This Data Processing Agreement (“DPA”) is incorporated into and forms part of the Terms of Service Agreement (the “Agreement”) between ARBOR STANDARD LTD. ("Arbor Standard" or “Company”) and the customer defined in the Agreement (“Customer”). By agreeing to the terms of the Agreement containing a link to this DPA, Customer is deemed to have signed this DPA, including its Annexes, as of the effective date of the Agreement. This DPA prevails over any conflicting term of the Agreement but does not otherwise modify the Agreement.
1.1. In this DPA:
“Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor”, and “Supervisory Authority” have the meaning given to them in the GDPR;
“Customer Personal Data” means any data of Customer provided to Company that constitutes Personal Data, the Processing of which is subject to Data Protection Law, for which Customer or Customer’s customers are the Controller, and which is Processed by Company to provide the Services;
“Data Protection Law” means General Data Protection Regulation (EU) 2016/679 (“GDPR”) and e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), and their national implementations in the European Economic Area (“EEA”), Switzerland and the United Kingdom (“UK”), each as applicable, and as may be amended or replaced from time to time;
“Data Subject Rights” means Data Subjects’ rights to information, access, rectification, erasure, restriction, portability, objection, and not to be subject to automated individual decision-making in accordance with Data Protection Law;
“International Data Transfer” means any transfer of Customer Personal Data from the EEA, Switzerland or the United Kingdom to an international organisation or to a country outside of the EEA, Switzerland and the UK and includes any onward transfer of Customer Personal Data from the international organisation or the country outside of the EEA, Switzerland or the UK to another international organisation or to another country outside of the EEA, Switzerland and the UK;
“Services” means the services provided by Company to Customer under the Agreement;
“Subprocessor” means a Processor engaged by Company to Process Customer Personal Data;
“Standard Contractual Clauses” means the clauses annexed to the EU Commission Implementing Decision 2021/914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council as amended or replaced from time to time; and
“UK Standard Contractual clauses” means the clauses annexed to EU Commission Decision 2010/87/EU, of February 5, 2010, on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council, as applicable in the UK, and as amended or replaced from time to time.
1.2. Capitalised terms used but not defined herein have the meaning given to them in the Agreement.
2. Scope and applicability
2.1. This DPA applies to Processing of Customer Personal Data by Company to provide the Services.
2.2.The subject matter, nature and purpose of the Processing, the types of Customer Personal Data and categories of Data Subjects are set out in Annex I.
2.3. Customer is a Controller and appoints Company as a Processor on behalf of Customer. Customer is responsible for compliance with the requirements of Data Protection Law applicable to Controllers.
2.4. If Customer is a Processor on behalf of other Controller(s), then Customer: is the single point of contact for Company; must obtain all necessary authorisations from such other Controller(s); undertakes to issue all instructions and exercise all rights on behalf of such other Controller(s); and is responsible for compliance with the requirements of Data Protection Law applicable to Processors.
2.5. Customer acknowledges that Company may Process Personal Data relating to the operation, support, or use of the Services for its own business purposes, such as billing, account management, data analysis, benchmarking, technical support, product development, and compliance with law. Company is the Controller for such Processing and will Process such data in accordance with Data Protection Law.
3.1. Company will Process Customer Personal Data to provide the Services and in accordance with Customer’s documented instructions.
3.2. The Controller’s instructions are documented in this DPA, the Agreement, and any applicable statement of work.
3.3. Customer may reasonably issue additional instructions as necessary to comply with Data Protection Law. Company may charge a reasonable fee to comply with any additional instructions.
3.4. Unless prohibited by applicable law, Company will inform Customer if Company is subject to a legal obligation that requires Company to Process Customer Personal Data in contravention of Customer’s documented instructions.
4.1. Company will ensure that all personnel authorised to Process Customer Personal Data are subject to an obligation of confidentiality.
5. Security and Personal Data Breaches
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, Company will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures listed in Annex I.D.
