Data Processing Agreement (DPA)

1. Preamble

1.1 Onify AB Data Processing Agreement represents an addendum to the End User License Agreement (EULA) and Service Level Agreement (SLA). Under the European Union General Data Protection Regulation (GDPR), Onify AB, Box 1092, SE-11764 Stockholm has a position of a ‘Processor’ and Onify AB’s users have a position of a ‘Controller’ regarding the personal data collected through the use of Onify AB services.

1.2 Data Processing Agreement represents an integral part of the End User License Agreement and Service Level Agreement.

2. Definitions

2.1 The following definitions explain some of the terminology and abbreviations used throughout this Data Processing Agreement:

• ‘DPA’ refers to this Data Processing Agreement.
• ‘Terms’ refers to the End User License Agreement and Service Level Agreement collectively.
• ‘Processor’ refers Onify AB.
• ‘Controller’ refers to the user of the Onify software licensed under End User License Agreement.
• ‘Processing’ refers to any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated 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.
• ‘Data’ refers to information provided by Controller to the Processor, or collected by the Processor on behalf of the Controller, relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
• ‘Data Subject’ refers to an identified or identifiable natural person to whom Data relates.
• ‘Data Breach’ refers to a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Data transmitted, stored or otherwise processed

3. Processing

3.1 Processor undertakes to process all Data in accordance with GDPR and other applicable laws, statutes and regulations. Nature and the purpose of processing, the types of Data processed and the categories of Data Subjects whose Data is processed are set out in Appendix 2 to this DPA.

3.2 Processor may process the Data only in accordance with the Controller’s documented instructions. Instructions referred to herein are incorporated in the Terms and this DPA and represent the complete documented instructions. Any processing required outside of the scope of these instructions will require prior written agreement between the parties.

3.3 During the term of this DPA Controller shall remain the owner of the Data transferred to the Processor as well as the Data collected by the Processor on behalf of the Controller. Nothing in this DPA shall be understood to transfer the ownership of the Data to the Processor or any other Third-Party.

3.4 Controller warrants that the Data is obtained in accordance with the applicable laws, statutes and regulations and that Processing which Controller requests does not violate any applicable law, statute or regulation.

3.5 Data that the Processor shall process includes such Data which is requested by the Controller on a case by case basis.

3.6 Data may be processed within the duration of this DPA.

4. Personnel

4.1 The Processor shall ensure that all employees, contractors, and other persons operating under the authority of the Processor are bound by a strict confidentiality agreement prior to providing them with an access to the Data.

4.2 The Processor shall take steps to ensure that any person acting under the authority of the Processor who has access to the Data does not process them except on instructions from the Controller.

5. Security

5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects, the Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:

• the pseudonymization and encryption of the Data;
• the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
• the ability to restore the availability and access to the Data in a timely manner in the event of a physical or technical incident;
• a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.

5.2 In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Data transmitted, stored or otherwise processed.

6. Sub-Processor

6.1 The Controller agrees that Processor may engage sub-processors listed in Appendix 1 to this DPA. The Processor shall inform the Controller of any intended changes concerning the addition or replacement of other processors, thereby giving the Controller the opportunity to object to such changes. The Controller may object to such changes in writing within fifteen (15) days from receipt of the notice on changes.

6.2 Where the Processor engages another processor for carrying out specific processing activities on behalf of the Controller, the same Data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act, providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the applicable laws, statutes and regulations. Where that other processor fails to fulfil its Data protection obligations, the Processor shall remain fully liable to the Controller for the performance of that other processor’s obligations.

7. Data Subject rights

7.1 Taking into account the nature of the processing, the Processor shall assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligations, as reasonably understood by the Controller, to respond to requests to exercise Data Subject rights under the GDPR.

7.2 The Processor shall:

• promptly notify the Controller if Processor or Sub-Processor receive a request from a Data Subject under GDPR or other applicable law, statute or regulation in respect of the Data; and
• ensure that the Processor or Sub-Processor do not respond to that request except on the documented instructions of the Controller or as required by applicable laws to which the Processor or Sub-Processor is subject, in which case the Processor shall to the extent permitted by applicable laws inform the Controller of that legal requirement before the Processor or Sub-Processor respond to the request.

