DATA PROCESSING AGREEMENT

This data processing agreement (“DPA”) is entered into by and between the Client and Custify (as defined in the Master Software and Services Agreement executed by the parties (the “Main Agreement”; each a “Party” and collectively, the “Parties”) as of the Effective Date of the Main Agreement. This DPA forms an integral part of the Main Agreement. By entering into the Main Agreement or by using the Services Client agrees to be bound by this DPA. The Services cannot be used without the Client having had entered into this valid and binding DPA. Under this DPA, the Client shall be the controller and Custify the processor. Any reference to a “controller” hereunder shall be a reference to the Client. Terms with capital letter will have the meaning ascribed to them under this DPA and under the Main Agreement.

This DPA is drafted in accordance with and reflects the standards set out in the Annex to Commission Implementing Decision of 04.06.2021 on standard contractual clauses between controllers and processors under Article 28 (7) of Regulation (EU) 2016/679 of the European Parliament and of the Council (the “Standard Contractual Clauses” or “Clauses”). European Commission’s Standard Contractual Clauses (SCCs) are standardised and pre-approved model data protection clauses that allow controllers and processors to comply with their obligations under EU data protection law and they reflect the highest standard of data protection. European Commission’s SCCs included cannot be modified.

Section 1.

Clause 1. Purpose and scope

  • (a) The purpose of these Clauses is to ensure compliance with Article 28(3) and (4) of 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.
  • (b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679.
  • (c) These Clauses apply to the processing of personal data as specified in Annex II.
  • (d) Annexes I to IV are an integral part of the Clauses.
  • (d) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679.
  • (d) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679.

Clause 2. Invariability of the Clauses

  • (a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
  • (b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3. Interpretation

  • (a) Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  • (b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  • (c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4. Hierarchy

  • (a) In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5. Docking clause

  • (a) Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I.
  • (b) Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I.
  • (c) The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

Section 2.

Clause 6. Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

Clause 7. Obligations of the Parties

  • 7.1 Instructions
    • (a) The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.
    • (b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 or the applicable Union or Member State data protection provisions.
  • 7.2 Purpose limitation The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.
  • 7.3 Duration of the processing of personal data Processing by the processor shall only take place for the duration specified in Annex II.
  • 7.4 Security of processing
    • (a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.
    • (b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  • 7.5 Sensitive data If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.
  • 7.6 Documentation and compliance
    • (a) The Parties shall be able to demonstrate compliance with these Clauses.
    • (b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
    • (c) The processor shall make available to the controller reasonable information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679, subject to confidentiality obligations. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor. The costs incurred by the processor in relation with the audit will be covered by the controller.
    • (d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice and be subject to confidentiality obligations. The costs resulting from the foregoing will be paid by the controller.
    • (e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.
  • 7.7 Use of sub-processors
    • (a) GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list as amended from time to time in accordance with this Clause 7.7(a). The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 15 business days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object. If processor does not receive a written notice of objection and termination in accordance with this section, it will be deemed in good faith that the controller has accepted the change in sub-processors. If the Client does not agree with any new sub-processor, it has the sole right to immediately terminate the Main Agreement and the DPA.
    • (b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the similar data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679.
    • (c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
    • (d) The processor shall remain responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.
    • (e) The processor may agree a third-party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
  • 7.8 International transfers
    • (a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679.
    • (b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 and are hereby authorized to transfer the controller’s personal data to third-countries by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679 provided the conditions for the use of those standard contractual clauses are met, or adequacy decisions.

Clause 8. Assistance to the controller

  • (a) The processor shall promptly notify the controller of any request it has received from the data subject.
  • (b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing.
  • (c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
    • (1)the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
    • (2)the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;
    • (3)the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;
    • (4)the obligations in Article 32 Regulation (EU) 2016/679.
  • (d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

Clause 9. Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 Regulation (EU) 2016/679, where applicable, taking into account the nature of processing and the information available to the processor.

  • 9.1 Data breach concerning data processed by the controller

    In the event of a personal data breach concerning data processed by the controller and the processor, the processor shall assist the controller:

    • (a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
    • (b) in obtaining the following information which, pursuant to Article 33(3) Regulation (EU) 2016/679, shall be stated in the controller’s notification, and must at least include:
      • (1) the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
      • (2) the likely consequences of the personal data breach;
      • (3) the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

        • Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

    • (c) in complying, pursuant to Article 34 Regulation (EU) 2016/679, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.
  • 9.2 Data breach concerning data processed by the processor

    In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

    • (a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
    • (b) the details of a contact point where more information concerning the personal data breach can be obtained;
    • (c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

    Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

    The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.

Section 3. FINAL PROVISIONS

Clause 10. Non-compliance with the Clauses and termination

  • (a)Without prejudice to any provisions of Regulation (EU) 2016/679, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
  • (b)The controller shall be entitled to terminate the DPA insofar as it concerns processing of personal data in accordance with these Clauses if:
    • (1)the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
    • (2)the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679;
    • (3)the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679.
  • (c)The processor shall be entitled to terminate the DPA insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.
  • (d)Following termination of the DPA, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all existing personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

ANNEX I: LIST OF PARTIES

CONTROLLER
CLIENT: as defined in the Main Agreement
Contact person’s name: the controller’s contact is identified in the Main Agreement as the person sinning the Main Agreement
PROCESSOR
CUSTIFY SRL
Address: Zagazului Street, No. 4E, Entrance A, First Floor, ap. 1A, District 1
VAT no: RO38229657
By: PHILIPP WOLF
Title: DIRECTOR
Email: contact@custify.com

