Data Processing Agreement (DPA)
This Data Processing Agreement (“Agreement“) forms part of the Terms of Service (“Principal Agreement“) between _____________________ (the “Company”) and Kani Technologies Inc, (referred to as “Desk365”)
(together as the “Parties”)
WHEREAS
(A) Pursuant to the Principal Agreement, Desk365 has agreed to provide its Desk365 Service to the Company. To the extent that Desk365 is processing Company Personal Data as part of the said services, the terms contained in this Agreement will apply.
(B) In respect of all processing of Company Personal Data carried out pursuant to the Principal Agreement, the Company acts as a ‘data controller’ and that Desk365 is the ‘processor’.
(C) 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
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 Desk365 on behalf of Company pursuant to or in connection with the Principal Agreement;
1.1.3 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.4 “EEA” means the European Economic Area;
1.1.5 “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.6 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.7 “Data Transfer” means:
1.1.7.1 a transfer of Company Personal Data from the Company to Desk365; or
1.1.7.2 an onward transfer of Company Personal Data from Desk365 to a Subcontracted Processor, or between two establishments of Desk365, 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);
1.1.8 “Services” means the __________________ services the Company provides.
1.1.9 “Subprocessor” means any person appointed by or on behalf of Desk365 to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Processor” “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 Desk365 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 Desk365 to process Company Personal Data.
3. Desk365 Personnel
Desk365 shall take reasonable steps to ensure the reliability of any employee, agent or contractor of the Desk365 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 Desk365, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4. Security
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, Desk365 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, Desk365 shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Subprocessing
5.1 Desk365 will appoint (or disclose any Customer Personal Data to any) Subprocessors only for the purposes stated in Section 2.2.1.
5.2 Company agrees that Subprocessors noted on this site are authorized by it: https://www.desk365.io/sub-processors. Desk365 will inform the Company of any intended changes concerning the addition or replacement of these Subprocessors.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, Desk365 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 Desk365 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 Desk365 is subject, in which case Desk365 shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Desk365 responds to the request.
7. Personal Data Breach
7.1 Desk365 shall notify Company without undue delay upon Desk365 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 Desk365 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
Desk365 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, Desk365.
9. Deletion or return of Company Personal Data
9.1 Subject to this section 9 Desk365 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.
9.2 This Agreement will terminate automatically on the Cessation Date.
10. Audit rights
10.1 Subject to this section 10, Desk365 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 Desk365 in accordance with this Agreement and applicable law.
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.
10.3 If Company chooses to conduct an independent audit, Company will be responsible for engaging and appointing a suitable auditor. auditor. Company shall be responsible for all costs and fees related to such audit, including all reasonable costs or fees incurred by Desk365 in connection with such audit, the details of which costs or fees, and the basis of its calculation, shall be shared with the Company in advance of any such review or audit.
10.4 Before the commencement of any such on-site audit, Company and Desk365 shall mutually agree upon the scope, timing, and duration of the audit.
10.5 Company shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to (a) avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to Desk365’s premises, equipment, personnel and business while the auditor’s personnel are on those premises in the course of such an audit and (b) ensure compliance with Desk365’s safety and security policies at its premises / with respect to its equipment.
11. Data Transfer
11.1 Desk365 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. Limitation of Liability
12.1 The aggregate liability of Desk365, whether in contract, tort or any other theory of liability, arising out of or related to this Agreement, is subject to the ‘Limitation of Liability’ section in the Principal Agreement.
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 This Agreement is governed by the laws of the State of California, unless required otherwise by applicable Data Protection Law.
14.2 Without prejudice to the rights of data subjects under applicable law, 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 the State of California.
IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below.
Your Company Signature ______________________________
Name: ________________________________
Title: _________________________________
Date Signed: ___________________________
Desk365 Signature ______________________________
Name _________________________________
Title __________________________________
Date Signed ____________________________
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