DATA PROCESSING AGREEMENT
1 PURPOSE AND SCOPE
(a) The purpose of this Data Processing Agreement (the “DPA”) is to ensure compliance with the Swiss Federal Act on Data Protection (“FADP”), and, where applicable, other data protection laws (e.g. the European General Data Protection Regulation) (“Applicable Data Protection Laws”), in respect of each law only if and to the extent applicable to the relevant Processing Activity.
(b) For the purposes of this Agreement, the customer is the Data Controller or Controller and Swissprime Technologies AG is the Data Processor or Processor.
(c) This DPA applies with respect to the processing of personal data as specified in Appendix 1 and all terms defined in Appendix 1 shall serve as defined terms throughout this DPA.
2 INTERPRETATION
(a) Where terms are used herein that are defined in Applicable Data Protection Laws, such terms shall have the same meaning as in these Terms.
(b) This DPA shall be read and interpreted in the light of the provisions of Applicable Data Protection Laws, as applicable.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in the Applicable Data Protection Laws, or prejudices the fundamental rights or freedoms of the data subjects.
3 HIERARCHY
In the event of a conflict between this DPA and the provisions of any other agreement between the Parties existing at the time when this DPA are agreed or entered into thereafter, this DPA shall prevail, except where explicitly agreed otherwise in text form.
4 DESCRIPTION OF PROCESSING(S)
The details of the processing operations, and in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the data controller, are specified in Appendix 1.
5 OBLIGATIONS OF THE PARTIES
5.1 GENERAL
(a) The data processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union, Member State or Swiss law to which the processor is subject. Such instructions are specified in Appendix 1. Subsequent instructions may also be given by the data controller throughout the duration of the processing of personal data. Such instructions shall always be documented.
(b) The data processor shall immediately inform the data controller if instructions given by the data controller, in the opinion of the data processor, infringe applicable data protection provisions, e.g. the FADP.
5.2 PURPOSE LIMITATION
The data processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Appendix 1.
5.3 ERASURE OR RETURN OF DATA
(a) Processing by the data processor shall only take place for the duration specified in Appendix 1.
(b) Upon termination of the provision of personal data processing services or termination pursuant to Clause 8, the data processor shall return all the personal data to the data controller and delete existing copies unless Applicable Data Protection Laws or any other regulation requires storage of the personal data.
5.4 SECURITY OF PROCESSING
(a) The data processor shall implement the technical and organizational measures (TOM) to ensure the security of the personal data, including protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (personal data breach). In assessing the appropriate level of security, they shall in particular take due account of the risks involved in the processing, the nature of the personal data and the nature, scope, context and purposes of processing.
(b) In the event of a personal data breach concerning data processed by the data processor, it shall notify the data controller without undue delay and at the latest within 48 hours after having become aware of the breach. Such notification shall contain the details of a contact point where more information concerning the personal data breach can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and data records concerned), its likely consequences and the measures taken or proposed to be taken to mitigate its possible adverse effects. Where, and insofar as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall be provided as it becomes available without undue delay.
(c) The data processor shall cooperate in good faith with and assist the data controller in any way necessary to enable the data controller to notify, where relevant, the competent data protection authority and the affected data subjects, taking into account the nature of processing and the information available to the data processor.
(d) The data processor shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. The data processor shall ensure that persons authorized to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
5.5 DOCUMENTATION AND COMPLIANCE
(a) The Parties shall be able to demonstrate compliance with this DPA.
(b) The data processor shall deal promptly and properly with all reasonable inquiries from the data controller that relate to the processing under this DPA.
(c) The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations set out in this DPA and that are stemming directly from the Applicable Data Protection Laws and at the data controller’s request, allow for and contribute to reviews of data files and documentation or of audits of the processing activities covered by these Clauses, in particular if there are indications of non-compliance.
(d) The data controller may choose to conduct the audit by itself, to mandate, at its own cost, an independent auditor or to rely on an independent audit mandated by the data processor. Where the data processor mandates an audit, it has to bear the costs of the independent auditor. The data controller’s audit, access, and inspection rights under this Clause are limited to the data processor’s records only (including inter-alia the registers of personal data processing activities, the registers of recipients of personal data) and does not apply to Processor’s physical premises. Any audit and request for information shall be limited to information necessary for the purposes of this DPA and shall give due regard to the data processor’s confidentiality obligations and legitimate interest to protect business secrets.
(e) The data processor and data controller shall make the information referred to in this clause, including the results of any audits, available to the competent supervisory authority on request if and to the extent required by Applicable Data Protection Laws.
(f) The data controller shall reimburse the data processor for the expenses incurred from the activities pursuant to lit. b to d above, unless the services are based on a reasonable suspicion of non-compliance with the Applicable Data Protection Laws or cause a unreasonable expense.
5.6 USE OF SUB-PROCESSORS
(a) The data processor has the data controller’s general authorization for the engagement of sub-processors. The list of sub-processors the data processor can be found in Appendix 1. The data processor shall inform in text form the data controller of any intended changes of that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). Such objection shall not be unreasonable raised. The Parties shall keep the list up to date.
(b) Where the data processor engages a sub-processor for carrying out specific processing activities (on behalf of the data controller), it shall do so by way of a contract which imposes on the sub-processor the same obligations as the ones imposed on the data processor under this DPA. The data processor shall ensure that the sub-processor complies with the obligations to which the data processor is subject pursuant to this DPA and the Applicable Data Protection Laws.
(c) The data processor shall remain fully responsible to the data controller for the performance of the sub-processor’s obligations under its contract with the data processor. The data processor shall notify the data controller of any failure by the sub-processor to fulfil its obligations under that contract.
