This Why Unified Data Processing Agreement (“DPA“), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, reflects the parties’ agreement with respect to the terms governing the Processing of Personal Data under your Why Unified Service Agreement and the Why Unified Terms of Service (the “Agreement“). This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement.
The term of this DPA shall follow the term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
1.1 Definitions.
“Authorized Persons” means the persons or categories of persons that the Client authorizes to give Processor personal information processing instructions.
“Business Purpose” means the services described in the Agreement.
“Controller” means the person or entity which determines the purposes and means of the Processing of Personal Data.
“Data Subject” means an individual who is the subject of Personal Information.
“GDPR” means the General Data Protection 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.
“Personal Information” means any information Processor processes for the Client that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in Processor’s possession or control or that Processor is likely to have access to, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
“Processing, processes, or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties.
“Privacy and Data Protection Requirements” means all applicable federal, and state, and foreign laws and regulations relating to the processing, protection, or privacy of the Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means the person or entity which processes Personal Data on behalf of the Controller.
“Security Breach” means any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place to protect it. The loss of or unauthorized access, disclosure, or acquisition of Personal Information is a Security Breach whether or not the incident rises to the level of a security breach under the Privacy and Data Protection Requirements.
“Standard Contractual Clauses (SCC)” means the European Commission’s Standard Contractual Clauses for the transfer of Personal Information from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU, a completed copy of which comprises Appendix B.
1.2 This DPA is subject to the terms of the Agreement and is incorporated into the Agreement. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this DPA.
1.3 The Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Appendices.
2.1 Categories of Data Subjects. This includes Client’s Contacts and other end users including Client’s employees, contractors, collaborators, Clients, leads, suppliers and subcontractors.
2.2 Types of Personal Data. Contact information, the extent of which is determined by Client in its sole discretion, and other Personal Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the Subscription Service.
2.3 Subject-Matter and Nature of the Processing. The subject-matter of Processing of Personal Data by Processor is the provision of the services to the Controller that involves the Processing of Personal Data. Personal Data will be subject to those Processing activities as may be specified in the Agreement
Controller retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Processor.
2.4 Purpose of the Processing. Personal Data will be Processed for purposes of providing the services set out and otherwise agreed to in the Agreement and any applicable Order.
2.5 Duration of the Processing. Personal Data will be Processed for the duration of the Agreement, subject to Section 5 of this DPA.
Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement
Controller shall promptly inform Processor about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
4.1 Limitation. Processor will only process the Personal Information to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Client’s instructions. Processor will not process the Personal Information for any other purpose or in a way that does not comply with this DPA or the Privacy and Data Protection Requirements. Processor must promptly notify the Client if, in its opinion, the Client’s instruction would not comply with the Privacy and Data Protection Requirements.
4.2 Security. Processor will ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Client, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, anonymizing, pseudonymising or encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
4.3 Employees. Processor shall ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
4.4 Assistance. Processor shall provide reasonable assistance to the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.5 Personal Information Breaches. Processor will notify the Controller as soon as practicable after it becomes aware of any of any Security Breach affecting any Personal Information. At the Controller’s request, Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant Security Breaches to competent authorities and/or affected Data Subjects, if Controller is required to do so under the Data Protection Law.
4.6 Compliance with Data Subject Request. Why Unified shall, to the extent legally permitted, promptly notify Client if it receives a request from a Data Subject to access, correct or delete that person’s Personal Data or if a Data Subject objects to the Processing thereof. Additionally, Processor shall at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data.
4.7 Records. Processor shall maintain complete and accurate records and information to demonstrate its compliance with this clause.
4.8 Sub-Processors. Processor shall be entitled to engage sub-Processors to fulfil Processor’s obligations defined in the Agreement only with Controller’s written consent. For these purposes, Controller consents to the engagement as sub-Processors of Processor’s affiliated companies and the third parties listed in Appendix C. For the avoidance of doubt, the above authorization constitutes Controller’s prior written consent to the sub-Processing by Processor for purposes of Clause 11 of the Standard Contractual Clauses.
If the Processor intends to instruct sub-Processors other than the companies listed in Appendix C, the Processor will notify the Controller thereof in writing (email to the email address(es) on record in Processor’s account information for Controller is sufficient) and will give the Controller the opportunity to object to the engagement of the new sub-Processors within 30 days after being notified. The objection must be based on reasonable grounds (e.g. if the Controller proves that significant risks for the protection of its Personal Data exist at the sub-Processor). If the Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective date of termination.
Where Processor engages sub-Processors, Processor will enter into a contract with the sub-Processor that imposes on the sub-Processor the same obligations that apply to Processor under this DPA. Where the sub-Processor fails to fulfil its data protection obligations, Processor will remain liable to the Controller for the performance of such sub-Processors obligations.
