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This DPA is based on the Article 28 controller-to-processor standard contractual clauses adopted by Commission Implementing Decision (EU) 2021/915. The standard contractual clauses for transfers to third countries adopted by Commission Implementing Decision (EU) 2021/914 are separate and are incorporated in Clause 6.8 where they apply.
1. BACKGROUND
This Data Processing Agreement ("DPA") forms part of the agreement between the Planhat entity identified in the Order Confirmation ("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 capitalised terms not defined herein shall have the meaning set forth in the Agreement and where terms defined in GDPR are used (such as Processing, Data Subject, and Personal Data Breach), those terms shall have the same meaning as in GDPR unless defined in this DPA.
"Applicable Data Protection Laws" means data protection and privacy laws and regulations applicable to a party in respect of the Processing of Personal Data under the Agreement, including, where applicable to that party, the 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.
"CCPA" means the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act of 2020 ("CPRA"), together with its implementing regulations, each as amended from time to time.
"Controller" shall have the meaning given to it under the GDPR. References to the Controller in this DPA mean Customer, as specified in the Order Confirmation, whether Customer acts as controller or as processor on behalf of a third party controller, and shall, for the purposes of the CCPA, be interpreted to include "business" as that term is defined therein.
"GDPR" means the Regulation (EU) 2016/679, as amended from time to time, including as implemented or adopted under the laws of the United Kingdom (the "UK GDPR").
"Personal Data" means any information relating to an identified or identifiable natural person, as set out under Applicable Data Protection Laws, that is supplied by or on behalf of Customer to Planhat or that is generated or derived by the Services on Customer's behalf.
"Processor" shall have the meaning given to it under the GDPR. References to the Processor in this DPA mean the Planhat group company specified in the Order Confirmation as the contracting party, and shall, for the purpose of the CCPA, be interpreted to include "service provider" as that term is defined therein.
"Swiss FADP" means the Swiss Federal Act on Data Protection of 25 September 2020, together with its implementing ordinances, each as amended from time to time.
3. PURPOSE, SCOPE AND INTERPRETATION
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.
The Controller represents and warrants that it has, and will maintain throughout the term of the Agreement, all rights, consents, and lawful basis necessary to disclose Personal Data to Planhat for Processing in accordance with this DPA and the Agreement. The Controller shall be solely responsible for the accuracy, quality, and legality of the Personal Data it provides to Planhat and the means by which it acquired that Personal Data. The Controller's instructions to the Processor, including its determination to collect and provide Personal Data to Planhat, shall comply with Applicable Data Protection Laws.
The Processor's obligations under this DPA are determined by reference to the GDPR, the UK GDPR, the Swiss FADP and the CCPA as amended by the CPRA, and the Processor's obligations to assist the Controller under this DPA are limited to those laws. Notwithstanding anything to the contrary in this DPA, the Processor is not responsible for compliance with, and shall have no obligation to take any action or provide any assistance in respect of, any Applicable Data Protection Law that applies or becomes applicable to the Processor solely as a result of the Controller's industry or the Controller's use of the Services or of the Personal Data submitted by the Controller, save to the extent the Processor has expressly agreed otherwise in writing.
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 in respect of processing of Personal Data, unless the Order Confirmation expressly provides otherwise.
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 applicable to Processor. Customer's documented instructions comprise this DPA, the Agreement, and the instructions Customer gives through its configuration and use of the Services, including where Customer enables a Third-Party Tool in accordance with the Agreement.
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. 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, which shall be no more than once in any twelve (12) month period, or, without limitation as to the frequency, 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. The Controller shall bear the reasonable costs of any such audit, unless the audit identifies a material non-compliance by the Processor with this DPA, in which case the Processor shall bear such costs.
(e) Additional Provisions for California Personal Information. This section of the DPA will apply only with respect to California Personal Information, meaning Personal Data that is subject to the protection of the CCPA. The Processor receives California Personal Information for the limited and specified business purposes set out in Schedule 1 and the Agreement, and certifies that it will: (i) not sell or share California Personal Information; (ii) not retain, use or disclose California Personal Information for any purpose other than those business purposes, including outside the direct business relationship between the parties, except as permitted by the CCPA; (iii) not combine California Personal Information with personal information received from or on behalf of any other person, or collected from the Processor's own interaction with the consumer, except as permitted by the CCPA; (iv) comply with the obligations applicable to it under the CCPA and provide the same level of privacy protection as the CCPA requires of a business; and (v) notify the Controller if it determines that it can no longer meet its obligations under the CCPA. The Controller may take reasonable and appropriate steps to stop and remediate any unauthorised use of California Personal Information by the Processor.
(f) 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 Sub-Processors (https://www.planhat.com/legal/subprocessor-disclosure). The Controller may subscribe to updates to the list at http://planhat.com/legal/dpa/updates#subscribe, 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 thirty (30) 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 of 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. In such event, Processor will refund any 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.
(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 secrets 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 fulfill its contractual obligations.
(e) Providers of Third-Party Tools are not Sub-Processors of the Processor, and Customer is responsible for that provider and for its own relationship with it.
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 fulfill 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 Sub-Processor for the purposes of fulfilling the Agreement.