5.7 INTERNATIONAL TRANSFERS
(a) Any transfer of data to a “Third Country” (any country outside of the EU/EEA and Switzerland) or an international organization by the data processor shall be undertaken only if authorized in accordance with Appendix 1 and shall take place in compliance with the Applicable Data Protection Laws. Standard Contractual clauses may have to be added and a Data Protection Impact Assessment to be done leading to additional requirements to be adjusted.
(b) The data controller agrees that where the data processor engages a sub-processor in accordance with Clause 5.6 for carrying out specific processing activities (on behalf of the data controller) in a Third Country and those processing activities involve transfer of personal data, the processor and the sub-processor may use adopted standard contractual clauses in order to comply with the requirements of the Applicable Data Protection Laws, provided the conditions for the use of those clauses are met.
6 DATA SUBJECT RIGHTS
(a) The data processor shall promptly notify the data controller about any request received directly from the data subject. It shall not respond to that request itself, unless and until it has been authorized to do so by the data controller.
(b) The data processor shall assist without further costs the data controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights, namely:
(1) the right to be informed when personal data are collected from the data subject,
(2) the right to be informed when personal data have not been obtained from the data subject,
(3) the right of access by the data subject,
(4) the right to rectification,
(5) the right to erasure (‘the right to be forgotten’),
(6) the right to restriction of processing,
(7) the notification obligation rectification or erasure of personal data or restriction of processing,
(8) the right to data portability,
(9) the right to object,
(10) the right not to be subject to a decision based solely on automated processing, including profiling.
(c) In addition to the data processor’s obligation to assist the data controller pursuant to Clause 6(b), the data processor shall furthermore assist the data controller in ensuring compliance with the following obligations, taking into account the nature of the processing and the information available to the data processor:
(1) The obligation to notify a personal data breach to the competent supervisory authority without undue delay after having become aware of it, (unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
(2) 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;
(3) 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;
(4) the obligation to consult the competent supervisory authority 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 data controller to mitigate the risk.
(d) The data controller shall reimburse the data processor for any expenses incurred as a result of the performance of the aforementioned rights, unless the performance is based on a reasonable suspicion of non-compliance with the applicable data protection legislation or the expense is unreasonable.
7 NOTIFICATION OF PERSONAL DATA BREACHES
(a) In the event of a personal data breach, the data processor shall cooperate in good faith with and assist the data controller in any way necessary for the data controller to comply with its obligations under the Applicable Data Protection Laws, taking into account the nature of processing and the information available to the processor.
(b) The data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, where relevant. The data processor shall be required to assist in obtaining in particular the following information which, pursuant to the Applicable Data Protection Laws (e.g. Article 22(2) of the FADP), as applicable, shall be stated in the data controller’s notification:
(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 data controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
8 TERMINATION
(a) Without prejudice to any provisions of the Applicable Data Protection Laws, as applicable, in the event that the data processor is in breach of its obligations under this DPA, the data controller may instruct the data processor to temporarily suspend the processing of personal data until the latter complies with this DPA or the contract is terminated. The data processor shall promptly inform the data controller in case it is unable to comply with this DPA, for whatever reason.
(b) The data controller shall be entitled to terminate this DPA where:
(1) the processing of personal data by the data processor has been temporarily suspended by the data controller pursuant to point (a), data processor’s breach is material, and compliance with this DPA is not restored within a reasonable time and in any event within one month;
(2) the data processor is in substantial or persistent breach of this DPA or its obligations under the Applicable Data Protection Laws, as applicable, and such breach cannot be reasonably expected to be remedied;
(3) the data processor fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under this DPA or under the Applicable Data Protection Laws, as applicable.
(c) This DPA shall remain in full force and effect so long as the Agreement concluded between the Parties remains in effect. Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Agreement in order to protect Personal Data shall remain in full force and effect.
9 LIABILITY AND INDEMNITY
Notwithstanding anything to the contrary in this Agreement DPA or any other agreement between the parties, the data processor shall, immediately on demand, fully indemnify the data controller against all costs, claims, demands, expenses (including reasonable legal costs), losses, actions, proceedings and liabilities of any nature arising from or incurred by data controller or its affiliates in connection with any failure of the data processor or any third party appointed by the data processor to comply with the provisions of this Agreement and/or applicable data protection law in respect of its processing of personal data for the data controller.
10 PLACE OF JURISDICTION AND APPLICABLE LAW
The place of jurisdiction is the registered office of the responsible party. Swiss substantive law is applicable.
11 MISCELLANEOUS
As far as not agreed herein the Agreement shall apply.
APPENDIX 1
| Processing Purpose | Execution of the contractual obligations incl. Additional Documents Terms of Use and Privacy Policy (the "Base Agreement") |
| Duration of processing | As long as required for the Base Agreement |
| Categories of data subjects* | Employees or members of the data controller Other persons with access rights |
| Categories of personal data | Contact details (first name, last name, e-mail), IP address |
| Place of storage & processing | At the business address of the data processor and its approved sub-processors as indicated in this Data Processing Agreement |
| On-premise audits | No |
* Categories of data subjects shall be determined by the data controller without any action on the part of the data processor. The list is given by way of example.
SUBPROCESSOR
| Company name of the service provider | Place of processing | Type of service |
|---|---|---|
| Microsoft Ireland Operations Limited | EU (Data transfer by Microsoft to USA possible) | Storage of data |
| Twilio Inc. | USA | SMS and Email Services |
| Stripe Payments Europe, Limited | USA | Payment Provider |
| Zendesk, Inc. | USA | Helpdesk Provider |
| SwissPass | Switzerland | SwissPass Verification Service |