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Repsly Data Processing Addendum

EU Standard Contractual Clauses

 

This Data Processing Addendum (“DPA”) forms part of the Repsly Terms of Use under which the parties hereto provide and use the Repsly service (“Agreement”) and specifies the data protection obligations of the parties that may arise from Processing of Personal Data by Repsly on behalf of Customer in the course of providing Services to Customer under the Agreement and, if applicable, shall replace and supersede in its entirety any prior data processing agreement or section in the Agreement dealing with data protection. The term of this DPA will be the same as the term of Services under the Agreement and these DPA terms will supersede any conflicting terms of the Agreement.

 

  1. DEFINITIONS
    1. Customer Personal Data” means the categories of Personal Data set out in Appendix 1 to the Standard Contractual Clauses attached to this DPA as Processed by Repsly on behalf of the Customer.
    2. Data Protection Legislation” means:
      1. the EC Directive 1995/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data and all local laws or regulations giving effect to this Directive;
      2. the EC Directive 2002/58/EC on Privacy and Electronic Communications and all local laws or regulations giving effect to this Directive;
      3. GDPR” meaning the EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (with effect from 25 May 2018);
      4. all relevant laws or regulations implementing or supplementing the EU legislation mentioned in (a.) - (c.) above, including elements of the GDPR incorporated into or governed by national law relevant for the Services and any legislation that, in respect of the United Kingdom, replaces or converts into domestic law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union; and
      5. any related codes of conduct or guidance issued by a regulator or other governmental entity.
    3. Services” means the services provided by Repsly under the Agreement including any incidental Processing.
    4. Standard Contractual Clauses” means the standard contractual clauses pursuant to the European Commission’s decision of 5 February 2010 on Standard Contractual Clauses for the transfer of Personal Data to Processors established in third countries under Directive 1995/46/EC attached hereto as Attachment 1.
    5. Sub-processor” means any Data Processor engaged by Repsly.
    6. Other capitalized terms in this DPA have the meaning given to them under the applicable Data Protection Legislation or as set forth in the Agreement.

 