5.2. Customer acknowledges that the security measures in Annex I.D are appropriate in relation to the risks associated with Customer’s intended Processing and will notify Company prior to any intended Processing for which Company’s security measures may not be appropriate.
5.3. Company will notify Customer without undue delay after becoming aware of a Personal Data Breach involving Customer Personal Data. If Company’s notification is delayed, it will be accompanied by reasons for the delay.
6.1. Customer hereby authorises Company to engage Subprocessors. If Customer wishes to receive notification of Subprocessors, it should send an email to firstname.lastname@example.org with the subject line “Subscribe to Subprocessor Information.”
6.2. Company will enter into a written agreement with Subprocessors which imposes the same obligations as required by Data Protection Law.
6.3. Customer may reasonably object to the addition of a Subprocessor based on reasonable grounds relating to a potential or actual violation of Data Protection Law by providing written notice detailing the grounds of such objection within thirty (30) days following Company’s notification of the intended change. Customer and Company will work together in good faith to address Customer’s objection. If Company chooses to retain the Subprocessor, Company will inform Customer before authorising the Subprocessor to Process Customer Personal Data, and either party may immediately discontinue providing or using the relevant parts of the Services, as applicable, and may terminate the relevant parts of the Services within thirty (30) days.
7.1.Taking into account the nature of the Processing, and the information available to Company, Company will assist Customer, including, as appropriate, by implementing technical and organisational measures, with the fulfilment of Customer’s own obligations under Data Protection Law to: comply with requests to exercise Data Subject Rights; conduct data protection impact assessments, and prior consultations with Supervisory Authorities; and notify a Personal Data Breach.
7.2. Company will maintain records of Processing of Customer Personal Data in accordance with Data Protection Law.
7.3. Company may charge a reasonable fee for assistance under this Section 7. If Company is at fault, Company and Customer shall each bear their own costs related to assistance.
8.1.Upon reasonable request, Company must make available to Customer all information necessary to demonstrate compliance with the obligations of this DPA and allow for and contribute to audits, including inspections, as mandated by a Supervisory Authority or reasonably requested no more than once a year by Customer and performed by an independent auditor as agreed upon by Customer and Company. The foregoing shall only extend to those documents and facilities relevant and material to the Processing of Customer Personal Data and shall be conducted during normal business hours and in a manner that causes minimal disruption.
8.2.Company will inform Customer if Company believes that Customer’s instruction under Section 8.1 infringes Data Protection Law. Company may suspend the audit or inspection or withhold requested information until Company has modified or confirmed the lawfulness of the instructions in writing.
8.3.Company and Customer each bear their own costs related to an audit.
9. International Data Transfers
9.1. Customer hereby authorises Company to perform International Data Transfers to any country deemed adequate by the EU Commission or the UK Government, as appropriate; on the basis of appropriate safeguards in accordance with Data Protection Law; or pursuant to the Standard Contractual Clauses referred to in Section 9.2 or the UK Standard Contractual Clauses referred to in Section 9.3.
9.2. By signing this DPA, Company and Customer conclude module 2 (controller-to-processor) of the Standard Contractual Clauses, which are hereby incorporated and completed as follows: the “data exporter” is Customer; the “data importer” is Company; the optional docking clause in Clause 7 is implemented; Clause 9(a) option 1 is implemented and the time period therein is specified as thirty (30) days; the optional redress clause in Clause 11(a) is struck; if Customer is established in the EU, Clause 13(a) paragraph 1 is implemented, otherwise Clause 13(a) paragraph 2 or 3, as appropriate, is implemented; Clause 17 option 1 is implemented and the governing law is the law of Ireland; the court in Clause 18(b) are the Courts of Ireland; Annex I, II and III to module 2 of the Standard Contractual Clauses are Annex I of this DPA and the Subprocessor List respectively.
