Data Processing Addendum
This Data Processing Addendum ("DPA" or “Addendum”), forms part of the Master Service Agreement or User Agreement or other written or electronic agreement (“Agreement”) between Formidium Corp. (“Formidium") and you (the "Client") and is supplemental to and forms an integral part of the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement ("Effective Date"). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
In the course of providing the services to Client pursuant to the Agreement, Formidium may process Personal Data (as defined below) on behalf of Client and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
This DPA is subject to the terms of Agreement, and in the event of conflict, an Annex to this DPA shall prevail over the DPA, which in turn shall prevail over the Agreement.
1.Definitions
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with Formidium.
“Client Data” means data provided by or on behalf of the Client or the Client End Users via the Services under the Agreement.
“Client Data Incident” means a breach of data security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Client Data transmitted, stored or otherwise processed.
"Data Controller" means an entity that determines the purposes and means of the processing of Personal Data.
"Data Processor" means an entity that processes Personal Data on behalf of a Data Controller
“Data Protection Laws and Regulation” means and includes EU GDPR or any other data protection laws and regulations applicable to the the Client.
"Data Subject" means the identified or identifiable living individual to whom Personal Data relates.
“EEA” means the European Economic Area.
“End Users” – means the natural or legal person who uses the Services.
“GDPR” means 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).
"Personal Data" means any information relating to an identified or identifiable natural person
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Security Incident” means a breach of data security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed.
“Security Documentation” means the policies and procedures related to information security.
“Service Partner” means a company that provides services to Formidium in a way that aligns with Formidium’s objectives.
“Services” means Services provided under the Agreement (as defined therein) or access to any Formidium’s software or products under the Agreement.
“Sub-processor” means any Processor engaged by Formidium.
2.Scope and Applicability of this DPA
This DPA applies where and only to the extent that Formidium processes personal data that originates from the EEA and/or that is otherwise subject to GDPR on behalf of The Client as Data Processor in the course of providing Services pursuant to the Agreement.
2.1. Details of the ProcessingThe subject-matter of Processing of Personal Data by Formidium is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data (including special categories of personal data) and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
2.2. Roles of the PartiesThe parties acknowledge and agree that with regard to the Processing of Personal Data, the Client is the Controller, Formidium is the Processor of personal data except when the Client is a Processor of EU Personal Data, then Formidium is a sub processor.
Each party will comply with the obligations applicable to it under the GDPR with respect to the processing of that Personal Data.
2.3. Authorization by Third Party ControllerIf GDPR applies to the processing of Personal Data and the Client is a processor, the Client warrants to Formidium that the Client’s instructions and actions with respect to that the Client Personal Data, including its appointment of Formidium as another processor, have been authorized by the relevant controller.
3. Data Processing
3.1. Client’s Processing of Personal DataThe Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, the Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. the Client shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Client acquired Personal Data.
3.2. Certification by ClientThe Client certifies that it has obtained the written consent, affirmative opt-in, other written authorisation (“Consent") from applicable individuals in the European Union or has another legitimate, legal basis for processing of Personal Data including making accessible of this personal data to Formidium and also for onward transfer of this data.
3.3. Processing of Personal DataFormidium shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with the Client’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Data Subjects in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by the Client (e.g., via email) where such instructions are consistent with the terms of the Agreement.
This Addendum and the agreement are the Client's complete instructions to Formidium for the processing of EU Personal Data. Any alternative or additional instructions may only be by written amendment to this Addendum or via email.
The Client will have the exclusive authority to determine the purpose for and means of processing EU Personal Data.
Formidium will comply with Data Protection Laws and Regulation, including but not limited to, the GDPR, to the extent such laws apply to Formidium in its role as a Processor.
