service orders or to which Customer has granted a sublicense to the Contentful Services in accordance with the Main Agreement.
1.3. “CCPA” means the California Consumer Privacy Act of 2018, as may be amended, supplemented or replaced from time to time, including the California Privacy Rights Act of 2020.
1.4. “Customer Data” has the same meaning set forth in the Main Agreement.
1.5. “Customer Personal Data” means the Personal Data contained within Customer Data.
1.6. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data.
1.7. “Data Protection Laws” means all data protection and privacy laws applicable to the respective Party in its role in the Processing of Personal Data under the Main Agreement, including without limitation, European Data Protection Laws and US Data Protection Laws.
1.8. “Data Subject” means the identified or identifiable natural person to whom Customer Personal Data relates.
1.9. “European Data Protection Laws” means, to the extent applicable, (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) the GDPR as it forms part of United Kingdom law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018; (iii) the Swiss Federal Act on Data Protection of 19 June 1992 and; (iv) any implementing, supplementing, or successor legislation to those laws and regulations identified in subsections (i)-(iii) of this paragraph.
1.10. “Personal Data” means any information relating to an identified or identifiable natural person and includes similarly defined terms in Data Protection Laws, including “personal data” under GDPR and “personal information” under the CCPA.
1.11. “Standard Contractual Clauses” means, depending on the circumstances unique to any particular Customer, any of the following: (i) “EU SCCs” means the standard contractual clauses for the transfer of personal data to third countries approved pursuant to Commission Decision (EU) 2021/914 of 4 June 2021, currently found at and/or; (ii) “UK Addendum” means the International Data Transfer Addendum issued by the Information Commissioner’s Office under s.119(A) of the UK Data Protection Act 2018, currently found at and/or; (iii) “Swiss Addendum” means the EU SCCs as modified in Schedule 3 to this DPA to address the Swiss Federal Act on Data Protection of 19 June 1992 and the Swiss Ordinance to the Swiss Federal Act on Data Protection of 14 June 1993, including any implementing, supplementing, or successor legislation.
1.12. “Sub-processor” means any other Processors engaged by Supplier to Process Customer Personal Data.
1.13. “US Data Protection Laws” means, to the extent applicable, federal and state laws relating to data protection, privacy and/or the Processing of Personal Data in force from time to time in the United States.
1.14. The terms “Controller”, “Processor” and “Processing” (including Process, Processed, and Processes) shall have the respective meanings ascribed to them in Data Protection Laws. If and to the extent that Data Protection Laws do not define such terms, then the definitions given in European Data Protection Laws will apply.
2. Scope of Application
2.1. Except as provided by this DPA, the Main Agreement remains unchanged and in full force and effect. The provisions of the Standard Contractual Clauses attached in Schedule 3 prevail, where applicable, over this DPA to the extent of any discrepancy between the two.
2.2. Supplier’s obligations in this DPA shall also extend to Authorized Affiliates, provided that (i) only Customer can communicate any additional Processing instructions pursuant to this Section 2; (ii) all acts and/or omissions by an Authorized Affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer; and (iii) any claims by an Authorized Affiliate against Supplier in relation to this DPA must be brought by Customer directly against Supplier on behalf of such Authorized Affiliate.
2.3. This DPA becomes effective from the date last signed by the Parties below (“Effective Date”) and remains in effect for as long as Supplier Processes Customer Personal Data pursuant to the Main Agreement.
3. Roles of Parties
3.1. For the purposes of GDPR, Supplier acts as a Processor on behalf of the Customer who acts as either: (i) a Controller; or (ii) a Processor on behalf of another Controller.
3.2. For the purposes of US Data Protection Laws, Supplier will act as a “service provider” or “processor” (as defined under US Data Protection Laws), as applicable, in its performance of its obligations pursuant to the Main Agreement and this DPA.
3.3. As between the Parties, Customer is and remains the owner of Customer Personal Data and the holder of all rights relating to Customer Personal Data.
4. Processing of Customer Personal Data Pursuant to Customer’s Instructions
4.1. Each Party will comply with its respective obligations under Data Protection Laws. Supplier shall Process Customer Personal Data solely on behalf of Customer and on Customer’s written instructions which are set forth in the Main Agreement and this DPA. Any additional requested instructions require the prior written agreement of the Parties. Supplier shall promptly notify Customer if Supplier determines that such instructions conflict with European Data Protection Laws. Without limiting the foregoing, Supplier is prohibited from:
4.1.1. selling Customer Personal Data or otherwise making Customer Personal Data available to any third party for monetary or other valuable consideration;
4.1.2. sharing Customer Personal Data with any third party for cross-context behavioral advertising;
4.1.3. retaining, using, or disclosing Customer Personal Data for any purpose other than for the business purposes specified in the Main Agreement or as otherwise permitted by Data Protection Laws; and
4.1.4. combining Customer Personal Data with other Personal Data that Supplier receives from or on behalf of another person or persons, or collects from its own interaction with the Data Subject.