  1. PROCESSING OF PERSONAL DATA
    1. Authorization. Customer authorizes Repsly to Processes Customer Personal Data during the term of this DPA and for the sole purpose of providing Services as set forth in this DPA. The extent and nature of Processing of Customer Personal Data, the type of Customer Personal Data, and the Data Subjects are set out in Appendix 1 to the Standard Contractual Clauses.
    2. Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Customer Personal Data in connection with this DPA, Customer acts as Data Controller of the Personal Data of its own Users, and, if applicable, on behalf of and in the name of its Users in their capacity as Data Controllers (e.g.: Customer Affiliates or third parties permitted by Customer to use the Services). Repsly acts a Data Processor and may engage other Sub-processors pursuant to the requirements set forth in Section 4 of this DPA.
    3. Customer’s Obligations. Notwithstanding any other obligations of Customer set out in this DPA, Customer will:
      1. Be responsible for complying with all Data Protection Legislation applicable to it, in particular with the principles relating to processing of Customer Personal Data and the lawfulness of Processing, as well as, safeguarding the rights of the Data Subjects.
      2. Notify Repsly of any change in the Data Protection Legislation that may affect the Agreement promptly upon Customer’s learning of same.
      3. Serve as a single point of contact for Repsly and is solely responsible for the coordination, review and submission of instructions or requests of other Data Controllers permitted by Customer to use the Services. Repsly is discharged of its obligation to inform or notify these Data Controllers when Repsly has provided information or notice to Customer. Repsly is entitled to refuse any requests or instructions provided directly by a Data Controller that is not Customer.
    4. Repsly’s Obligations. Notwithstanding any other obligations of Repsly set out in this DPA, Repsly will:
      1. Comply with its obligations under Data Protection Legislation in performing the Services;
      2. Process Customer Personal Data only in accordance with Customer’s documented instructions as further specified in Section 2.5 of this DPA unless such processing is required by the European Union or a law of a Member State to which Repsly is subject;
      3. Ensure the reliability of all its employees and subcontractors who have access to the Customer Personal Data and ensure that persons authorised to Process Customer Personal Data in connection with the Services are subject to a duty of confidentiality or are under appropriate statutory obligations of confidentiality;
      4. Implement appropriate technical and organisational measures to ensure an appropriate security level of the Customer Personal Data Processed as further set out in Section 5.1 of this DPA;
      5. Not engage any Sub-processor to process Customer Personal Data without the prior written consent of the Customer except as set out in Section 4 of this DPA;
      6. Provide, at Customer’s request and expense, assistance in relation to the Customer’s obligations under Data Protection Legislation taking into account the nature of the processing and the information available to Repsly, namely:
        1. responding to requests for exercising Data Subjects’ rights under Data Protection Legislation, including by appropriate technical and organisational measures, insofar as this is possible;
        2. notify the Customer should Repsly become aware of any unauthorised or unlawful processing of any Customer Personal Data or that any Customer Personal Data is lost or destroyed or has become damaged, corrupted or unusable, provided (i) the requirements of any data breach notification under the applicable Data Protection Legislation are met, and (ii) in case of unauthorized Processing, to the extent a specific risk is given;
        3. Assisting Customer in conducting data protection impact assessments of any Processing operations if and to the extent required under Data Protection Legislation;
      7. Delete or return to Customer all Customer Personal Data at the end of Processing as set out in Section 6 of this DPA;
      8. Make available all necessary information to demonstrate compliance with its obligations under this Section 2.4, allow for and contribute to audits, including inspections, as set out in Section 5 of this DPA, and inform the Customer if, in Repsly’s opinion, an instruction infringes applicable Data Protection Legislation; and
      9. Keep a written record of any processing of the Customer Personal Data carried out in the course of the Services and of its compliance with its obligations set out in this Agreement (“Records”) to the extent required under applicable Data Protection Legislation.
    5. Purpose of Processing.
      1. Customer instructs Repsly to Process Customer Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Documents; (ii) Processing as instructed by the Application, (iii) Processing initiated by Users in their use of the Services in accordance with Customer’s parameterization or specification; and (iv) Processing to comply with other reasonable instructions provided by Customer via Repsly’s Maintenance Support Service where such instructions are consistent with the terms of the Agreement.
      2. Where an instruction cannot be followed due to the architecture of the Services or generates disproportionate efforts or additional costs, Customer will reimburse Repsly for all reasonable costs arising from the changes required as a result of such instruction or Repsly may terminate all or parts of the affected Services. Repsly reserves the right to improve the Services, provided it will not materially decrease the scope of the Services during the term of the Agreement. Repsly will use reasonable efforts to inform the Customer if, in its opinion, an instruction infringes applicable Data Protection Legislation.
      3. Repsly will not process Customer Personal Data processed pursuant to the Agreement for its own purposes without the express permission of the Customer or as agreed by the Customer in accordance with the Agreement. Incidental Processing of Customer Personal Data by Repsly to ensure the security, operational maintenance, analysis or evaluation of the Services for the benefit of its customers and not having any adverse impact on the level of data protection of the Customer Personal Data shall not constitute Processing for Repsly’s own purposes.

 

  1. RIGHTS OF DATA SUBJECTS
    1. Correction, Blocking and Deletion. To the extent Customer, in its use of the Services, does not have the ability to correct, amend, transfer, block or delete Customer Personal Data, as required by Data Protection Legislation, Repsly shall comply with any commercially reasonable request by Customer to facilitate such actions to the extent Repsly is legally permitted to do so. Customer shall be responsible for any costs arising from Repsly’s provision of such assistance to the extent legally permitted.
    2. Data Subject Requests. Repsly shall, to the extent legally permitted, promptly notify Customer if it receives any complaint, notice or request from a Data Subject related to that person’s Personal Data or either party’s compliance with Data Protection Legislation. Repsly shall not respond to any such Data Subject request without Customer’s prior written consent.

 

