Data Processor Agreement
This Ethnio Processor Data Processing Addendum (“Processor DPA”) shall amend and apply to all of your agreements (“Agreements”) with Ethnio, Inc., (“Ethnio”) to the extent that Ethnio processes as Your processor any personal data originating from the European Economic Area, the United Kingdom and Switzerland (“Your Data”)
Words and expressions used in this Processor DPA but not defined herein shall have the meanings given to such words and expressions in the EU Directive 95/46/EC or, from 25 May 2018, the General Data Protection Regulation (2016/679) (“GDPR”).
“You” refers to the controller who has signed this Processor DPA with Ethnio.
"SCCs" refers to the standard contractual clauses for Processors as approved by the European Commission or Swiss Federal Data Protection Authority (as applicable).
2. Details of the Processing Operations
The subject matter of the processing, including the processing operations carried out by Ethnio on your behalf, the instructions from You to Ethnio, and the security measures deployed by Ethnio, are described in the relevant Agreements between You and Ethnio. Ethnio acts on behalf of and on the instructions of You in carrying out the processing operations.
3. Your Obligations
3.1 You determine the purposes for which Your Data is being or will be processed, and the manner in which they are or will be processed.
3.2 You represent, warrant and agree that with respect to Your Data provided to Ethnio pursuant to this Processor DPA You:
3.2.1 comply with personal data security and other obligations prescribed by Applicable Data Protection Law for controllers;
3.2.2 confirm that the provision of Your Data to Ethnio complies with Applicable Data Protection Law;
3.2.3 have established a procedure for the exercise of the rights of the individuals whose personal data is collected;
3.2.4 only process data that has been lawfully and validly collected and ensure that such data is relevant and proportionate to the respective uses;
3.2.5 ensure that after assessment of the requirements of Applicable Data Protection Law, the security and confidentiality measures implemented are suitable for protection of Your Data against any accidental or unlawful destruction, accidental loss, alteration, unauthorized or unlawful disclosure or access, in particular when the processing involves data transmission over a network, and against any other forms of unlawful or unauthorized processing; and
3.2.6 take reasonable steps to ensure compliance with the provisions of this Processor DPA by Your personnel and by any person accessing or using Your Data on its behalf.
4. Obligations of Ethnio
4.1 Ethnio carries out the processing of Your Data on your behalf.
4.2 Further to the provisions of Article 28 of the GDPR, Ethnio agrees that it will:
4.2.1 process Your Data only on your behalf and in compliance with Your instructions (including relating to international data transfers), including instructions in this Processor DPA and all Agreements between You and Ethnio, unless required to do so by EU or Member State law to which Ethnio is subject;
4.2.2 immediately inform you if in Ethnio’s opinion an instruction from You infringes Applicable Data Protection Law;
4.2.3 implement appropriate technical and organizational security measures as provided for in Your Agreements with Ethnio prior to the commencement of the processing activities for Your Data, maintain such security measures (or better security measures) for the duration of this Processor DPA, and provide You with reasonable evidence of its privacy and security policies;
4.2.4 take reasonable steps to ensure that (i) persons employed by it and (ii) other persons engaged at its place of business who may process Your Data are aware of and comply with this Processor DPA;
4.2.5 comply with confidentiality obligations in respect of Your Data as detailed in all Agreements and take appropriate steps to ensure that its employees, authorized agents and any sub-processors comply with and acknowledge and respect the confidentiality of Your Data, including after the end of their employment, contract or at the end of their assignment;
4.2.6 inform You of:
18.104.22.168 any legally binding request for disclosure of Your Data by a law enforcement authority, unless otherwise prohibited, such as in order to preserve the confidentiality of an investigation by the law enforcement authorities;
22.214.171.124 any personal data breach within the meaning of Applicable Data Protection Law relating to Your Data which may require a notification to be made to a supervisory authority or data subject under Applicable Data Protection Law (“Security Incident”);
126.96.36.199 any relevant notice, inquiry or investigation by a supervisory authority relating to Your Data; and
188.8.131.52 any requests for access to, rectification or blocking of Your Data received directly from a data subject without responding to that request, unless You have authorized a response or such a response is required by law;
4.2.7 provide reasonable co-operation and assistance to You in respect of Your obligations regarding:
184.108.40.206 requests from data subjects in respect of access to or the rectification, erasure, restriction, blocking or deletion of Your Data;
220.127.116.11 the investigation of any Security Incident and the notification to the supervisory authority and data subjects in respect of such a Security Incident;
18.104.22.168 the preparation of data protection impact assessments and, where applicable, carrying out consultations with the supervisory authority;
22.214.171.124 the security of Your Data, including by implementing the technical and organizational security measures detailed in Your Agreements with Ethnio;
4.2.8 if Ethnio is required by law to process Your Data, take reasonable steps to inform You of this requirement in advance of any processing, unless Ethnio is prohibited from informing You on grounds of important public interest; and
4.2.9 upon reasonable request, make available to You information necessary to demonstrate compliance with the obligations in this Clause 4.
