DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA“) is incorporated into, and is subject to the terms and conditions of, the Master Services Agreement between OpsCompass, Inc. (together with its affiliates, subsidiaries, officers, and employees, “OCI”) and the Customer countersigned on such Master Services Agreement (the “Agreement”).
All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. For the avoidance of doubt, all references to the “Agreement” shall include this DPA (including the SCCs (where applicable), as defined herein).
“Customer Data” means any personal data that OCI processes on behalf of Customer via the Services, as more particularly described in this DPA.
“Data Protection Laws” means all data protection laws and regulations applicable to a party’s processing of Customer Data under the Agreement, including, where applicable, EU Data Protection Law and Non-EU Data Protection Laws.
“EU Data Protection Law” means all data protection laws and regulations applicable to 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; (iii) applicable national implementations of (i) and (ii); and (iv) in respect of the United Kingdom (“UK“) any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the UK leaving the European Union.
“Europe” means, for the purposes of this DPA, the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.
“Non-EU Data Protection Laws” means the California Consumer Privacy Act (“CCPA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); and the Brazilian General Data Protection Law (“LGPD“), Federal Law no. 13,709/2018.
“SCCs” means the standard contractual clauses for processors as approved by the European Commission or Swiss Federal Data Protection Authority (as applicable), which shall be applied only to transfers of Customer Data from the European Union.
“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by OCI.
“Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; or (f) other information that falls within the definition of “special categories of data” under applicable Data Protection Laws.
“Services Data” means any data relating to the Customer’s use, support and/or operation of the Services, including information relating to volumes, activity logs, frequencies, bounce rates or other information regarding emails and other communications Customer generates and sends using the Services.
“Sub-processor” means any processor engaged by OCI to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or affiliates of OCI but shall exclude OCI employees or consultants.
The terms “personal data“, “controller“, “data subject“, “processor” and “processing” shall have the meaning given to them under Data Protection Laws or if not defined thereunder, the GDPR, and “process“, “processes” and “processed” shall be interpreted accordingly.
Article I. Roles and Responsibilities
Section 1.01 Parties’ roles. If EU Data Protection Law or the LGPD applies to either party’s processing of Customer Data, the parties acknowledge and agree that with regard to the processing of Customer Data, Customer is the controller and OCI is a processor acting on behalf of Customer, as further described in Annex A (Details of Data Processing) of this DPA.
Section 1.02 Purpose limitation. OCI shall process Customer Data only in accordance with Customer’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes“). The parties agree that the Agreement sets out Customer’s complete and final instructions to OCI in relation to the processing of Customer Data, and processing outside the scope of these instructions (if any) shall require prior written agreement between the parties.
Section 1.03 Prohibited data. Customer will not provide (or cause to be provided) any Sensitive Data to OCI for processing under the Agreement, and OCI will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.
Section 1.04 Customer compliance. Customer represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to OCI; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for OCI to process Customer Data for the purposes described in the Agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Without prejudice to the generality of the foregoing, Customer agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any 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.
Section 1.05 Lawfulness of Customer’s instructions. Customer will ensure that OCI’s processing of the Customer Data in accordance with Customer’s instructions will not cause OCI to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. OCI shall promptly notify Customer in writing, unless prohibited from doing so under EU Data Protection Laws, if it becomes aware or believes that any data processing instruction from Customer violates the GDPR or any UK implementation of the GDPR.
Article II. Sub-processing
Section 2.01 Authorized Sub-processors. Customer agrees that OCI may engage Sub-processors to process Customer Data on Customer’s behalf. OCI shall notify Customer if it adds or removes Sub-processors at least 10 days prior to any such changes.
Section 2.02 Sub-processor obligations. OCI shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Customer Data as those in this DPA, to the extent applicable to the nature of the service provided by such Sub-processor; and (ii) remain responsible for such Sub-processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-processor that cause OCI to breach any of its obligations under this DPA.
Article III. Security
Section 3.01 Security Measures. OCI shall implement and maintain appropriate technical and organizational security measures that are designed to protect Customer Data from Security Incidents and designed to preserve the security and confidentiality of Customer Data in accordance with OCI’s security standards (“Security Measures“).
Section 3.02 Confidentiality of processing. OCI shall ensure that any person who is authorized by OCI to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
Section 3.03 Updates to Security Measures. Customer is responsible for reviewing the information made available by OCI relating to data security and making an independent determination as to whether the Services meets Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that OCI may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Services provided to Customer.
Section 3.04 Security Incident response. Upon becoming aware of a Security Incident, OCI shall: (i) notify Customer without undue delay, and where feasible, in any event no later than 48 hours from becoming aware of the Security Incident; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer; and (iii) promptly take reasonable steps to contain and investigate any Security Incident. OCI’s notification of or response to a Security Incident under this Section 4.4 shall not be construed as an acknowledgment by OCI of any fault or liability with respect to the Security Incident.
Section 3.05 Customer responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
Article IV. Security Reports and Audits
Section 4.01 Audit rights. OCI shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer in order to assess compliance with this DPA. Customer acknowledges and agrees that it shall exercise its audit rights under this DPA (including this Section 5.1 and where applicable, the SCCs) and any audit rights granted by Data Protection Laws, by instructing OCI to comply with the audit measures described in Sections 5.2 and 5.3 below, and only with reasonable advance notice.
Section 4.02 Security reports. Upon written request, OCI shall supply (on a confidential basis) a summary copy of its most current audit report(s) (“Report“) to Customer, so that Customer can verify OCI’s compliance with the audit standards against which it has been assessed and this DPA.