  1. SUB-PROCESSORS
    1. Appointment of Sub-processors. Customer acknowledges and agrees and herewith consents that Repsly may engage third-party Sub-processors in connection with the provision of the Services. A current list of Sub-processors is available upon Customer’s request. Repsly will enter into a written agreement with the Sub-processor in order to impose upon such Sub-processors the same data protection obligations as set out in this DPA including in particular the requirement of sufficient guarantees to implement appropriate technical and organisational security measures to help meet the requirements of Data Protection Legislation. Such written agreement shall be co-terminus with the termination or expiry of this DPA. Repsly may engage sub-contractors that may provide accessory contractual obligations of Repsly under the Agreement and which are not to be regarded as Sub-processors of Personal Data.
      Where Data Protection Legislation requires the Customer to enter into a direct contractual relationship with Repsly’s Sub-processors, Customer hereby authorizes and empowers Repsly to enter into the necessary agreements with Repsly’s Sub-processors on Customer’s behalf. The parties agree that copies of Sub-processor agreements provided to Customer by Repsly upon request may have all commercial information or clauses unrelated to data processing removed by Repsly beforehand.
    2. Liability. Repsly shall be liable for the acts and omissions of its Sub-processors to the same extent Repsly would be liable if performing the Services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
    3. List of Current Sub-processors and Notification of new Sub-processors. Repsly may remove, replace or appoint suitable and reliable further Sub-processors in its sole discretion. Repsly will inform Customer about any changes to the list of Sub-processors in a timely fashion, including by announcing them to the Customer through automated notices. Customer may object to any change of Sub-processors in writing on legitimate grounds based on data protection or security concerns within 10 business days after receipt of Repsly’s notice, and, if Customer objects so, Repsly will use reasonable efforts to make available to Customer a change in the affected Services or recommend a commercially reasonable change to Customer’s configuration or use of the affected Services to avoid processing of Customer Personal Data by the objected-to new Sub-processor without unreasonably burdening Customer. If Repsly is unable to make available such change within a reasonable period of time, which shall not exceed sixty (60) days, Customer may terminate the applicable Order Document(s) in respect only to those Services which cannot be provided by Repsly without the use of the objected-to new Sub-processor, by providing written notice to Repsly. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated Services.

 

  1. SECURITY
    1. Controls for the Protection of Personal Data. Repsly will provide technical and organizational security measures (TOMS) for protection of the security, confidentiality and integrity of Customer Personal Data as set forth in Repsly then current TOMS documentation as updated from time to time, as long as the update does not materially diminish the protection level, a current copy of which is attached as Appendix 2 to the Standard Contractual Clauses.
    2. Third-Party Certifications and Audits. Upon Customer’s written request at reasonable intervals, Repsly shall provide a copy of Repsly’s then most recent third-party audits or certifications, as applicable, or any summaries thereof that Repsly generally makes available to its customers at the time of such request evidencing Repsly’s compliance with Section 5.1. In the absence of such audits or certificates, Customer may at its own cost, audit the technical and organizational measures taken by Repsly by a mutually agreed expert providing a testimonial or its expert’s opinion documenting the resulting findings. Customer may personally audit Repsly but only if a further audit is required by Customer’s or another Data Controller’s data protection authority or regulator. Customer will keep Repsly trade secrets, data security measures, and information disclosed in connection with any audit confidential in accordance with the confidentiality provisions of the Agreement.
    3. Audit restrictions.
      1. Unless required by mandatory Data Protection Legislation, an audit pursuant to Section 5.2 (Third-Party Certifications and Audits) is limited to once in any twelve-month period.
      2. An audit may not exceed three business days.
      3. Customer shall provide Repsly with reasonable prior written notice (at least 60 days unless a data protection authority requires Customer’s earlier control under mandatory Data Protection Legislation).
      4. Customer and Repsly shall mutually agree the scope and determine the agenda of the audit in advance. The audit shall, to the extent possible, rely on certifications and audit reports or other verifications available to confirm Repsly’s compliance with and exclude any repetitive audits.
      5. Customer shall conduct the audit under reasonable time, place and manner conditions and provide Repsly with a copy of the audit report and will inform Repsly without undue delay and comprehensively about any errors or irregularities related to Processing of Customer Personal Data detected during the audit.
      6. If an audit determines that Repsly is required to take corrective technical and/or organizational security measures, Repsly will at its sole discretion determine which measures are best suitable to ensure compliance and perform such measure within a reasonable time frame.
    4. Data Protection Checks by the Data Protection Authorities. Repsly will provide the Customer and regulators (as applicable) with all information and assistance necessary to investigate security breaches or otherwise to demonstrate that the Services comply with Data Protection Legislation to the extent that such inspections concern the Processing of Customer Personal Data under this DPA, and will without undue delay implement the requirements of the data protection authority in agreement with and at the cost of the Customer.

