Data Processing Agreement
Last Updated on October 15th, 2022
WHEREAS, the Customer acts as a Data Controller;
WHEREAS, the Customer wishes to subcontract certain Service, which imply the processing of personal data, to the Data Processor; and
WHEREAS, the Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows:
1. Definitions and Interpretation
1.1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1. "Agreement" means this Data Processing Agreement and all Schedules;
1.1.2. "Customer Data" means any Personal Data Processed by a Data Processor on behalf of Customer pursuant to or in connection with the Principal Agreement;
1.1.3. "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.4. "EEA" means the European Economic Area;
1.1.5. "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.6. "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.7. "Data Transfer" means:
184.108.40.206. a transfer of Customer Data from the Customer to a Data Processor; or
220.127.116.11. an onward transfer of Customer Data from a Data Processor to a Sub-processor, or between two establishments of a Sub-processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.8. "Service" means creating, modifying, editing, filling PDF documents with Customer Data via Service Provider;
1.1.9 "Sub-processor" means any person or a third-party data processor appointed by Data Processor who potentially will have access to or can process Customer Data;
1.1.10 "Service Provider" means a dedicated server that is rented and controlled by Data Processor and is used to provide Service;
1.2. The terms, "Commission," "Controller," "Data Subject," "Member State," "Personal Data," "Personal Data Breach," "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Processing of Customer Data
2.1. Data Processor shall:
2.1.1. comply with all applicable Data Protection Laws in the Processing of Customer Data; and
2.1.2. not Process Customer Data other than on the relevant Customer's documented instructions.
2.2. The Customer instructs Data Processor to process Customer Data.
2.3 Data Processor shall not appoint (or disclose any Customer Data to) any Sub-processor unless required or authorized by the Customer. Upon consent, the transfer of personal data by the Data Processor shall be subject to the establishment of the same data protection obligations as provided for in this data processing agreement before the transfer of personal data to the Sub-processor.
3. Retention, Deletion or Return of Customer Data
The Customer Data shall be processed until provision of the Service is completed. The Customer Data process is transaction based and no additional copies are stored. The Customer Data will not be retained after the document is created.
4. Data Processor Personnel
Data Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Sub-processor who may have access to the Customer Data, ensuring in each case that access is strictly limited to those individuals who need to know/access the relevant Customer Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Sub-processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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 natural persons, Data Processor shall in relation to the Customer Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2. In assessing the appropriate level of security, Data Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
This Agreement shall remain in effect as long as Data Processor carries out the Service on behalf of the Customer or until the termination of the Terms of Service (and all Customer Data has been returned or deleted).
7. Data Subject Rights
7.1. Taking into account the nature of the Processing, Data Processor shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2. Data Processor shall:
7.2.1. promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Data; and
7.2.2. ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Data Processor is subject, in which case Data Processor shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Sub-processor responds to the request.
8. Personal Data Breach
8.1. Data Processor shall notify Customer without undue delay upon Data Processor becoming aware of a Personal Data Breach affecting Customer Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2. Data Processor shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
Data Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Data by and taking into account the nature of the Processing and information available to, the Sub-processors.
10. Audit Rights
10.1. Subject to this section 10, Data Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Data by the Sub-processors.
10.2. Information and audit rights of the Customer only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
11. Data Transfer
The Data Processor may not transfer or authorize the transfer of Customer Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Customer. The consent shall not be required for Service Providers listed in section 12 and Sub-processors listed in section 13. The Sub-processors and Service Providers list may be updated from time to time. If Customer Data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
12. List of Service Providers
|Service Provider URL||Location|
|api.e2pdf.com||USA (via Cloudflare, Inc)|
|api3.e2pdf.com||EU (via Cloudflare, Inc)|
13. List of Sub-processors
|Entity Name||Processing Activity||Location|
|DigitalOcean, Inc.||Hosting||USA + EU|
|Cloudflare, Inc||Delivery Network||USA + EU|
Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement ("Confidential Information") confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
16. Governing Law and Jurisdiction
16.1. This Agreement is governed by the laws of California.
16.2. Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of California.