Section 4.03 Security due diligence. In addition to the Report, OCI shall respond to all reasonable requests for information made by Customer to confirm OCI’s compliance with this DPA, including responses to information security, due diligence, and audit questionnaires, by making additional information available regarding its information security program upon Customer’s written request to email@example.com, provided that Customer shall not exercise this right more than once per calendar year.
Article V. International Transfers
Section 5.01 Data center locations. Customer acknowledges that OCI may transfer and process Customer Data to and in the United States and anywhere else in the world where OCI or its Sub-processors maintain data processing operations. OCI shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws.
Article VI. Return or Deletion of Data
Section 6.01 Deletion on termination. Upon termination or expiration of the Agreement, OCI shall (at Customer’s election) delete or return to Customer all Customer Data (including copies) in its possession or control, except that this requirement shall not apply to the extent OCI is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data OCI shall securely isolate, protect from any further processing and eventually delete in accordance with OCI’s deletion policies, except to the extent required by applicable law.
Article VII. Data Subject Rights and Cooperation
Section 7.01 Data subject requests. As part of the Services, OCI provides Customer with a number of self-service features, that Customer may use to retrieve, correct, delete or restrict the use of Customer Data, which Customer may use to assist it in connection with its obligations under the Data Protection Laws with respect to responding to requests from data subjects via Customer’s account at no additional cost. In addition, OCI shall, taking into account the nature of the processing, provide reasonable additional assistance to Customer to the extent possible to enable Customer to comply with its data protection obligations with respect to data subject rights under Data Protection Laws. In the event that any such request is made to OCI directly, OCI shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact Customer) or legally required, without Customer’s prior authorization. If OCI is required to respond to such a request, OCI shall promptly notify Customer and provide Customer with a copy of the request unless OCI is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent OCI from responding to any data subject or data protection authority requests in relation to personal data for which OCI is a controller.
Section 7.02 Subpoenas and court orders. If a law enforcement agency sends OCI a demand for Customer Data (for example, through a subpoena or court order), OCI shall attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, OCI may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then OCI shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless OCI is legally prohibited from doing so.
Section 7.03 Data protection impact assessment. To the extent required under applicable Data Protection Laws, OCI shall (taking into account the nature of the processing and the information available to OCI) provide all reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws. OCI shall comply with the foregoing by: (i) complying with Section 5 (Security Reports and Audits); (ii) providing the information contained in the Agreement, including this DPA; and (iii) if the foregoing sub-sections (i) and (ii) are insufficient for Customer to comply with such obligations, upon request, providing additional reasonable assistance (at Customer’s expense).
Limitation of Liability
Section 8.01 Each party’s liability taken together in the aggregate arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in the Agreement.
Section 8.02 Any claims made against OCI under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by the Customer entity that is a party to the Agreement.
Section 8.03 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.
Relationship with the Agreement
Section 9.01 This DPA shall remain in effect for as long as OCI carries out Customer Data processing operations on behalf of Customer or until termination of the Agreement (and all Customer Data has been returned or deleted in accordance with Section 7.1 above).
Section 9.02 The parties agree that this DPA shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Services.
Section 9.03 In the event of any conflict or inconsistency between this DPA and the Agreement, the provisions of the following documents (in order of precedence) shall prevail: (i) SCCs; then (ii) this DPA; and then (iii) the Agreement; and then the (iv) the Terms of Service.
Section 9.04 Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.
Section 9.06 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.
Section 9.07 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
Annex A – Details of Data Processing
(a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
(b) Duration of processing: OCI will process Customer Data as outlined in Section 7 (Return or Deletion of Data) of this DPA.
(c) Purpose of processing: OCI shall only process Customer Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Services in accordance with the Agreement; (ii) processing initiated by Customer in its use of the Services; and (iii) processing to comply with any other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement.
(d) Nature of the processing: OCI provides an email service, automation and marketing platform and other related services, as more particularly described in the Agreement.
(e) Categories of data subjects:
- Business contacts (including employees and other personnel) of Customer
(f) Types of Customer Data: Customer may upload, submit or otherwise provide certain personal data to the Services, the extent of which is typically determined and controlled by Customer in its sole discretion, and may include the following types of personal data:
- Members: Identification and contact data (name, email);
(g) Sensitive Data: OCI does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Services.
(h) Processing Operations: Customer Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following processing activities:
- Storage and other processing necessary to provide, maintain and improve the Services provided to Customer pursuant to the Agreement; and/or
- Disclosures in accordance with the Agreement and/or as compelled by applicable law.
Annex B – Standard Contractual Clauses (SCCs)
All defined terms used in this Annex B shall have the meaning given to them in the SCCs unless otherwise defined in this Annex.
Appendix 3 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties.
This Appendix sets out the parties’ interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.
For the purposes of this Appendix, “DPA” means the Data Processing Addendum in place between data importer and data exporter and to which these Clauses are incorporated and “Agreement” shall have the meaning given to it in the DPA.
Clause 5(a): Suspension of data transfers and termination
- The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.
- The parties acknowledge that if data importer cannot provide such compliance for whatever reason, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the Clauses.
- If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).
- If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately. The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.
Clause 5(f): Audit
- Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 5 (Security Reports and Audits) of the DPA.
Clause 5(j): Disclosure of subprocessor agreements
- The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.
- Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably can in connection with such subprocessing agreement to data exporter.
Clause 6: Liability
- Any claims brought under the Clauses shall be subject to the terms and conditions, including but not to limited to, the exclusions and limitations set forth in the Agreement. Notwithstanding the foregoing, in no event shall any party limit its liability with respect to any data subject rights under these Clauses.
Clause 11: Onward subprocessing
- The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled “FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC” the data exporter may provide a general consent to onward subprocessing by the data importer.
- Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 3 (Sub-processing) of the DPA.