 

  1. RETURN AND DELETION OF CUSTOMER PERSONAL DATA
    Within 30 days of expiration of this DPA, Repsly will return to Customer all the Customer Personal Data and any copies thereof or will destroy all the Customer Personal Data and certify to Customer that it has done so, unless Data Protection Legislation or any regulation imposed upon Repsly prevents it from returning or destroying all or part of the Customer Personal Data. In that case, Repsly will continue to keep Customer Personal Data confidential in accordance with the confidentiality provisions of the Agreement and this DPA and will not process the Customer Personal Data after expiration. Any additional cost arising in connection with the return or deletion of Customer Personal Data after expiration of the DPA will be borne by Customer.

 

  1. INTERNATIONAL TRANSFER OF EU PERSONAL DATA
    1. Transfer Outside European Union or the European Economic Area. Except as set out in this Section 7 or the Agreement, Repsly will not transfer the Customer Personal Data outside the European Union or the European Economic Area (“EEA”) without the prior written consent of the Customer.
    2. Application of Standard Contractual Clauses. As at the date of this Agreement Customer acknowledges that Repsly shall process Customer Personal Data in the U.S.A. Accordingly, on execution of this DPA, the parties shall execute the Standard Contractual Clauses in Attachment 1 to enable Repsly to process Customer Personal Data outside of the EEA in the course of providing the Services listed in Appendix 2 to the Standard Contractual Clauses (“Covered Services”).
    3. The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer established within the EEA and Switzerland that have purchased Covered Services on the basis of an Order Document. For the purpose of the Standard Contractual Clauses and this Section 7, the aforementioned entities shall be deemed “Data Exporters.”
    4. The Standard Contractual Clauses will apply in addition to the terms and conditions of the DPA but will prevail in case of any conflict or inconsistency between the DPA and the Standard Contractual Clauses.
    5. The parties agree that if the Standard Contractual Clauses cease to exist or are no longer considered to be lawful method of transferring Customer Personal Data outside of the EEA, Repsly shall at its own cost comply with any alternative mechanism to enable the Customer Personal Data to be transferred outside of the EEA in a compliant manner.

 

  1. INDEMNITY
    The parties agree to indemnify each other in respect of any liability or compensation paid to a data subject in response to a claim from a data subject or a supervisory body on its behalf or any fines payable which result from the act or omission of the other party.

 

 

 


 

 

 

ATTACHMENT 1

Standard Contractual Clauses (processors)

 

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

Name of the data exporting organisation: Customer under Agreement (the data exporter)

 

and

 

Name of the data importing organisation: Repsly, Inc.

 

Address: 77 Summer Street, Boston Massachusetts USA 02110

Tel.: +1-617-356-8125; e-mail: support@repsly.com

(the data importer)

 

each a “party”; together “the parties”,

 

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

 

Clause 1

 

Definitions

 

For the purposes of the Clauses:

  1. 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. 'the data exporter' means the controller who transfers the personal data;
  3. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

Clause 2

 

Details of the transfer

 

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

 

Clause 3

 

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

 

Clause 4

 

Obligations of the data exporter

The data exporter agrees and warrants:

  1. That the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. That it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
  3. That the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. That after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. That it will ensure compliance with the security measures;
  6. That, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. To forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. To make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. That, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. That it will ensure compliance with Clause 4(a) to (i).

 

Clause 5

 

Obligations of the data importer

The data importer agrees and warrants:

  1. To process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. That it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. That it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. That it will promptly notify the data exporter about:
  5. Any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
  6. Any accidental or unauthorised access, and
  7. Any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  8. To deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  9. At the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  10. To make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  11. That, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  12. That the processing services by the subprocessor will be carried out in accordance with Clause 11;
  13. To send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

 

Clause 6

 

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

 

Clause 7

 

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. To refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. To refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

 

Clause 8

 

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

 

Clause 9

 

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

 

Clause 10

 

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

 

Clause 11

 

Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
  2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

 

Clause 12

 

Obligation after the termination of personal data processing services

  1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

 

On behalf of the data exporter:

 

Customer under Agreement

 

On behalf of the data importer:

 

Name (written out in full): Repsly, Inc.             

Address:  77 Summer Street, Boston, Massachusetts USA 02110

 

 

 


 

 

 

Appendix 1 to the Standard Contractual Clauses

 

This Appendix forms part of the Clauses and must be completed and signed by the parties. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

 

Data exporter

Data Exporter is the legal entity that has executed the Standard Contractual Clauses as a Data Exporter established within the European Economic Area (EEA) and/or Switzerland that have purchased Covered Services on the basis of one or more order document(s).