4.3 Ethnio shall, upon Your request (not to exceed one request per calendar year) by email to firstname.lastname@example.org, certify compliance with Sections 4-6 of this Processor DPA in writing. Ethnio will provide, upon request, to any customer, a Standard Reporti on Controls at a Service Organization, view our data hosting partner. If a Report does not provide, in Your reasonable judgment, sufficient information to confirm Ethnio’s compliance with the terms of this Processor DPA, then You or an accredited third-party audit firm agreed to by both You and Ethnio may audit Ethnio’s compliance with the terms of this Processor DPA during regular business hours in a manner that is not disruptive to Ethnio’s business, upon reasonable advance notice to Ethnio of no less than 60 days and subject to reasonable confidentiality procedures. You are responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Ethnio expends for any such audit, in addition to the rates for support services performed by Ethnio and any expenses incurred by Ethnio in complying with this Clause 4.3 and Clause 4.2.7. Before the commencement of any such audit, You and Ethnio shall mutually agree upon the timing, duration and scope of the audit, which shall not involve physical access to the servers from which the data processing services are provided. You shall promptly notify Ethnio of information regarding any non-compliance discovered during the course of an audit. You may not audit Ethnio more than once annually.
5. Transfer, Disclosure and Third Parties
5.1 EU Data Transfers. Ethnio agrees to abide by the standard contractual clauses "SCCs" where data is transferred from the EU to the US. Furthermore, in light of the judgment from the Court of Justice of the European Union in Case C-311/18, Ethnio will not rely on the EU-US Privacy Shield as a legal basis for transferring data.
5.2 You acknowledge and agree that (a) Ethnio’s affiliates may be retained as sub-processors and (b) Ethnio and Ethnio’s affiliates may engage third parties in connection with the provision of the data processing services. Ethnio or a Ethnio affiliate shall enter into contractual arrangements with such sub-processors requiring them to guarantee a similar level of data protection compliance and information security to that provided for herein. For the purposes of this Clause 5, You hereby authorise Ethnio to engage sub-processors required to assist Ethnio for the purposes of providing the data processing services.
5.3 A current list of sub-processors for the data processing services is accessible via ethn.io/legal. We will provide reasonable notice to You before we engage a new sub-processor of Your Data, including the date on which the new sub-processor will begin processing Your Data (the “Sub-Processor Effective Date”). You may object to Ethnio’s engagement of a new sub-processor by ceasing to use the applicable product, program or feature prior to the Sub-Processor Effective Date. Your continued use of the applicable product, program or feature on or after the Sub-Processor Effective Date constitutes your acceptance of the new sub-processor.
6. Post-termination obligations
You and Ethnio agree that on the termination of the data processing services, Ethnio and any sub-processors shall, subject to the limitations described in any relevant Agreements, return all of Your Data and copies of such data to You or securely destroy them and demonstrate to Your satisfaction that it has taken such measures, unless applicable law prevents it from returning or destroying all or part of Your Data. In such case, Ethnio or sub-processor agree to preserve the confidentiality of Your Data retained by it and that it will only actively process Your Data after such date in order to comply with the laws to which it is subject.
7. Governing law and jurisdiction
This Processor DPA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the United States.
The parties to this Processor DPA irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Processor DPA or its subject matter or formation (including non-contractual disputes or claims).
In the event of any conflict between the terms of this Processor DPA and any other terms between You and Ethnio, including but not limited to the terms of any Agreements, the terms in this Processor DPA will prevail.
Annex 1: EU Standard Contractual Clauses (processors)
Standard contractual clauses apply for transferring personal data from Ethnio to the European Economic Area, the United Kingdom and Switzerland—processor to controller transfers.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in countries which do not ensure an adequate level of data protection
Ethnio (the “Data Importer”) and Customer (the “Data Exporter”) agree on the following Contractual Clauses (SCCs) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex 1.
Clause 1: Definitions
For the purposes of the Clauses:
- 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the Data Protection Law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2: Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3: Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4: Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the Data Protection Law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the Data Protection Law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures; that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, 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 contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6: Liability
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7: Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8: Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the Data Protection Law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the Data Protection Law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9: Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11: Subprocessing
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Clause 12: Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Liability. Any claims brought under the Clauses shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In no event, shall any party limit its liability with respect to any data subject rights under these Clauses.
Sub-processing. The data importer will ensure that any sub-processor will only access and use personal data to provide the Services as set forth in a written agreement between the data importer and the sub-processor. The data exporter acknowledges that any requirements applicable to the data importer under the Clauses in respect of agreements with sub-processors shall be satisfied in full provided that the sub-processing agreement between the data importer and the sub-processor provides at least the level of data protection required under this Agreement.