8. Data Breach

8.1 The Processor shall notify the Controller without undue delay after becoming aware of a Data Breach affecting the Data, providing the Controller with sufficient information to allow the Controller to meet any obligations to report or inform authorized authorities and Data Subjects where necessary of the Data Breach.

8.2 The Processor shall cooperate with the Controller and take such reasonable commercial steps as are directed by the Controller to assist in the investigation, mitigation and remediation of each such Data Breach.

9. Data Protection Impact Assessment and Prior Consultation

9.1 The Processor shall provide reasonable assistance to the Controller with any Data protection impact assessments, and prior consultations with competent data privacy authorities, which the Controller reasonably considers to be required the GDPR or equivalent provisions of any other applicable law, in each case solely in relation to processing of the Data by, and considering the nature of the processing and information available to, the Processor.

10. Deletion or return of the Data

10.1 Subject to sections 10.2 and 10.3 the Processor and each Sub-Processor if any shall promptly and in any event within three (3) months of the date of receipt of the Data for processing (the "Purge Date"), delete and procure the deletion of all copies of those Data.

10.2 Subject to section 10.3, the Controller may in its absolute discretion by written notice to the Processor no later than seven (7) days prior the Purge Date require Processor and each Sub-Processor if any to return a complete copy of all Data to the Controller by secure file transfer in such format as is reasonably notified by the Controller to the Processor or request that the Data is retained beyond the Purge Date.

10.3 The Processor may retain the Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that the Processor ensures the confidentiality of all such Data and ensures that such Data is only processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

10.4 The Processor shall provide written confirmation to the Controller that the Processor fully complied with this section 10 upon written request of the Controller issued after the expiry of the deadline from section 10.1.

11. Audit rights

11.1 Subject to the provisions of this article 11, and at the Controllers sole expense, the Processor shall make available to the Controller on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Controller or an auditor mandated by the Controller in relation to the processing of the Data. All costs of the audit shall be borne by the Controller and must be scheduled at least one month in advance. The Controller may commence audit only if they have provided a bond or security deposit that will serve to compensate any loss or damages that may be caused by the audit such as ceasing of providing the services or employee work hours spent on the audit. The amount of bond or security deposit shall be agreed beforehand with the Processor.

11.2 Information and audit rights of the Controller only arise under section 11.1 to the extent that the Terms do not otherwise give them information and audit rights meeting the relevant requirements of the GDPR.

12. Final provisions

12.1 Any matter that is not regulated by this DPA shall be governed by the Terms or any Statement of Work or Order concluded or exchanged between the parties to this DPA.

12.2 If any part of this DPA is found to be invalid, illegal or unenforceable in any respect, it will not affect the validity or enforceability of the remainder of the Terms.

12.3 Any failure to exercise or enforce any right or the provision of this DPA shall not constitute a waiver of such right or provision.

12.4 The section titles in the DPA are for convenience only and have no legal or contractual effect.

Appendix 1 - List of approved sub-processors

Appendix 2 - Scope of processing

The purpose of the Processor’s processing of Data on behalf of the Controller is:

• that the Controller is able to utilize the Onify services which are owned and managed by the Processor to collect and process data about the Controller’s users and customers.

The Processor’s processing of Data on behalf of the Controller shall mainly pertain to (the nature of the processing):

• processing Controller’s customer information, storing content on the Processor’s servers or servers belonging to a third-party with which the Data Processor has an agreement with, and to collect and process statistical information about the Controller’s customers.

The processing includes the following types of personal data about data subjects:

• Name, e-mail address, address, and other information about the customers as specified by the Controller

Processing includes the following categories of data subject:

• Persons who engage the services of the Controller, persons included in the Controller’s target market, and other persons of interest to the Controller.

The Processor’s processing of Data on behalf of the Controller may be performed when this Data Processing Agreement commences. Processing has the following duration:

• Processing shall not be time-limited and shall be performed until this Data Processing Agreement is terminated or cancelled by one of the Parties. There are purge periods defined for each specific Data transfer and processing which may be amended upon Controller’s request.