(b) The Controller agrees that where the Processor engages a Sub-Processor in accordance with Clause 6.6 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 that transfers will only take place on the basis of an adequacy decision, or, in the absence of such a decision, on the basis of appropriate safeguards, such as using standard contractual clauses (SCCs), provided the conditions for the use of those SCCs are met.
6.8 TRANSFER STANDARD CONTRACTUAL CLAUSES
(a) Where a transfer of Personal Data under this DPA is a restricted transfer for which no adequacy decision or other approved transfer mechanism applies, the standard contractual clauses adopted by Commission Implementing Decision (EU) 2021/914 (the "Transfer Clauses") are incorporated into and form part of this DPA and apply to that transfer.
(b) Module Two (controller to processor) applies where Customer acts as controller. Module Three (processor to processor) applies where Customer acts as processor on behalf of a third party controller.
(c) The following selections apply: Clause 7 (docking clause) does not apply; in Clause 9, Option 2 (general written authorisation) applies and the notice period is the period stated in Clause 6.6(a) of this DPA; in Clause 11, the optional independent dispute resolution provision does not apply; in Clause 17, the Transfer Clauses are governed by the law of Sweden; and in Clause 18(b), disputes shall be resolved before the courts of Sweden.
(d) Annex I.A is completed with the details of the parties set out in the Agreement; Annex I.B with the description of the processing in Schedule 1; Annex I.C with the competent supervisory authority determined in accordance with Clause 13 of the Transfer Clauses; Annex II with the technical and organisational measures referred to in Schedule 2; and Annex III, where applicable, with the List of Sub-Processors.
(e) Where the transfer is subject to UK data protection law, the Transfer Clauses apply as varied by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the Information Commissioner under section 119A of the Data Protection Act 2018 (the "UK Addendum"). Tables 1 to 3 of the UK Addendum are completed with the information in this Clause 6.8 and Schedules 1 and 2, and in Table 4 the Importer may end the UK Addendum as set out in Section 19 of it.
(f) Where the transfer is subject to Swiss data protection law, the Transfer Clauses apply with references to the GDPR read as references to the Swiss Federal Act on Data Protection, with the competent supervisory authority being the Federal Data Protection and Information Commissioner, and with the term "member state" not being interpreted so as to prevent data subjects in Switzerland from enforcing their rights in their place of habitual residence.
(g) In the event of a conflict between the Transfer Clauses and the remainder of this DPA, the Transfer Clauses prevail in respect of the transfer to which they apply.
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 in order for the Controller to comply with its obligations under Applicable Data Protection Laws taking into account the nature of processing and the information available to the Processor.
Furthermore, the Processor shall notify the Controller without undue delay after the Processor having become aware of a Personal Data Breach concerning data processed by the Processor. 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.
9. NON-COMPLIANCE WITH THE DPA 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 this DPA, the Controller may instruct the Processor to suspend the processing of Personal Data until the Processor complies with this DPA or until it is terminated. The Processor shall promptly inform the Controller in case it is unable to comply with this DPA, for whatever reason.
(b) The Controller shall be entitled to terminate this DPA if:
1. the processing of Personal Data by the Processor has been suspended by the Controller pursuant to point (a) and if compliance with this DPA 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 this DPA 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 this DPA or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
(c) The Processor shall be entitled to terminate this DPA 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) The Controller may export Personal Data from the Services at any time during the Subscription Period and for thirty (30) days after its termination or expiry, which constitutes return of the Personal Data. Before the end of that period the Controller may instead instruct the Processor in writing to delete the Personal Data earlier or to return it in an agreed format. Personal Data is automatically deleted after thirty (30) days of termination or expiry of the Subscription Period and any backup copies within ninety (90) days, unless applicable law requires Personal Data to be retained. Until deleted, Personal Data remains subject to this DPA. At the Controller’s written request, Processor shall certify deletion.
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: employees, contact persons and other representatives of customers, prospects, business partners, and vendors of the Controller, and Controller’s end-users to the extent that their data is Processed in the Services.
*Note that Planhat is the controller in relation to Personal Data relating to representatives of the Customer and in relation to Usage Data as defined in the Terms of Service, and this DPA does not apply to such data. Aggregated Data as defined in the Terms of Service is not Personal Data and is not subject to this DPA. For details, please refer to Planhat’s privacy policy (https://www.planhat.com/legal/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, authenticating data, contact data, communication data, location data, and technical data.
NATURE AND PURPOSE OF THE PROCESSING
Storage and other processing operations necessary to perform the Services in accordance with the Agreement, including processing by AI Features and to provide support to the Controller.
Processor may process Personal Data to create Aggregated Data as defined in the Terms of Service. Aggregated Data does not identify any individual, is not Personal Data, and is not subject to this DPA.
DURATION OF THE PROCESSING
The Personal Data will be processed during the term of the Agreement between the parties. Following termination, Personal Data is automatically deleted within thirty (30) days of termination, and any backup copies of Personal Data are deleted within ninety (90) days of termination.
For processing by Sub-Processors, please see Planhat’s Subprocessors available at planhat.com/legal/subprocessor-disclosure
Schedule 2
TECHNICAL AND ORGANISATIONAL MEASURES
Technical and organisational measures including (i) technical and organisational measures to ensure the security of the data and (ii) 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 (planhat.com/legal/security-statement). The Processor may update or modify the technical and organisational measures from time to time provided that no update materially decreases the overall security of the Services during a Subscription Period.