3.4. Data Protection Impact AssessmentUpon the Client’s request, Formidium shall provide the Client with reasonable cooperation and assistance needed to fulfil the Client’s obligation under the GDPR to carry out a data protection impact assessment related to the Client’s use of the Services
4. Rights of Data Subjects
4.1. Data Subject RequestFormidium shall, to the extent legally permitted, promptly notify the Client if Formidium receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
Taking into account the nature of the Processing, Formidium shall assist the Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent the Client, in its use of the Services, does not have the ability to address a Data Subject Request, Formidium shall upon the Client’s request provide commercially reasonable efforts to assist the Client in responding to such Data Subject Request, to the extent Formidium is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, the Client shall be responsible for any costs arising from Formidium’s provision of such assistance.
5. Return or Deletion of Data
Upon termination or expiration of the Agreement, Formidium shall (at the Client's election) delete or return to the Client all the Client Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Formidium is required by Data Protection Laws and Regulation to retain some or all of the Client Data, or to Client Data it has archived on back-up systems, which Client Data Formidium shall securely isolate and protect from any further processing, except to the extent required by Data Protection Laws and Regulation.
6. Tracking Technologies
The Client acknowledges that in connection with the performance of the Services, Formidium employs the use of cookies, unique identifiers, web beacons and similar tracking technologies ("Tracking Technologies"). The Client shall maintain appropriate notice, consent, opt-in and opt-out mechanisms as are required by Data Protection Laws to enable Formidium to deploy Tracking Technologies lawfully on, and collect data from, the devices of Data Subject in accordance with and as described in the Formidium Cookie Statement.
7. Sub processing
7.1. Appointment of Authorized Sub-processorsThe Client agrees that Formidium may engage third party sub-processors to process Client Data (“Sub-processor”). The Client authorizes Formidium to engage Sub -processors to Process the Client’s Personal Data.
Sub-processor ObligationsWhen engaging any Sub-processor, Formidium will ensure via a written contract that:
- the Sub-processor only accesses and uses Personal Data to the extent required to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including these Terms);
- if the GDPR applies to the processing of Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in these Terms, are imposed on the Sub-processor; and
- Formidium will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Formidium to breach any of its obligations under this DPA.
Written agreements with each Sub-processor shall contain data protection obligations not less protective than those in this Agreement with respect to the protection of Client Data to the extent applicable to the nature of the Services provided by such Sub-processor.
7.2. List of Current Sub-processors and Notification of New Sub-processorsOn request, Formidium shall make available to the Client the current list of Sub-processors for the Services identified.
The Client may object to Formidium’s use of a new Sub-processor by notifying Formidium promptly in writing within ten (10) business days after receipt of Formidium’s notice.
7.3. LiabilityFormidium shall be liable for the acts and omissions of its Sub-processors to the same extent Formidium would be liable if performing the services of each Sub-processor directly under the terms of this Data Protection Addendum, except as otherwise set forth in the Agreement.
8. Security Measures
Formidium will implement and maintain technical and organizational measures to protect Client Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access in accordance with Formidium's security standards including, as appropriate, the measures required pursuant to Article 32 of the GDPR. Such security measures include measures to encrypt personal data; to help ensure ongoing confidentiality, integrity, availability and resilience of Formidium’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness.
8.1. Confidentiality of processingFormidium shall ensure that any person who is authorized by Formidium to process Client Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality.
Formidium shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities.
Limitation of Access. Formidium shall ensure that Formidium’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
8.2. Security Certifications and ReportsFormidium will do the following to evaluate and help ensure the continued effectiveness of the Security Measures:
- SOC 2 audit by Certified Public Accountant
If GDPR applies to the processing of Personal Data, Formidium will allow the Client or an independent auditor appointed by the Client to conduct audits (including inspections) to verify Formidium’s compliance with its obligations under these Terms.
The Client may also conduct an audit to verify Formidium’s compliance with its obligations under these Terms by reviewing the Security Documentation
(which reflects the outcome of audits conducted by Formidium’s Third Party Auditor).
9. Incident Management
Formidium maintains security incident management policies and procedures in accordance with GDPR.
9.1. Security Incident ResponseUpon becoming aware of a Security Incident, Formidium shall notify the Client without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by the Client.
