Data Processing Agreement
Effective Date: Fri,28 Oct 2022
Last Updated on: Fri, 28 Oct 2022
This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between the Company and the Customer. The Company and the Customer are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
This DPA forms an integral part of the Terms and Conditions available at https://gtmbuddy.ai/terms-and-conditions (the “Terms”) and is applicable where the Company Processes Customer’s Personal Data originating from the European Economic Area (“EEA”),United Kingdom (“UK”) and/or Switzerland.
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 (a) the GDPR; (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union(Withdrawal) Act 2018 (“UK GDPR”)and the Data Protection Act, 2019 (together, “UK Data Protection Laws”); (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) in each case, as may be amended, superseded or replaced.
“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).
“Personal Data” shall mean any information relating to anidentified 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 thatnatural person forming a part of Customer Data.
“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner. `
“Sensitive Personal Information” shall mean 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.
“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU)2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021)and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EUSCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, VersionB1.0, in force from 21 March 2022 set forth as Schedule D (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner(the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).
“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process(ing)” shall have the meaning given to them in the GDPR.
2. Scope and Responsibilities
2.1. This DPA applies to Processing of Personal Data originating from the UK, EEA and/or Switzerland.
2.2. The Company shall Process Personal Data only on the Customer’s behalf and at all times only in accordance with this DPA. For the avoidance of doubt, the Company shall be the Processor where Customer is the Controller of the Personal Data and where Customer is the Processor, the Company shall be 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 the Customer subscribing to the Service(s) by agreeing to the Terms. It shall continue to be in force and effect as long as the Company is Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.
3.2. Where amendments are required to ensure compliance of this DPA or a Schedule with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon the Customer’s 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. The Company will Process Personal Data in accordance with the Customer’s instructions. This DPA contains the Customer’s initial instructions to the Company. The Parties agree that the Customer may communicate any change in its initial instructions to the Company byway 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. The Company shall without undue delay inform the Customer inwriting if, in its opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.
5. Processor Personnel
The Company will restrict its personnel from Processing Personal Data without authorization. The Company will impose appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
6. Disclosure to Third Parties; Data Subjects Rights
6.1.The Company will not disclose Personal Data to any government agency, court, or law enforcement except with the Customer’s written consent or as necessary to comply with applicable mandatory laws. If the Company is obliged to disclose Personal Data to a law enforcement agency, the Company agrees to give the Customer reasonable notice of the access request prior to granting such access, to allow the Customer to seek a protective order or other appropriate remedy. If such notice is legally prohibited, the Company will take reasonable measures to protect the Personal Data from undue disclosure as if it were the Company’s own confidential information being requested and shall inform the Customer promptly as soon as possible if and when such legal prohibition ceases to apply.
6.2. In case the Customer receives any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), the Company shall reasonably provide the Customer with full cooperation, information and assistance ("Assistance")in relation to any such Request where instructed by you.
6.3. Where the Company receives a Request, it shall (i) not directly respond to such Request, (ii) forward the Request to the Customer within five (5) business days of identifying the Request as being related to the Customer and (iii) provide Assistance according to further instructions from Customer.
7. Technical and Organizational Measures
7.1. The Company 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 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, the Company shall provide, upon request, to the Customer 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 the Company’s obligations under this DPA.
8.2. The Customer shall pay the Company 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 Service(s).
9. Information Rights and Audit
9.1. Upon Customer’s written request at reasonable intervals, the Company shall make available to the Customer relevant information regarding the Company’s Processing of Personal Data in the form of the Company's most recent third party audit reports such as SOC 2, to ensure compliance with the Company's obligations set out in this DPA. Customer agrees that such third party audits are sufficient to demonstrate the Company’s compliance with the obligations setout in this DPA.
9.2. The Company undertakes to reasonably cooperate with the Customer in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.
10. Personal Data Breach Notification
In respect of any Personal Data Breach (actual or reasonably suspected), the Company shall:
10.1. notify the Customer of a Personal Data Breach involving the Company or a subcontractor without undue delay.
10.2. provide reasonable information, cooperation and assistance to the Customer 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. Use of sub-processors
11.1. The Company has the Customer’s general authorization for the engagement of third-party sub-processors from an agreed list, as set forth in Schedule A. The Company will notify the Customer’s 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. The Customer may object to the Company’s 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, the Company will either not appoint or replace the sub-processor or, if this is not possible, the Company may suspend or terminate the Service(s) (without prejudice to any fees accrued prior to such suspension or termination).
11.2. Where the Company, with the Customer’s authorization, engages a sub-processor, it 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 on the Company under this DPA and in accordance with Art.28 of the GDPR.
11.3. Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, the Company shall remain fullyli able to the Customer for the fulfilment of its obligations under this DPA and for the performance of the sub-processor’s obligations.