Where a sub-Processor is engaged, the Controller must be granted the right to monitor and inspect the sub-Processor’s activities in accordance with this DPA and the Data Protection Law, including to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations under the sub-Processing contract, where necessary by inspecting the relevant contract documents.
4.9 Data Transfers. Controller acknowledges and agrees that, in connection with the performance of the services under the
Agreement, Personal Data will be transferred to Why Unified Corp in the United States. All transfers will be undertaken in accordance with the Standard Contractual Clauses of Appendix B.
4.10 Deletion or Retrieval of Personal Data. Other than to the extent required to comply with the General Data Processing Regulation, following termination or expiry of the Agreement, Processor will delete all Personal Data (including copies thereof) processed pursuant to this DPA. If Processor is unable to delete Personal Data for technical or other reasons, Processor will apply measures to ensure that Personal Data is blocked from any further Processing.
Controller shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data or to delete stored data. Any additional cost arising in connection with the return or deletion of Personal Data after the termination or expiration of the Agreement shall be borne by Controller.
4.11 Data Protection Officer. Why Unified Corp has appointed a data protection officer. The appointed person may be reached at legal@whyunified.com.
4.12 Audits. Controller may, prior to the commencement of Processing, and at regular intervals thereafter, but no more frequently than annually, audit the technical and organizational measures taken by Processor.
For such purpose, Controller may, obtain information from the Processor, request Processor to submit to Controller an existing attestation or certificate by an independent professional expert, or upon reasonable and timely advance agreement, during regular business hours and without interrupting Processor’s business operations, conduct an on-site inspection of Processor’s business operations or have the same conducted by a qualified third party which shall not be a competitor of Processor.
Processor shall, upon Controller’s written request and within a reasonable period of time, provide Controller with all information necessary for such audit, to the extent that such information is within Processor’s control and Processor is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.
5.1 This DPA will remain in full force and effect so long as the Agreement remains in effect; or Processor retains any Personal Information related to the Agreement in its possession or control (the “Term“).
5.2 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 Information will remain in full force and effect.
APPENDIX A
PERSONAL INFORMATION PROCESSING PURPOSES AND DETAILS
Business Purposes: Why Unified will process Personal Information to perform the Service pursuant to the Agreement and as further instructed by Client in its use of the Services.
Duration of Processing: Subject to Section 8 of the DPA, Why Unified will Process Personal Information for the duration of the Agreement, unless otherwise agreed upon in writing.
Data Subject Types: Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Personal Information Categories: Client may submit Personal Information to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Special Categories of data: The parties do not anticipate the transfer of special categories of data.
Processing operations The objective of Processing of Personal Data by data importer is the performance of the Why Unified Services pursuant to the Agreement.
Identify Processor’s legal basis for receiving Personal Information with cross-border transfer restrictions (select one): Standard Contractual Clauses. See APPENDIX B
APPENDIX B
Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection,
The Client, as defined in the Why Unified Terms of Service (the “data exporter”)
And
Why Unified Corp d/b/a Why Unified of 200 Continental Dr. Suite #401 Newark, DE 19713 (the “data importer”),
Tel: 1 (302) 803-5892 Email legal@whyunified.com
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) 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 Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘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;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘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;
(d) ‘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;
(e) ‘the applicable 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;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) 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 applicable 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;
(b) 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 applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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;
(e) that it will ensure compliance with the security measures;
(f) 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;
(g) 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;
(h) 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;
(i) 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
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
(a) 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;
(b) 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;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) 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;
(f) 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;
(g) 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;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
Clause 7
Mediation and jurisdiction
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
Clause 8
Cooperation with supervisory authorities
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
Clause 12
Obligation after the termination of personal data-processing services
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
Business Purposes: Why Unified will process Personal Information to perform the Service pursuant to the Agreement and as further instructed by Client in its use of the Services.
Duration of Processing: Subject to Section 8 of the DPA, Why Unified will Process Personal Information for the duration of the Agreement, unless otherwise agreed upon in writing.
Data Subject Types: Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Personal Information Categories: Client may submit Personal Information to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Special Categories of data: The parties do not anticipate the transfer of special categories of data.
Processing operations The objective of Processing of Personal Data by data importer is the performance of the Why Unified Services pursuant to the Agreement.
Identify Processor’s legal basis for receiving Personal Information with cross-border transfer restrictions (select one): Standard Contractual Clauses.
APPENDIX C
List of Sub-Processors
Amazon Web Services, Inc.
Google, Inc.
Facebook, Inc.
Twilio, Inc.
Bandwidth Inc.
Zapier Inc.
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