Formidium shall make reasonable efforts to identify the cause of such Client Data Incident and take those steps as Formidium deems necessary and reasonable in order to remediate the cause of such a Client Data Incident to the extent the remediation is within Formidium’s reasonable control. The obligations herein shall not apply to incidents that are caused by the Client
9.2. No Acknowledgement of Fault by FormidiumFormidium’s notification of or response to a Client Data Incident under this Section will not be construed as an acknowledgement by Formidium of any fault or liability with respect to the Data Incident.
9.3. Client ResponsibilitiesNotwithstanding the above, the Client agrees that except as provided by this DPA, the Client is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of the Client Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Client Data uploaded to the Services.
10. International Transfers
10.1. Data centre locationsFormidium may transfer and process Client Data anywhere in the world where Formidium, its Affiliates
or its Sub-processors maintain data processing operations. Formidium shall at all times provide an adequate level of protection for the Client Data processed, in accordance with the requirements of Data Protection Laws.
Formidium shall inform the Client of any international transfers of Personal Data in advance of making the transfer and shall assist Service Partner in assessing the parties' respective obligations to comply with Data Protection Laws and Regulations.
The Parties agree that by executing this DPA, they shall be bound by the terms of Standard Contract Clauses, and the Appendixes attached thereto, as applicable, all of which are attached to this DPA.
10.2. Standard Contract ClausesThe standard contract clauses are in Annex 1
11. Miscellaneous
- Except as amended by this DPA, the Agreement will remain in full force and effect
- If there is a conflict between the Agreement and this DPA, the terms of this DPA will control
- Any claims brought under this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
- The Client may terminate this DPA and the Standard Contractual Clauses at the Client's discretion upon Formidium's receipt of the Client's written notice of termination.
- This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions set forth in the Agreement, unless otherwise required by Data Protection Laws and Regulations.
Schedule 1
This Schedule 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
Subject MatterThe subject matter and duration of the processing of Personal Data are set out in the Agreement
Duration of ProcessingThe Term plus the period from the expiry of the Term until deletion of all Client Data by Formidium in accordance with the Agreement.
Nature and purpose of the processingFormidium will process Personal Data for the purposes of providing the Services to the Client in accordance with the Agreement.
Type of Personal Data and categories of Data Subject to be processed;- Data relating to individuals provided to Formidium via the Services, by (or at the direction of) the Client or by the Client’s End Users.
- Data Subjects include the individuals about whom data is provided to Formidium via the Services.
The Client may submit Personal Data to the Services, the extent of which is determined and controlled by the Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
- First and last name
- Contact information (company, email, phone, physical address)
- Personal life data
- Connection data
- IP Address and other cookie data
- Financial Information
The obligations and rights of Company and Affiliates are set out in the Agreement and this Addendum.
ANNEX 1: STANDARD CONTRACTUAL CLAUSES
Transfer from Controller to Processor
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) (1) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 – Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance
with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of Data Protection Laws and Regulation applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far 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, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the
purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’),
the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with Data Protection Laws and Regulation
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Republic of Ireland.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of _____ (specify Member State).
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts. ________________________________________
(1) Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
(2) This requires rendering the data anonymous in such a way that the individual is no longer identifiable by anyone, in line with recital 26 of Regulation (EU) 2016/679, and that this process is irreversible.
(3) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
(4) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
(5) See Article 28(4) of Regulation (EU) 2016/679 and, where the controller is an EU institution or body, Article 29(4) of Regulation (EU) 2018/1725.
(6) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purposes of these Clauses.
(7) This includes whether the transfer and further processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences.
(8) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
(9) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
(10) That period may be extended by a maximum of two more months, to the extent necessary taking into account the complexity and number of requests. The data importer shall duly and promptly inform the data subject of any such extension.
(11) The data importer may offer independent dispute resolution through an arbitration body only if it is established in a country that has ratified the New York Convention on Enforcement of Arbitration Awards.