4.2. Supplier must notify Customer without delay if Supplier determines that it can no longer meet its obligations under US Data Protection Laws. Upon such notice, Customer may direct Supplier to take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Personal Data by suspending the relevant Processing operations and/or deleting all or the relevant portion of Customer Personal Data; or by such other means as agreed to by the Parties.
4.3. The details of the Processing of Customer Personal Data under the Main Agreement and this DPA (e.g., subject matter, nature, duration and purpose of the Processing, categories of Personal Data and Data Subjects) are set forth in the Main Agreement and/or Schedule 1 to this DPA.
5. Customer Obligations
5.1. Customer is responsible for obtaining all necessary consents, permissions and rights required under Data Protection Laws for Supplier to lawfully Process Customer Personal Data to provide the Services.
5.2. Customer shall not issue Processing instructions that would cause Supplier to Process Customer Personal Data in violation of Data Protection Laws.
5.3. Customer is responsible for making an independent determination as to whether its use of the Services will meet Customer’s requirements and legal obligations under Data Protection Laws. Supplier shall have no obligation to assess the contents or accuracy of Customer Personal Data.
6. Security of Processing
6.1. Supplier takes appropriate technical and organizational measures to ensure an adequate level of protection for Customer Personal Data corresponding to the risk of the respective Processing. Such measures are in consideration of the state of the art, implementation costs and the type, scope, circumstances, and aims of the Processing as well as the varying likelihood and severity of risk to the rights and freedoms of Data Subjects.
6.2. Customer has assessed the security measures offered by Supplier to meet the standards required by Data Protection Laws as of the Effective Date. Such technical and organizational measures are specified in Schedule 2 to this DPA and/or in the Main Agreement and Supplier will maintain those (or effectively similar) measures during the term of the Main Agreement.
6.3. Supplier shall ensure that any person who is authorized by Supplier to Process Customer Personal Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
7.1. Customer hereby authorizes Supplier to appoint Sub-processors in accordance with this section.
7.2. Supplier can continue using those Sub-processors already engaged by Supplier as of the Effective Date and that are listed at [INSERT LINK] (“Sub-processor Site”), subject to Supplier meeting the obligations set out in this section.
7.3. Supplier shall notify Customer of new Sub-processors and prior to engaging new Sub-processors. Customer is entitled to provide reasonable objections to any change notified by Supplier within 30 days and for materially important reasons relating to the new Sub-processor’s proposed Processing of Customer Personal Data. If Customer fails to object to such change within this time, Customer is deemed to have consented to such change. Where a reasonable and materially important basis for such objection exists and an amicable resolution fails, Customer, as its sole and exclusive remedy, may provide written notice to Supplier terminating the Provisioning Documents with respect only to those aspects which cannot be provided by Supplier without the use of the new Sub-processor. Supplier will refund Customer any prepaid unused fees of such Provisioning Documents following the effective date of termination.
7.4. Supplier (i) remains liable under this DPA for the acts and omissions of Sub-processors and (ii) will enter into written agreements with such Sub-processors containing data protection obligations not less protective than those in this DPA, and including Standard Contractual Clauses, to the extent applicable to the nature of the services provided by such Sub-processor.
8. Data Subject Requests
8.1. If a Data Subject contacts Supplier to exercise the Data Subject’s rights regarding Customer Personal Data as permitted under Data Protection Laws (“Data Subject Request(s)”) and that the requestor identifies as originating from Customer, Supplier will not respond to such request but will instead forward such request to Customer without undue delay. To the extent Customer is unable to independently respond to a Data Subject Request, Supplier will provide reasonable assistance upon Customer’s written request.
8.2. If a Data Subject has a right to data portability with respect to Customer Personal Data, Supplier will ensure that Customer can obtain such data in a structured, common and machine-readable format.
9. Data Breach
9.1. If Supplier becomes aware of a Data Breach, it will notify Customer without undue delay and, in any case, where feasible, within 72 hours after becoming aware, so as to facilitate the Parties’ compliance with Data Protection Laws (such as notification timelines set by GDPR Article 33 (1)). Supplier shall notify Customer, to the extent known, about the nature of the Data Breach, the identities, categories and number of Data Subjects affected, and the number of data sets affected.
9.2. Supplier will, without undue delay, take all necessary and reasonable measures to mitigate or contain the Data Breach. Supplier will inform Customer as soon as reasonably possible about such measures and keep Customer informed as reasonably practicable.