 

Data importer

Repsly, Inc. which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.

 

Data subjects

Data exporter may submit Personal Data to the Covered Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

☒ Prospects, customers, business partners and vendors of data exporter (who are natural persons)

☒ Employees or contact persons of data exporter’s prospects, customers, business partners and vendors

☒ Employees, agents, advisors, freelancers of data exporter (who are natural persons)

☒ Data exporter’s Users authorized by data exporter to use the Covered Services

 

Categories of data

Data exporter may submit Personal Data to the Covered Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

☒ First and last name

☒ Title

☒ Position

☒ Employer

☒ Contact information (company, email, phone, physical business address)

☒ ID data

☒ professional life data

☒ personal life data

☒ connection data

☒ localisation data

 

Special categories of personal data (if appropriate)

Data exporter may submit special categories of personal data to the Covered Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation:

 

Processing operations

The objective of Processing of Personal Data by data importer is the performance of the following Covered Service pursuant to the Agreement and any order document: Repsly services.

 

 

 


 

 

 

Appendix 2 to the Standard Contractual Clauses

Description of the technical and organisational security measures implemented by the data importer

 

 

Keeping customer data safe and secure is a huge responsibility and a top priority for Repsly. We work hard to protect our customers from the latest threats. We store all our own sensitive information on the same servers our customers do. We don’t want our information compromised, so we’re motivated by self-preservation as well. Aligning our goals with your goals is the best way to see eye-to-eye on the need to keep everything as secure as we can.

 

 

  1. ACCESS CONTROL AND ORGANIZATIONAL SECURITY
    1. Personnel. All our employees and contractors (workers) sign confidentiality agreements before gaining access to our code and data. Background checks aren’t performed on our workers. Everybody at Repsly is trained and made aware of security concerns and best practices for their systems. Remote access to servers is via our VPN, and limited to workers who need access for their day to day work. We log all access to all accounts by IP address.

      All computers used by Repsly workers are protected using a standard security measures, are behind firewall, have their systems automatically patched and Windows machines have anti-virus software installed.

  2. DATA PROTECTION AND PRIVACY
    1. Data Location. Our primary data center is in the United States, in Washington DC, provided by IBM, in the IBM Cloud Softlayer data center. We also use Amazon AWS, Elastic and Mongo, and all this data is stored in AWS us-east-1 data center in Northern Virginia. All data is written to multiple disks instantly, backed up every 10 minutes, and stored in multiple locations. Files that our customers upload are stored on servers that use modern techniques to remove bottlenecks and points of failure. Our software infrastructure is updated regularly with the latest security patches.

    2. Encryption in transit. Over public networks we send data using strong encryption. We use SSL certificates issued by GeoTrust Inc, RapidSSL CA. We use RSA 2048 bits certificate and SHA256 with RSA signature alorithm. You can check our currently supported ciphers here: https://www.ssllabs.com/ssltest/analyze.html?d=repsly.com&latest.
    3. Law enforcement. Repsly won’t hand your data over to law enforcement unless a court order says we have to. We flat-out reject requests from local and federal law enforcement when they seek data without a court order. And unless we’re legally prevented from it, we’ll always inform you when we receive such requests.

    4. GDPR. This policy applies to all personal data from the European Union and from Switzerland that is collected, used and retained by us in the United States.

    5. Data deletion. All users can delete all of their data using the app during the trial period. Data from production usage remains in our system until user request their data to be deleted by our support team.
  3. INCIDENT MANAGEMENT AND DISASTER RECOVERY
    1. Incident management. Our services are constantly being monitored by several mechanisms. The aggregated monitoring systems are pushed over to alarming system that in turn uses e-mail and phone-calls are alarming channels to incidents management team. Customer success team is providing customer requests support.
    2. Data redundancy and backups. Data is constantly written in two different locations, and backups are done on regular schedule every 10 minutes. Backups are stored with our data center in Washington DC. 10-minute transaction log and differeential daily backups are keps for two months, and weekly full data backup is kept for 6 months, and after backup it is deleted.

  4. CONCLUSION
    Repsly has a 10 years history of providing service to customers. Security maintenance, outage and data breach prevention are our bread and butter and are in the core of our efforts to provide our customers with trustworthy, robust and reliable platform. This has been recognized by hudreds of companies world wide. We’ll continue to work hard every day to maintain that trust. Longevity and stability is core to our mission at Repsly.