12. International Data Transfers
12.1. The Parties agree that when the transfer of Personal Data from the Company to the Customer is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this DPA as follows:
a. In relation to transfers of Personal Data originating from the EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:
i. Module 2 (Controller to Processor) shall apply where the Customer is a Controller and the Company is a Processor. Module 3 (Processor to Processor) shall apply where the Customer is a Processor and the Company isa sub-processor;
ii. in Clause 7, the optional docking clause will apply;
iii. in Clause 9(a), Option 2 shall apply;
iv. in Clause 11, the optional language will not apply;
v. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by German law;
vi. in Clause 18(b), disputes shall be resolved before the courts of Bonn, Germany;
vii. Annex I, II and III of the EU SCCs shall be deemed completed with the information set out in Schedule A, B and C to this DPA respectively; and
b. In relation to transfers of Personal Data originating from Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications and shall constitute the Swiss SCCs:
i. references to Regulation (EU) 2016/679; shall be interpreted as references to the Swiss DPA;
ii. references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent article or section of the Swiss DPA;
iii. references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”;
iv. the term “member state” shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);
v. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the Swiss Federal Data Protection Information Commissioner;
vi. references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
vii. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and
viii. With respect to transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
c. Where the UK GDPR applies, the UK SCCs shall apply to transfers of Personal Data originating in the UK to any other country not recognized by the competent United Kingdom regulatory authority or governmental body for the United Kingdom as providing an adequate level of protection for Personal Data.
12.2. For the purposes of descriptions in the SCCs, the Customer agrees that it is the “data exporter” and the Company is the “data importer”.
12.3. The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Law requires the adoption of an alternative transfer solution, the data exporter and data importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.
13. Deletion or Return of Personal Data
Upon termination of the Customer’s account, the Company will delete all Customer Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that the Company is permitted by applicable law to retain some or all of the Personal Data, in which event the Company shall isolate and protect the Personal Data from any further Processing.
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 the Company.
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” or “written request”, such notice or request 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 bemade in writing and signed by both Parties.
14.5. Should individual provisions of this DPA become void, invalid ornon-viable, this shall not affect the validity of the remaining conditions ofth is DPA.
The following Schedules forms an integral part of this DPA:
A. LIST OF PARTIES UNDERTHE SCCs
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 Terms, data exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the DPA.
1. Name: GTM Buddy, Inc.
Address: 118Eagleson Street, Durham NC 27703
Contact person’s name, position and contact details:
Name: Santa Thounaojam
Designation: Co-Founder & Engineering
Activities relevant to the data transferred under these Clauses: As specified in Part B of Schedule A
Signature & Date: By entering into the Terms, Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the DPA.
Role(controller/processor): Processor/sub-processor of data exporter
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: data exporter’s customers, data exporter’s users, admins or other individuals whose Personal Data is, transmitted or, made available to the data importer by the data exporter in the course of data exporter’s use of Services.
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 Service(s) as stated in the Terms. 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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No sensitive data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information 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 during the term of the Customer’s account.
Nature of the processing
Collection, recording, organisation, storage, retrieval, use, disclosure by transmission or otherwise making available, alignment or combination, restriction (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 data importer’s applications, backup, storage, 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 to the data importer.
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
COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:
Module 2: Transfer Controller to Processor
Module 3: Transfer Processor to Processor
Where the Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has over the Customer in accordance with Clause 13 of the SCCs.
TECHNICAL AND ORGANISATIONALMEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational measures to ensure the security of Personal Data are mentioned in the Company’s security policy which Customer may request access to by writing to the Company at firstname.lastname@example.org.
LIST OF SUB-PROCESSORS
As specified in Schedule A.B
This UK SCCs shall stand included as an addendum to the EUSCCs set implemented under Clause 12.1 (a) of this DPA.
Part 1: Tables
For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Addendum by this reference) and completed as follows:
(a) In Table 1of the UK SCCs, the Parties’ details and key contact information shall be asset forth in Schedule A.A.
(b)In Table 2of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clauses 11.1 and 12.1(a)(i), (ii), (iii), (iv) of this DPA.
(c) In Table 3of the UK SCCs:
i Annex 1A:List of Parties: Parties are as set forth in Schedule A.A.
ii Annex 1B:Description of Transfer: Description of Transfer is as set forth in Schedule A.B.
iii Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: TOMs are as set forth in Schedule B.
iv Annex III: List of Sub processors: Sub processors are as set forth in Schedule A.B.
(d) In Table 4of the UK SCCs, both the data importer and the data exporter may end the UKSCCs in accordance with the terms of the UK SCCs.
Part 2: Mandatory Clauses
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 it is revised under Section 18 of those Mandatory Clauses.