Customer Data Processing Agreement

Last Modified: October 14, 2021

Explanatory note: Planhat is a company incorporated in Sweden, with a subsidiary incorporated in Delaware, US. Depending on the place of incorporation and location of the Customer and the location of the individuals relating to whom the Customer shares data with Planhat in the Services, various privacy laws will apply.

This DPA is largely based on the standard contractual clauses between controllers and processors released by the European Commission on June 4, 2021 to ensure full GDPR compliance between a controller and a processor. We have modified the standard clauses to cater for privacy laws outside of Europe, as they may be applicable, and to reflect the business relationship between Planhat and our Customers.

DATA PROCESSING AGREEMENT

1. Background

This Data Processing Agreement, (“DPA”) forms part of the agreement between Planhat and Customer for the purchase of services from Planhat (the “Agreement”) and is entered into to reflect the parties’ agreement relating to the processing of Personal Data under Applicable Data Protection Laws (as defined below).

While providing the Services to Customer under the Agreement, Planhat may process Personal Data on behalf of Customer. The parties agree to comply with the provisions of this DPA with respect to any Personal Data. By signing the Agreement, Customer enters into this DPA on behalf of itself and in the name and on behalf of its affiliates, if and to the extent Planhat processes Personal Data for such affiliates.

2. Definitions

All capitalized terms not defined herein shall have the meaning set forth in the Agreement and where terms defined in GDPR are used (such as controller, processing and data subject), those terms shall have the same meaning as in GDPR unless defined in this DPA.

Applicable Data Protection Laws” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states, and any other jurisdictions applicable to the Processing of Personal Data under the Agreement.

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), including as implemented or adopted under the laws of the United Kingdom.

Personal Data” means any information supplied by Customer to Planhat relating to an identified or identifiable natural person as set out under Applicable Data Protection Laws.

Processor” means Planhat AB and its fully owned subsidiaries and shall be interpreted to also include, as applicable, “service provider” as that term is defined by California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulation.

3. Purpose, scope and interpretation

The purpose of this DPA is to ensure compliance with Applicable Data Protection Laws. This DPA applies to the processing of Personal Data as specified in Schedule 1. This DPA is without prejudice to other obligations to which the controller is subject under Applicable Data Protection Laws.

4. Hierarchy

In the event of a contradiction between this DPA and the provisions of related agreements between the Parties existing at the time when this DPA is agreed or entered into thereafter, this DPA shall prevail.

5. Description of processing(s)

The details of the processing operations, in particular the categories of Personal Data and the purposes of processing for which the Personal Data is processed on behalf of the controller, are specified in Schedule 1.

6. Obligations of the Parties

6.1 Instructions

The Processor shall process Personal Data only on documented instructions from the controller, unless required to do so by any law to which the Processor is subject. In this case, the Processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of Personal Data. These instructions shall always be documented. The Processor shall immediately inform the controller if, in the Processor’s opinion, instructions given by the controller infringe Applicable Data Protection Laws.

6.2 Purpose limitation

The Processor shall process the Personal Data only for the specific purpose(s) of the processing, as set out in Schedule 1, unless it receives further instructions from the controller.

6.3 Duration of the processing of Personal Data

Processing by the Processor shall only take place for the duration specified in Schedule 1.

6.4 Security of processing

(a) The Processor shall at least implement the technical and organisational measures specified in Schedule 2 to ensure the security of the Personal Data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (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 purposes of processing and the risks involved for the data subjects.

(b) The Processor shall grant access to the Personal Data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The Processor shall ensure that persons authorised to process the Personal Data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

6.5 Documentation and compliance

(a) The parties shall be able to demonstrate compliance with this DPA.

(b) The Processor shall deal promptly and adequately with inquiries from the controller about the Processing of data in accordance with this DPA.

(c) The Processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in this DPA and Applicable Data Protection Laws. At the controller’s request, the Processor shall also permit and contribute to audits of the Processing activities covered by this DPA, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the Processor.

(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the Processor and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

6.6 Use of sub-Processors

(a) The Processor has the controller’s general authorisation for the engagement of sub-Processors, including those on the agreed List of Data Sub Processors. The controller may subscribe to updates to the list in which case notifications will be sent out in connection with the appointment and the controller may object to the changes in the list within ten (10) days of receiving the notification. In absence of such objection, the change shall be considered approved. The Processor shall provide the controller with the information necessary to enable the controller to exercise the right to object. If the controller objects, Processor will take one of the following actions:

(1) No longer use the additional sub-processor.

(2) Cease to use the sub-processor with regards to the controller’s personal data.

(3) Cease to provide the specific service requiring processing or personal data to the controller without unreasonably burdening the controller.

If Processor is unable to provide one of the remedial steps above within reasonable time, controller may cancel their subscription with respect only to those services which cannot be provided by Processor without use of the objected to sub-processor by providing written notice to Processor. Processor will refund any respective pre-paid fees for the corresponding services for the remaining term of the Agreement.

(b) Where the Processor engages a sub-Processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-Processor, in substance, the same data protection obligations as the ones imposed on the data Processor in accordance with this DPA. The Processor shall ensure that the sub-Processor complies with the obligations to which the Processor is subject pursuant to this DPA and Applicable Data Protection Laws.

(c) At the controller’s request, the Processor shall provide a copy of such a sub-Processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including Personal Data, the Processor may redact the text of the agreement prior to sharing the copy.