10. Return and deletion of Customer Personal Data
10.1. Within 30 days of written request by Customer upon termination or expiration of the Agreement, Supplier will delete (such that it cannot be recovered or reconstructed) all Customer Data, including Customer Personal Data, within its possession or control.
10.2. Supplier may retain Customer Personal Data after termination of the Main Agreement only to the extent and for such period as required by Data Protection Laws. Any Customer Personal Data retained by Supplier under this section shall be Processed in compliance with the terms of this DPA and shall only be Processed as necessary for the purposes specified in the Data Protection Laws requiring its retention.
11. Cross Border Data Transfers Mechanism.
If any Customer Personal Data transfer between Customer and Supplier requires execution of Standard Contractual Clauses in order to comply with European Data Protection Laws (where Customer is the Data Exporter), the terms and conditions of Schedule 3 will apply.
To the extent that the Main Agreement does not otherwise give the information and audit rights pertaining to the processing of Customer Personal Data and meeting the relevant requirements of Data Protection Laws (including, where applicable, GDPR Article 28(3)(h)), Supplier will upon reasonable request make available to Customer all information reasonably necessary to demonstrate compliance with this DPA, and will allow for and contribute to audits, including inspections, by Customer or an auditor designated by Customer in relation to the Processing of Customer Personal Data. Supplier will not unreasonably withhold or delay agreement to an auditor selected by Customer. Customer will take all reasonable endeavors to minimize disruption to Supplier’s business. The audit and any information arising therefrom shall be considered Supplier’s Confidential Information and may only be shared with a third-party with Supplier’s prior written agreement. Customer will not exercise this right more than once per calendar year unless (i) Customer has reasonable grounds to suspect non-compliance with the DPA or (ii) Customer is required to carry out an audit by Data Protection Laws, a supervisory authority or any similar regulatory authority responsible for enforcement of such laws; or (iii) if an earlier audit has identified non-conformity with this DPA or Data Protection Laws. Customer shall bear the costs of any audits under this Section 12, except to the extent otherwise required by applicable Data Protection Laws or to the extent such audit discloses any material non-compliance with Supplier’s obligations under this DPA. Nothing herein limits any rights mandated by law, such as supervisory authority and Data Subject rights, including in accordance with the Standard Contractual Clauses.
13. Cooperation Obligations
13.1. If Customer is required to provide information to a supervisory authority or to otherwise cooperate with a public authority, relating to Processing of Customer Personal Data, Supplier will support Customer by providing such information reasonably available to it or otherwise reasonably cooperating with Customer, including as such information relates to technical and organizational measures taken in line with Article 32 GDPR.
13.2. To the extent necessary and reasonable, Supplier will support Customer by providing reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments or consultation (if applicable) with data protection authorities as required by Data Protection Laws.
14. Relationship to Main Agreement
14.1. This DPA shall replace and supersede any existing data processing addendum, attachment, exhibit or standard contractual clauses that Supplier and Customer may have previously entered into in connection with the Services. This DPA is subject to the governing law and jurisdiction provisions in the Main Agreement unless and to the extent required otherwise by Data Protection Laws.
14.2. Each Party and each of its Affiliates’ liability, taken in the aggregate, arising out of or related to this DPA (including the Standard Contractual Clauses where applicable), whether in contract, tort or under any other theory of liability, are subject to the limitations and exclusions of liability set out in the Main Agreement.
For purposes of the Standard Contractual Clauses in Schedule 3, this Schedule 1 serves as Annex I, Part B.
Categories of Customer Personal Data
The types of Customer Personal Data are determined and controlled by Customer in its sole discretion. Such Customer Personal Data typically may include, but is not limited to, business contact information (e.g., names, email addresses, phone numbers).
No “special categories of personal data” or similarly sensitive Personal Data are transferred.
Categories of Data Subjects
Customer Data may include Personal Data, the Data Subjects of which are controlled and determined by Customer at its sole discretion. Possibly Customer personnel and contractors using Services and communicating with Supplier. Possibly end users of the Customer applications.
Duration of Processing
Duration of the Main Agreement, including this DPA as described in Section 10 herein.
Frequency of Processing
Continuous basis for the duration of the Main Agreement
Nature of Processing
Any operation necessary for the performance of the Main Agreement and to comply with Customer’s Processing instructions.
Purposes of Processing
Performance of the Main Agreement and provision of Services and related support services; hosting Customer Data and serving it via application programming interfaces to customer applications.
Competent Supervisory Authority
The competent supervisory authority of the applicable Member State of Customer (the data exporter for purposes of Schedule 3).
For purposes of the Standard Contractual Clauses in Schedule 3, this Schedule 2 serves as Annex II.