ANNEX II: DESCRIPTION OF THE PROCESSING

Processor shall process the personal data received from the controller in accordance with the details below:
Categories of data subjects whose personal data is processed Individuals whose personal data is provided by the controller to the processor by using the Services under the Main Agreement or for the performance of the Main Agreement, and the categories of the data subject(s) whose personal data the controller decides to be processed through the Services, including without limitation Client's (potential) clients, partners, employees, agents, etc.
Categories of personal data processed The Controller determines the categories of data for each Service used under the Main Agreement.
Sensitive data processed (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 specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures. The Controller determines the categories of sensitive data for each Service used under the Main Agreement.
Nature of the processing Includes, without limitation: storage, computer processing and/or deletion, as required for the execution of controller’s instructions in accordance with the Main Agreement, including, without limitation for the purposes of providing professional services, support, back-up, restoration, security and monitoring.
Purpose(s) for which the personal data is processed on behalf of the controller Performing the Main Agreement concluded between the Parties and the provisions and use of the Services.
The controller personal data will also be processed in order to send (electronic) communications to the users, according with the Services’ functionalities and features.
Duration of the processing For the duration of the Main Agreement, or longer when and if required by the applicable law.
For processing by (sub-)processors, also specify subject matter, nature and duration of the processing. Provided in Annex IV.

ANNEX III: TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

1. Technical and organisational measures implemented by the processor
  • Processor has implemented an IT security policy that addresses:
    • - Data integrity and confidentiality;
    • - Security of IT equipment;
    • - Protection against viruses, trojans, malware;
    • - Security measures regarding databases;
    • - Back-up of data, recovery measures, provisions for periodic testing of back-ups;
    • - Security monitoring;
    • - Security incident management;
    • - Change Management;
    • - Classification of data;
    • - Inventory of equipment and software;
    • - Physical security;
    • - Disaster recovery;
    • - Business Continuity.
  • Processor has implemented firewall technologies to limit security risks.
  • Processor does not use production data in test, development, as well as pre-production environments.
  • Processor ensures the secure transmission of personal data inside or outside the internal network using encryption technologies so that it is not intelligible.
  • Processor has installed antivirus programs and intrusion detection systems on computer systems that are updated regularly.
  • Processor continuously reviews the software and hardware used to detect and resolve vulnerabilities and defects.
  • Processor ensures that only those employees who need to carry out a processing of personal data are authorized to do so. The authorization for access to the information systems containing personal data will be granted according to the principles of "need to know" and "minimum privileges".
  • Processor through its user access policy ensures that only identified and logged-in authorized users can access the systems that manage personal data. Each authorized user has only one username.
  • Processor continuously reviews the access rights of authorized users to personal data and system components containing personal data. Access rights will be deactivated if they are not used for at least six months, except for those that have been authorized exclusively for management and technical support. Access rights will also be disabled if the authorized user is disqualified or dis-authorized to access computer systems or to process personal data.
  • Processor has established through the IT security explicit requirements for strong passwords.
  • Processor monitors access to production environments containing personal data to record the link between access and individual user and access to personal data.
  • Processor ensures the secure destruction of personal data through secure erasure procedures to make all personal data unrecoverable.
  • Processor ensures the training and education of authorized users regarding the correct rules of conduct to be adopted for the protection of personal data.
  • Processor has implemented secure code development policies and best practices using Secure Development Lifecycle (SDL) principles.
  • Processor has implemented a procedure for analysing and reporting security breaches.
2. Description of the specific technical and organisational measures to be taken by the processor to be able to provide assistance to the controller:
Processor has implemented the technical and organisational measures described in Section 1. Technical and organisational measures implemented by the processor, of this Annex III. to be able to provide assistance to the controller.
3. For transfers to (sub-)processors, also describe the specific technical and organisational measures to be taken by the (sub-)processor to be able to provide assistance to the controller:
Sub-processors are required, whenever possible and negotiable, under the applicable data processing agreements with processor to implement adequate technical and organisational measures to be able to provide assistance to the controller.

ANNEX IV: LIST OF SUB-PROCESSORS

Processor uses sub-processors to provide its products and to perform the relevant business operations under the Main Agreement. Sub-processors engaged by Custify to provide services are made available or identified upon Client’s request or in the relevant SOW for professional services. The following list of sub-processors is mandatory for Custify to operate its services:

Sub-processor Purpose Storage location Duration of processing
Amazon Web Services EMEA SARL Providing hosting and virtual infrastructure as instructed by the Client, depending on account provisioning location As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules
MongoDB Limited Providing database platform services as instructed by the Client, depending on account provisioning location As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules
Elasticsearch AS Providing database platform services as instructed by the Client, depending on account provisioning location As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules

To provide support and perform other service functions, Custify may also engage the following entities to process personal data on Client’s behalf - however, those are in Client’s control, meaning they are optional services that do not apply to all Clients:

Sub-processor Purpose Storage location (unless modified by the third-party provider) Duration of processing
Slack Technologies Limited Providing messaging and communication tools and services. Only relevant if Client decides to expose PII via support chat. Providing messaging and communication tools and services. Only relevant if Client decides to expose PII via support email. Providing general purpose artificial intelligence services. Only relevant if Client decides to use optional AI services within the product that are opt-in and not mandatory.
Google Ireland Limited as instructed by the Client, depending on account provisioning location as instructed by the Client, depending on account provisioning location as instructed by the Client, depending on account provisioning location
OpenAI Ireland Ltd. As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules As required under the Main Agreement, unless otherwise required by the law or by sub-processor’s binding rules

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