This Data Processing Agreement (“DPA”) is for the product named KiSSFLOW offered by OrangeScape Inc. This agreement includes the Standard Contractual Clauses adopted by the European Commission, as applicable, and reflects the parties’ agreement with respect to the terms governing the Processing of Personal Data under the KiSSFLOW Customer Terms of Service (the “Agreement”). This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement.
The term of this DPA shall follow the term of the Agreement. Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time. The terms “process”, “processes” and “processed” will be construed accordingly.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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.
“Instruction” means the written, documented instruction, issued by the Controller to the Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
2. Subject Matter and Nature of Processing
The subject-matter of Processing of Personal Data by the Processor is the provision of the services to the Controller that involves the Processing of Personal Data. Personal Data will be subject to those Processing activities as may be specified in the Agreement and an Order.
3. Types of Personal Data and Purpose of Processing
Contact information, the extent of which is determined and controlled by the Customer in its sole discretion, and other Personal Data such as navigational data (including website usage information), email data, system usage data, application integration data, and other electronic data submitted, stored, sent, or received by end users via the KiSSFLOW Product. Personal Data will be Processed for purposes of providing the services set out and otherwise agreed to in the Agreement and any applicable Order.
4. Categories of Data Subjects
The Controller’s contacts and other end users including the Controller’s employees, contractors, collaborators, customers, prospects, suppliers and subcontractors. Data Subjects also include individuals attempting to communicate with or transfer Personal Data to the Controller’s end users.
5. Customer Responsibility
The Controller shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of Personal Data to the Processor and the Processing of Personal Data. For the avoidance of doubt, the Controller’s instructions for the Processing of Personal Data shall comply with the Data Protection Law. The Controller shall inform the Processor without undue delay and comprehensively about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
6. Obligations of the Processor
The Processor shall collect, process and use Personal Data only within the scope of the Controller’s instructions. If the Processor believes that an Instruction of the Controller infringes the Data Protection Law, it shall immediately inform the Controller without delay. If the Processor cannot process Personal Data in accordance with the Instructions due to a legal requirement under any applicable European Union or Member State law, the Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the Data Protection Law; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which the Processor is able to comply.
The Processor shall take the appropriate technical and organizational measures to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, but are not be limited to:
- the prevention of unauthorized persons from gaining access to Personal Data Processing systems (physical access control),
- the prevention of Personal Data Processing systems from being used without authorization (logical access control),
- ensuring that Personal Data cannot be read, copied, modified or deleted without authorization during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of Personal Data by means of data transmission facilities can be established and verified (data transfer control),
- ensuring that Personal Data is processed solely in accordance with the Instructions (control of instructions),
- ensuring that Personal Data is protected against accidental destruction or loss (availability control).
- Ensure that Personal Data is backed up and maintained using industry standards
- Ensure the infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.99% uptime for access to the Processor’s services.
7. Rectification, Restriction and Erasure of Data
The Processor will provide reasonable assistance, including by appropriate technical and organizational measures and taking into account the nature of the Processing, to enable the Controller to respond to any request from Data Subjects seeking to exercise their rights under the Data Protection Law with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law. If such request is made directly to the Processor, the Processor will promptly inform the Controller and will advise Data Subjects to submit their request to the Controller. The Controller shall be solely responsible for responding to any Data Subjects’ requests. The Controller shall reimburse the Processor for the costs arising from this assistance.
8. Data Breaches
The Processor will notify the Controller as soon as practicable after it becomes aware of any of any Personal Data Breach affecting any Personal Data. At the Controller’s request, the Processor will promptly provide the Controller with all reasonable assistance necessary to enable the Controller to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if the Controller is required to do so under the Data Protection Law.
9. Sub Processors
The Processor shall be entitled to engage sub-processors to fulfil the Processor’s obligations defined in the Agreement by way for controller agreeing to the terms of service of KiSSFLOW. Where the Processor engages sub-processors, the Processor will engage only with sub processors whose terms of service honor the same obligations that apply to the Processor under this DPA.
10. Transfer of Personal Data
The Controller acknowledges and agrees that, in connection with the performance of the services under the Agreement, Personal Data will be transferred to OrangeScape, Inc. in the United States. OrangeScape, Inc. has certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks as administered by the U.S. Department of Commerce, in order to implement appropriate safeguards for such transfers pursuant to Article 46 of the GDPR.