This Schedule 2 may be replaced by the Supplier security policy by appending or referencing and incorporating such policy herein: [INSERT LINK TO SECURITY POLICIES OR DESCRIBE SECURITY POLICIES]
For data transfers by Customer from the European Economic Area, the United Kingdom or Switzerland to Supplier in a country that does not ensure an adequate level of protection within the meaning of Data Protection Laws, the EU SCCs and/or UK Addendum and/or Swiss Addendum, as applicable, shall govern such transfers.
1. EU SCCs
The EU SCCs will apply to any Processing of Customer Personal Data that is subject to the GDPR and any optional clauses not expressly selected are not incorporated. For the purposes of the EU SCCs:
1.1. Module Two terms will apply in the case of Processing where Customer acts as a Controller and Module Three terms will apply in the case of Processing where Customer acts as a Processor.
1.2. Clause 7 (the docking clause) will apply.
1.3. Clause 9, Option 2 (General written authorization) will apply, and the time period for prior notice of Sub-processor changes will be as set forth in Section 7 (Sub-processors) of this DPA.
1.4. With regard to Clause 17 (Governing law), option 1 will apply and the governing law will be the governing law as set forth in the Main Agreement, or, if such section does not specify an EU Member State, shall be determined in accordance with applicable Data Protection Laws.
1.5. With regard to Clause 18 (Choice of forum and jurisdiction), the jurisdiction shall be the jurisdiction as set forth in the Main Agreement.
1.6. For purposes of Annex I, Part A of the EU SCCs, Schedule 1 of the DPA contains the specifications regarding the Processing and the competent supervisory authority and the following shall apply with respect to the Parties:
: The Customer listed in the DPA
: Customer’s account owner email address
: Controller for Module Two and Processor for Module Three
: By entering into the DPA, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the DPA.
: Supplier and its Affiliates
: Supplier Privacy Team – email@example.com
: Processor for Module Two and sub-processor for Module Three
: By entering into the DPA, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the DPA.
1.7. For purposes of Annex II, Schedule 2 of the DPA contains the technical and organizational measures.
1.8. The specifications for Annex III are determined by Section 7 of this DPA. The Sub-processors’ contact persons’ names, positions and contact details will be provided by Supplier upon written request.
2. UK Addendum
The UK Addendum will apply to any Processing of Customer Personal Data that is subject to the UK GDPR or to both the UK GDPR and the GDPR. For purposes of the UK Addendum:
2.1. Table 1: The Parties are Supplier and Customer, with contact details as set forth in this DPA.
2.2. Table 2: The Approved Standard Contractual Clauses are the EU SCCs as set forth in Section 1 (EU SCCs) of this Schedule 3 to the DPA.
2.3. Table 3:
2.3.1. Annex 1A: as set forth in Section 1.6 of this Schedule 3;
2.3.2. Annex 1B: as set forth in Schedule 1 of this DPA;
2.3.3. Annex II: as set forth in Schedule 2 of this DPA and;
2.3.4. Annex III: as set forth in Section 8 of this DPA.
2.4. Table 4: Either Party may terminate the UK Addendum in accordance with Section 19 of the UK Addendum if the Parties are unable to come to a mutual agreement after a good faith effort to amend this DPA to account for changes arising from a revised Approved Addendum issued by the ICO.
2.5. Part 2 Mandatory Clauses. The Mandatory Clauses of the Approved Addendum, (being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as revised under Section 18 of those Mandatory Clauses) shall apply.
3. Swiss Addendum
For transfers of Customer Personal Data that are subject to the Swiss Federal Act on Data Protection of 19 June 1992 and the Swiss Ordinance to the Swiss Federal Act on Data Protection of 14 June 1993 (Swiss Data Protection Laws), the EU SCCs form part of this Swiss Addendum, but with the following differences to the extent required by the Swiss Data Protection Laws.
3.1. References to the GDPR in the EU SCCs shall be references to Swiss Data Protection Laws to the extent the data transfers are subject exclusively to Swiss Data Protection Laws and not to the GDPR.
3.2. References to the “European Union”, “Union”, “EU” and “EU Member State” are all replaced with “Switzerland”.
3.3. The “competent supervisory authority” is the Federal Data Protection and Information Commissioner insofar as the transfers are governed by Swiss Data Protection Laws.
3.4. References to “personal data” in the EU SCCs also refer to data about identifiable legal entities until the entry into force of revisions of Swiss Data Protection Laws that eliminate this broader scope.
3.5. Clause 18 of the EU SCCs is replaced to state: “Any dispute arising from these Clauses relating exclusively to Swiss Data Protection Laws will be resolved by the courts in Switzerland. A Data Subject may also bring legal proceedings against the data exporter and/or data importer before the courts of Switzerland in which he/she has his/her habitual residence.”
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