Data Processing Agreement
Last updated March 16, 2021
The terms of this Data Processing Agreement (“DPA”) govern your use of the “Application Services” of Pelcro Inc. (“Pelcro”) as defined in the online Terms you have entered into with Pelcro, or the “Services” as defined in the SAAS Agreement you have entered into with Pelcro (either one in this DPA, the “Services”). If you do not agree to the terms of this DPA, do not use Pelcro's Services. By accepting the terms below or by using Pelcro's Services in any manner, you and the entity you represent (“Company”) agree that you have read and agree to be bound by this DPA. Pelcro and Company may collectively be referred to as the “Parties” in this DPA.
(A) WHEREAS the Company wishes to subcontract certain Services, which imply the processing of personal data, to Pelcro, the "Data Processor". Any reference to Data Processor in this DPA shall mean Pelcro. The Parties agree that in respect of any Personal Data processed in connection with this DPA that Company shall be the "Data Controller".
(B) WHEREAS the Parties seek to implement a DPA 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).
(C) WHEREAS the Parties wish to specify their respective rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
1.1.1 “DPA” means this Data Processing Agreement and all Schedules;
1.1.2 “Company Personal Data” means any Personal Data Processed by either Pelcro or a Contracted Processor on behalf of Company pursuant to or in connection with the Terms or SAAS Agreement, as applicable;
1.1.3 “Contracted Processor” means a Sub-Processor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. “Applicable Laws” includes any applicable law to any party, including but not limited to Data Protection Laws;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “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;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
22.214.171.124 a transfer of Company Personal Data from Company to the Data Processor; or
126.96.36.199 an onward transfer of Company Personal Data from Data Processor to a Contracted Processor or between two establishments of a Contracted Processor;
1.1.9 “Sub-Processor” means any person appointed by or on behalf of Data Processor to process Personal Data on behalf of Company in connection with the DPA, and as further specified in section 5.
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 related terms shall be construed accordingly.
2. Processing of Company Personal Data
2.1 Data Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
2.1.2 not Process Company Personal Data other than on the Company’s documented instructions, except if required pursuant to Member State law to which Data Processor is subject, in which case Data Process shall inform Company of such requirement before Processing unless prohibited by the Member State law on the basis of public interest.
2.2 Company instructs Data Processor to Process Company Personal Data as is necessary to provide its Services to the Company.
2.3 The Data Subjects under this DPA are customers of the Company.
2.4 The “Data Processing Activities” include facilitating payment transactions, subscriptions, and authentication on behalf of the Company.
2.5 The Company Personal Data necessary to conduct the Data Processing Activities include information such as customer name, address, location, and email, and are further detailed in Schedule 1.
3. Data Processor Personnel
Data Processor shall take reasonable steps to ensure the reliability of its own employees and agents, and any employee, agent or contractor of any Contracted Processor who may have access to Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the DPA, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 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 Company Personal 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.
4.2 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.
5.1 Appointment of Sub-Processors. Company acknowledges and agrees that: (a) Data Processor affiliates may be retained as Sub-Processors; and (b) Data Processor and Data Processor affiliates may engage third-party Sub-Processors in connection with the provision of the Services. Data Processor or a Data Processor affiliate will enter into a written agreement with the Sub-Processor imposing on the Sub-Processor the same data protection obligations as those imposed on Data Processor under this DPA with respect to the protection of Company Personal Data. In case the Sub-Processor fails to fulfill its data protection obligations under such a written agreement with Data Processor, Data Processor will remain liable to the Company for the performance of the Sub-Processor’s obligations under such agreement.
5.2 List of Current Sub-Processors. the Data Processor shall make available a list of Sub-Processors for the Services. A current list of the Pelcro Sub-Processors can be found here. Pelcro will update the list to reflect any addition, replacement or other changes to Pelcro’s Sub-Processors.
5.3 Authorization. Company’s acceptance of this DPA shall be considered written authorization for Pelcro to engage the Sub-Processors on the list referred to in section 5.2 to process Company Personal Data.
6. Data Subject Rights
6.1 Taking into account the nature of the Processing, Data Processor shall assist Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Company obligations, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Data Processor shall:
6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2.2 6.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Data Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before Data Processor or Contracted Processor responds to the request.
7. Personal Data Breach
7.1 Data Processor shall notify Company without undue delay upon Data Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Data Processor shall co-operate with Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation. Data Processor shall provide reasonable assistance to Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required pursuant to articles 32 to 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, Pelcro or the Contracted Processors.
9. Deletion or return of Company Personal Data
9.1 At the choice of the Company, Data Processor shall promptly and in any event within 3 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), return or delete all copies of the Company Personal Data, unless further storage of the Personal Data is required or authorized by Applicable Law.
10. Audit rights
10.1 Subject to this section 10, Data Processor shall make available to Company on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by Company or an auditor mandated by Company in relation to the Processing of Company Personal Data by Pelcro or the Contracted Processors.
10.2 Information and audit rights of Company only arise under section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
10.3 Data Processor shall immediately inform Company if any Company instructions related to this section 10 infringes EU Data Protection Laws.
11. Data Transfer
11.1 The Parties agree that Data Processor may transfer Personal Data Processed under this DPA outside the European Economic Area (“EEA”) or Switzerland as necessary to provide the Services. If Data Processor transfers Company Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Data Processor will ensure that the relevant third party executes the standard contractual clauses set out in Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (“Model Clauses”) and shall ensure that it and the relevant third party complies with the relevant obligations under the Model Clauses or such other lawful mechanism as may be agreed by Company and Data Processor.
12. General Terms
12.1 Notices. All notices and communications given under this DPA shall be governed by the notice provisions in the Terms or SAAS Agreement you have entered into with Pelcro, as applicable.
13. Governing Law and Jurisdiction
13.1 The governing law and jurisdiction of this DPA shall be the same as that in the Terms or SAAS Agreement you have entered into with Pelcro, as applicable.
Schedule 1 – Categories of Personal Data Processed under the DPA
The Data Processor processes the following types of Personal Data in connection with its delivery of the Services and the Data Processing Activities:
Information required for facilitating payment transactions, subscriptions, and authentication on behalf of the Company, specifically:
- Billing address
- Payment information
- Device information
If you have any questions or concerns, you may contact us at:
Email us at [email protected].
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