This Data Processing Addendum (“DPA”) is incorporated into, and is subject to the terms and conditions of, the Agreement between The GatherAct LLC and the customer entity that is a party to the Agreement as a Member (“Customer”). 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).
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “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” means a Subprocessor;
1.1.4 “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” means the European Economic Area;
1.1.6 “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
126.96.36.199 a transfer of Company Personal Data from the Company to a Contracted Processor; or
188.8.131.52 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” means the Software as a Service (SaaS) services the Company provides.
1.1.10 “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 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.
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
2.1.2 not Process Company Personal Data other than on the relevant Company's documented instructions.
2.2 The Company instructs Processor to process Company Personal Data.
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.
4.1 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.
4.2 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.
5.1 The Data Processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a Sub-processor).
5.2 With this DPA, the Data Processor has the Data Controller's general authorization for the engagement of Sub-processors for the purpose of performing the obligations set out under the Agreement. The Sub-processors, approved by the Data Controller by the signing of this DPA, are listed at https://ltiaas.com/compliance. The Data Processor shall;
5.2.1 maintain an up-to-date list of its Sub-processors on the Data Processor's website at https://ltiaas.com/ (or any future website used by the Data Processor);
5.2.2 update with details of any change in Sub-processors at least 30 days prior to any such change (except to the extent a 30 days' notice is not possible due to an emergency) and notify the Data Controller of such change via the Data Processor's usual e-mail notification process;
5.2.3 provide a copy upon request of the data processing agreement(s) between the Data Processor and the Sub-processors at any given time to the Data Controller.
5.3 The Data Controller may object to such new Sub-processor for justified reasons relating to data protection. In the case of a justified objection, the Parties shall negotiate in good faith to find an alternative solution. If such alternative solution cannot be found and the Data Processor decides to proceed with such Sub-processor, the Data Controller can terminate the Agreement with a notice of 30 days. Neither of the Parties shall be considered in breach of contract in the event of such termination.
6.1 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.
6.2 Processor shall:
6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2.2 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.
7.1 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.
7.2 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.
8. Data Protection Impact Assessment and Prior Consultation 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.
9.1 Subject to this section 9 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.
10.1 Subject to this section 10, 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.
10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
11.1 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.
12.1 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.
12.2 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.
13.1 This Agreement is governed by the laws of Deleware.
13.2 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 Deleware. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Multnomah County, Oregon, waive any objection to jurisdiction or venue in such courts, waive any claim that such forum is an inconvenient forum, and waive the right to a trial by jury.