Introduction
WHEREAS
(A) The Company acts as a Data Controller.
(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
(C) The Data Processor may also act as a Data Controller solely with respect to Personal Data where such role is determined at the discretion of the Company, including through configuration or explicit instruction, subject to applicable Data Protection Laws.
(D) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
(E) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 Definition Scope: Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 Agreement Definition: "Agreement" means this Data Processing Agreement and all Schedules;
1.1.2 Company Data: "Company Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;
1.1.3 Contracted Processor: "Contracted Processor" means a Subprocessor;
1.1.4 Data Laws: "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 EEA Meaning: "EEA" means the European Economic Area;
1.1.6 EU Laws: "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 GDPR Meaning: "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.8 Data Transfer: "Data Transfer" means:
- 1.1.8.1 Company to Processor: a transfer of Company Personal Data from the Company to a Contracted Processor; or
- 1.1.8.2 Internal Transfers: an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.9 Services Scope: "Services" means the software, tools, infrastructure, and related services provided by the Company for data processing, analysis, workflow automation, or delivery as specified in the Principal Agreement.
1.1.10 Subprocessor Definition: "Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 GDPR Terms: The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Processing of Company Personal Data
2.1 Processor Obligations: Processor shall:
- 2.1.1 Legal Compliance: comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
- 2.1.2 Follow Instructions: not Process Company Personal Data other than on the relevant Company's documented instructions.
2.2 Instruction Basis: The Company instructs Processor to process Company Personal Data.
3. Dual Role of Processor
3.1 Role Acknowledgment: The Parties acknowledge that the Processor may act as both a Data Processor and, at the discretion of the Company, as a Data Controller.
3.2 As Processor: The Processor acts as a Data Processor when processing Personal Data solely on behalf of the Company and in accordance with the Company's documented instructions.
3.3 As Controller: The Processor acts as a Data Controller only where the Company has explicitly authorized or configured such processing, including for purposes such as system logging, usage diagnostics, or secure delivery of services, and only to the extent necessary for those purposes.
3.4 Controller Compliance: Where acting as a Data Controller, the Processor shall comply independently with applicable Data Protection Laws and shall, upon request, provide the Company with details of the processing conducted under this capacity.
3.5 Limited Use: Unless expressly agreed otherwise, the Processor shall not use Company Personal Data for its own purposes beyond those explicitly authorized by the Company.
4. Processor Personnel
4.1 Access Controls: Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security
5.1 Safeguard Measures: Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2 Risk Consideration: In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6. Subprocessing
6.1 Subprocessor Use: The Company authorizes the Processor to engage sub-processors. The Processor maintains a current list of authorized sub-processors on our subprocessors page.
The Processor shall ensure that all sub-processors are contractually bound to obligations no less protective than those set out in this Agreement with respect to the protection of Company Personal Data.
7. Data Subject Rights
7.1 Assist Company: Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 Requests Handling: Processor shall:
- 7.2.1 Notify Company: promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
- 7.2.2 No Unauthorized Response: ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach
8.1 Notify Company: Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Support Remediation: Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
9.1 Provide Assistance: Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Company Personal Data
10.1 Delete on Exit: Subject to this section 10 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.
10.2 Confirm Deletion: Processor shall provide written certification to Company that it has fully complied with this section 10 within 10 business days of the Cessation Date.
11. Audit rights
11.1 Support Audits: Subject to this section 11, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.
11.2 Conditional Rights: Information and audit rights of the Company only arise under section 11.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
12. Data Transfer
12.1 Transfer Conditions: The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
13. General Terms
13.1 Confidentiality: Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement ("Confidential Information") confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
13.2 Notices: All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
14. Governing Law and Jurisdiction
14.1 Governing Law: This Agreement is governed by the laws of the State of Washington.
14.2 Jurisdiction: Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of King County, Washington, subject to possible appeal to the appropriate appellate courts within the State of Washington.
15. Contact Us
If you have questions about this Data Processing Agreement or our data processing practices, please contact us at:
Email: hello@strive.us
Address:
Strive Software, Inc.
600 1st Ave Ste 330 PMB 94465
Seattle, WA 98104
United States