(12) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.________________________________________
ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
1. Name: …
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: …
Signature and date: …
Role (controller/processor): …
2. …
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
1. Name: …
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: …
Signature and date: …
Role (controller/processor): …
2. …
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
You may submit Personal Data in the course of using the Service, the extent of which is determined and controlled by you in your sole discretion, and and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Fund manager, Investor, Beneficial owner, Existing clients
Categories of personal data transferred
You may submit Personal Data in the course of using the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include but is not limited to the following
categories of Personal Data:
Personal details, Contact details, Bank details, Employment details, Family details, KYC details
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The parties do not anticipate the transfer of sensitive data.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous
Nature of the processing
Personal Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:
Collection, Storage, Use, Disclosure by transmission, Erasing, Destruction, Transferring or any other processing necessary to provide, maintain and improve the Services also Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by
Data Protection Laws and Regulation
Purpose(s) of the data transfer and further processing
We will Process Personal Data as necessary to provide the Services pursuant to the Agreement, and as further instructed by you in your use of the Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Subject to the ' Return or deletion of Personal Data' section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Formidium shall hire sub-processors to provide limited services on Formidium’s behalf. The sub-processor shall process only Personal Data as necessary to provide limited or ancillary services pursuant to
the Agreement.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
The data exporter’s competent supervisory authority will be determined in accordance with the GDPR
For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as the competent supervisory authority is either (i) where the the Client is established in an EU Member
State, the supervisory authority responsible for ensuring the the Client's compliance with the GDPR; (ii) where the Client is not established in an EU Member State but falls within the extraterritorial
scope of the GDPR and has appointed a representative, the supervisory authority of the EU Member State in which the Client's representative is established; or (iii) where the Client is not established in
an EU Member State but falls within the extraterritorial scope of the GDPR without having to appoint a representative, the supervisory authority of the EU Member State in which the Data Subjects are
predominantly located.
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
The technical and organizational measures (TOMs) provided below apply to all standard service offerings provided by Formidium except where the Client is responsible for the security and privacy TOMs
o The databases used in Seamless and CSD are encrypted at the volume level.
o All-access to servers (data processing systems) is restricted to authorized personnel only. Any access can only be provided through the approval process. Dedicated teams are there to make sure of system resilience through monitoring of systems/services.
o DR plan in place to restore the application in case of a disaster.
o Regular VAPT audits, Patch Management and Endpoint Management are done.
o Regular monitoring of all Cloud Services.
o User authentication and authorization are handled at the application level. User credentials are stored in encrypted format in DB.
o All the data is transmitted over a secure HTTPS layer.
o All the E-mail data are protected during transmission.
o All data is stored in Mongo DB where encrypted volumes are available.
o The data is stored in the cloud.
o All data are stored in Cloud Services, and they are encrypted.
o Events such as CPU usage, RAM usage, and Memory usage are monitored through AWS CloudWatch alarms. Any activity performed on AWS services is logged in Cloudtrail.
o Formidium uses Azure Sentinel for monitoring all events and logs.
o All the laptops, desktops and network devices are configured as per recommendations.
o Formidium conducts monthly Cyber security sessions at the organization level.
o Formidium has a data normalization engine that captures only the required data fields and ensures data quality.
o Formidium is SOC 2 certified.
o DB backups are stored in AWS S3 buckets with a retention policy setup at the S3 configuration.
o Formidium has a retention policy in Office 365 and Barracuda.
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for
transfers from a processor to a sub-processor, to the data exporter
o Formidium will restrict the Sub-processor’s access to Client Data only to what is necessary to provide or maintain the Services in accordance with the Documentation, and Formidium will prohibit the
Sub-processor from accessing Client Data for any other purpose;
o Formidium will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor performs the same data processing services provided by Formidium under this DPA, Formidium
will impose on the Sub-processor the same contractual obligations that Formidium has under this DPA.
ANNEX III
LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
1. Name:
Address: …
Contact person’s name, position and contact details: …
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): …
2.Name:
Address: …
Contact person’s name, position and contact details: …
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): …
s3.……