(d) The Processor shall remain fully responsible to the controller for the performance of the sub-Processor’s obligations in accordance with its contract with the Processor. The Processor shall notify the controller of any failure by the sub-Processor to fulfil its contractual obligations.

6.7 International transfers

(a) Any transfer of data from the European Union to a third country or an international organisation by the Processor shall be done only on the basis of documented instructions, included in this DPA, the Agreement or elsewhere, from the controller or in order to fulfil a specific requirement under law to which the Processor is subject and shall take place in compliance with GDPR. The controller hereby instructs the Processor to transfer data to the sub-Processors listed in the List of Data Sub Processors for the purposes of fulfilling the Agreement.

(b) The controller agrees that where the Processor engages a sub-Processor in accordance with Clause 6.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of Personal Data within the meaning of Chapter V of GDPR, the Processor and the sub-Processor can ensure compliance by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

7. Assistance to the controller

(a) The Processor shall promptly notify the controller of any request it has received from a data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

(b) The Processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the Processor shall comply with the controller’s instructions.

(c) In addition to the Processor’s obligation to assist the controller pursuant to Clause 7(b), the Processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the Processor:

(1) the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of Personal Data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;

(2) the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;

(3) the obligation to ensure that Personal Data is accurate and up to date, by informing the controller without delay if the Processor becomes aware that the Personal Data it is processing is inaccurate or has become outdated;

(4) the obligations in Article 32 of GDPR.

(d) The Parties have set out in Schedule 2 the appropriate technical and organisational measures by which the Processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

8. Notification of Personal Data breach

In the event of a Personal Data breach, the Processor shall cooperate with and assist the controller for the controller to comply with its obligations under Applicable Data Protection Laws, where applicable, taking into account the nature of processing and the information available to the Processor.

8.1 Data breach concerning data processed by the controller

In the event of a Personal Data breach concerning data processed by the controller, the Processor shall assist the controller:

(a) in notifying the Personal Data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the Personal Data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

(b) in obtaining the following information which shall be stated in the controller’s notification, and must at least include:

(b) in obtaining the following information which shall be stated in the controller’s notification, and must at least include:

(1) the nature of the Personal Data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;

(2) the likely consequences of the Personal Data breach;

(3) the measures taken or proposed to be taken by the controller to address the Personal Data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this 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.

(c) in complying with the obligation to communicate without undue delay the Personal Data breach to the data subject, when the Personal Data breach is likely to result in a high risk to the rights and freedoms of natural persons.

8.2 Data breach concerning data processed by the Processor

In the event of a Personal Data breach concerning data processed by the Processor, the Processor shall notify the controller without undue delay after the Processor having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the Personal Data breach can be obtained;

(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

Where, and insofar as, it is not possible to provide all this 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.

The Parties shall set out in Schedule 2 all other elements to be provided by the Processor when assisting the controller in the compliance with the controller’s obligations under Applicable Data Protection Laws.

The Parties shall set out in Schedule 2 all other elements to be provided by the Processor when assisting the controller in the compliance with the controller’s obligations under Applicable Data Protection Laws.

9. Non-compliance with the Clauses and termination

(a) Without prejudice to any provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

(1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;

(2) the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725;

(3) the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 6.1, the controller insists on compliance with the instructions.

(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

10. Limitation of liability

Each party’s liability arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement.

Schedule 1

Description of the processing

Categories of data subjects whose Personal Data is processed

The categories are determined and controlled by controller in its sole discretion and may typically include:

  • Customers, prospects, business partners, and vendors of the controller

  • Employees or contact persons of the controller's customers, prospects, business partners, and vendors.

  • Controller’s end-users to the extent that their data is Processed in the Services.

*Note that Planhat is controller in relation to Personal Data relating to representatives of the Customer, meaning that this DPA does not apply to such data. For details, please refer to Planhat’s Privacy Policy.

Categories of Personal Data processed

The categories are determined and controlled by controller in its sole discretion and may typically include:

  • Identifying Data - Information that uniquely or semiuniquely identifies a specific individual such as name and title.

  • Authenticating Data - Information used to authenticate an individual with something they know such as passwords.

  • Contact Data - Information that provides a mechanism for contacting an individual such as address, phone number and email address.

  • Communication Data - Information communicated from or to an individual such as emails and text messages.

  • Location Data - Information about an individual’s location such as IP address.

  • Technical Data - Information about a device that an individual uses ex. Mac or PC.

Nature of the processing

Personal Data may be subject to the following processing activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to the controller; (ii) to provide technical and commercial support to the controller; and (iii) disclosures as required by law or otherwise set forth in the Agreement between the controller and the Processor.

Purpose(s) for which the Personal Data is processed on behalf of the controller

To perform the Services (as defined in the Agreement) in accordance with the Agreement. Limited processing may also be carried out to improve Planhat’s products and services (e.g., to understand and analyse how the Service is used so that the Service can be improved).

Duration of the processing

The Personal Data will be processed during the term of the Agreement between the Parties and retained up to ninety (90) days after termination. Generally, data is deleted thirty (30) days after termination.

For processing by sub-Processors, please see Planhat’s List of Sub processors.

Schedule 2

Technical and organisational measures including (i) technical and organisational measures to ensure the security of the data; (ii) technical and organisational measures to be taken by the (sub-) Processor to be able to provide assistance to the controller; and (iii) technical and organisational measures to be taken by the Processor to be able to provide assistance to the controller are described in Planhat’s Security Statement and Planhat's GDPR Commitment.

PREVIOUS VERSIONS: December 9, 2019

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