Data Processing Addendum
1. SCOPE AND DEFINITIONS
1.1. This Axero Holdings LLC Data Processing Addendum (“DPA”) forms part of the agreement (“Agreement”) between the customer (“you,” “your”) and the Axero Holdings LLC entity (“we,” “us,” “our”) under which we provide you and, if applicable, your affiliates certain services (“Services”) and in which this DPA is referenced. This DPA applies to our processing of personal data on behalf of you and, if applicable, your affiliates and is subject to the terms of the Agreement.
1.2. “Data protection laws” means all applicable privacy and data protection laws, regulations, orders and other government requirements, including those of the European Union (“Union”), the United Kingdom (“UK”) and the United States. “GDPR” means Regulation 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). The terms “data subject,” “personal data,” “personal data breach,” “processing,” and “processor” will have the meanings ascribed to them in the data protection laws, and where such laws use the term ‘personal information,’ it shall be read as personal data.
2.1. We will implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of the relevant data protection laws and ensure the protection of the rights of the data subject and the standard of protection will be at least comparable to the protection required under the relevant data protection laws.
2.2. We will not engage another processor without your prior specific or general written authorisation. In the case of general written authorisation, we will inform you of any intended changes concerning the addition or replacement of other processors, thereby giving you the opportunity to object to such changes in the manner more specifically set forth herein.
2.3. Our processing will be governed by this DPA. In particular, we will:
- process the personal data only on your documented instructions, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union, UK or Member State law to which we are subject; in such a case, we will inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- take all measures required pursuant to Article 32 of the GDPR;
- respect the conditions referred to in paragraphs 2.2 and 2.4 for engaging another processor;
- taking into account the nature of the processing, assist you by taking appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of your obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
- assist you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to us;
- at your choice, delete or return to you all the personal data after the end of the provision of services relating to processing and delete existing copies unless Union, UK or Member State law requires storage of the personal data;
- make available to you all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by you or another auditor you mandate.
- We will promptly inform you if, in our opinion, an instruction from you to us infringes the GDPR or other Union, UK or Member State data protection provisions.
2.4. Where we engage another processor for carrying out specific processing activities on your behalf, the same data protection obligations as set out in this DPA will be imposed on that other processor by way of a contract or other legal act under Union, UK or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other processor fails to fulfill those data protection obligations, we will (subject to the terms of this Agreement) remain fully liable to you for the performance of that other processor’s obligations.
2.5 The subject matter of our processing is the personal data provided in respect of the Services under this Agreement. The duration of the processing is the duration of the provision of the Services under the Agreement. The nature and purpose of the processing is in connection with the provision of the Services under the Agreement. We are prohibited from retaining, using or disclosing the personal data for any purpose other than for the specific purpose of performing the Services under the Agreement, or as otherwise permitted by applicable law, including retaining, using or disclosing the personal data for a commercial purpose other than providing the Services. The types of personal data processed are names; contact details; government-issued identification; date of birth; place of birth; and/or other types of personal data submitted to the Services. The categories of data subjects are your representatives, users of the Services, and/or clients, prospects, suppliers, business partners and others whose personal data may be submitted to the Services.
2.6. The Agreement including this DPA, along with your use and configuration in the Services, are your complete and final documented instructions to us for the processing of personal data. Additional or alternate instructions must be agreed upon separately by the parties. We will ensure that our personnel engaged in the processing of personal data will process such data only on your documented instructions, unless required to do so by Union, UK, Member State or other applicable law.
2.7. Upon the expiration or termination of your use of the Services, we will delete or return personal data in accordance with the terms and timelines set forth in the Agreement, unless Union, UK, Member State or other applicable law requires continued storage of the personal data.
3.1. You hereby provide us general authorisation to engage other processors for the processing of personal data in accordance with this DPA. We will maintain a list of such processors and a mechanism to subscribe to notifications for the addition of new sub-processors at https://axerosolutions.com/legal/sub-processors, which we may update from time to time. We shall provide notification of a new sub-processor(s) before authorizing any new such sub-processor(s).
4. DATA SUBJECT RIGHTS
4.1. We will, to the extent legally permitted, promptly notify you of any data subject requests we receive and reasonably cooperate with you to fulfill your obligations under the data protection laws in relation to such requests.
5.1. We will ensure that, to the extent that any personal data originating from your country is transferred to another country such transfer will be subject to appropriate safeguards in accordance with the data protection laws (including Chapter V of the GDPR).
5.2 To the extent that you transfer personal data from the UK, Switzerland or EEA to us in a country or territory outside the EEA that has not received a binding adequacy decision by the European Commission or a competent national data protection authority, the parties will be deemed to have entered into the EU Standard Contractual Clauses (processors) in respect of such transfer, whereby you are the “data exporter,” we are the “data importer,” the optional clause is removed, and the content of the appendices correspond to the respective content of this DPA and the Agreement, unless the parties may rely on alternative appropriate safeguards under the data protection laws (including Article 46 of the GDPR).
6. SECURITY OF PROCESSING
6.1. 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 natural persons, the parties will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including among other things as appropriate:
- the pseudonymisation and encryption of personal 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 personal data in a timely manner in the event of a physical or technical incident; and
- a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
6.2. In assessing the appropriate level of security, we shall take into account the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
6.3. The parties will take reasonable steps to ensure that any natural person acting under the authority of either party who has access to personal data does not process the data except on instructions from you, unless he or she is required to do so by Union, UK or Member State law.
7. PERSONAL DATA BREACH
7.1. We will notify you without undue delay after becoming aware of a personal data breach and will reasonably respond to your requests for further information to assist you in fulfilling your obligations under the data protection laws (including Articles 33 and 34 of the GDPR as applicable).
8. RECORDS OF PROCESSING ACTIVITIES
8.1. We will maintain all records required by the data protection laws (including Article 30(2) of the GDPR as applicable) and, to the extent applicable to the processing of personal data on your behalf, make them available to you as required.
9.1. Audits shall be:
- subject to the execution of appropriate confidentiality or non-disclosure agreements;
- conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance with the Agreement has been made, upon thirty (30) days’ prior written notice and having provided a plan for such review; and
- conducted at a mutually agreed upon time, place and manner.
10.1. If there is any conflict or inconsistency between the terms of this DPA and the Agreement, the terms of this DPA shall control to the extent required by law.
Last updated: August 19, 2021