9.3. By signing this DPA, Company and Customer conclude the UK Standard Contractual Clauses which are hereby incorporated and completed as follows: the “data exporter” is Customer; the “data importer” is Company; the governing law in Clause 9 and Clause 11.3 of the UK Standard Contractual Clauses is the law of England and Wales; the information in Appendix 1 to the UK Standard Contractual Clauses is provided in Annex I to this DPA; Appendix 2 to the UK Standard Contractual Clauses is Annex I.D to this DPA; and the optional indemnification clause is struck. In addition, the following changes apply: (i) references to Data Protection Law are replaced with references to applicable UK data protection law, (ii) references to the EU or Member States are replaced with references to the UK, (iii) references to EU authorities are replaced with references to the competent UK authorities.
9.4. If Company’s compliance with Data Protection Law applicable to International Data Transfers is affected by circumstances outside of Company’s control, including if a legal instrument for International Data Transfers is invalidated, amended, or replaced, then Customer and Company will work together in good faith to reasonably resolve such non-compliance. In the event that additional, replacement or alternative Standard Contractual Clauses or UK Standard Contractual Clauses are approved by Supervisory Authorities, Company reserves the right to amend the Agreement and this DPA by adding to, changing or replacing, the Standard Contractual Clauses or UK Standard Contractual Clauses that form part of it at the date of signature in order to ensure continued compliance with Data Protection Law.
10.1. Customer will send all notifications, requests and instructions under this DPA to Company’s Legal Department via email to email@example.com. Company will send all notifications under this DPA to Customer’s account owner email address, or to the email address(es) for which Customer elects to receive legal communications.
11.1. Subject to any limitation of liability set out in the Agreement, to the extent permitted by applicable law, where Company has paid damages or fines, Company is entitled to claim back from Customer that part of the compensation, damages or fines, corresponding to Customer’s part of responsibility for the damages or fines.
12. Termination and return or deletion
12.1. This DPA is terminated upon the termination of the Agreement.
12.2Customer may request return of Customer Personal Data up to ninety (90) days after termination of the Agreement. Unless required or permitted by applicable law, Company will delete all remaining copies of Customer Personal Data within one hundred eighty (180) days after returning Customer Personal Data to Customer.
13. Modification of this DPA
13.1.This DPA may only be modified by a written amendment signed by both Company and Customer.
14. Invalidity and severability
14.1. If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
LIST OF PARTIES
Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union.
Name: Customer and its Controller affiliates
Contact details: Customer’s account owner email address, or to the email address(es) for which Customer elects to receive legal communications.
Contact person’s name, position and contact details: Customer’s contact as provided in connection with the execution of the Agreement.
Activities relevant to the data transferred under these Clauses: Performance of services pursuant to the Agreement.
Signature and date: By entering into the Agreement containing a link to this DPA, Data Exporter is deemed to have signed this DPA and Annex I as of the effective date of the Agreement
Role (controller/processor): Controller.
Identity and contact details of the data importer(s), including any contact person with responsibility for data protection.
Name: ARBOR STANDARD LTD.
Address: 107 Fleet Street, London, The United Kingdom EC4A 2AB
Contact Email: firstname.lastname@example.org
Activities relevant to the data transferred under these Clauses: Arbor Standard offers and operates a software platform for live streaming and other XR content
Signature and date: By entering into the Agreement containing a link to this DPA, Data Importer is deemed to have signed this DPA and Annex I as of the effective date of the Agreement.
Role (controller/processor): Processor
DESCRIPTION OF TRANSFER
Categories of Data Subjects whose personal data is transferred.
Customers may submit personal data to the Services, the extent to which is determined and controlled by the Customer and which may include, but is not limited to, personal data relating to the following categories of data subjects:
Customer’s personnel, staff and contractors;
Customer’s users, authorised by Customer to use the Services;
Customer’s agents; and/or
Third parties with which Customer conducts business.
Categories of personal data transferred;
Customers may submit personal data to the Services, the extent to which is determined and controlled by the Customer and which may include, but is not limited to, the following categories of personal data:
First and last name;
Contact information (company, email, phone, physical business address);
Professional life data;
Personal life data; and/or
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The Services are not intended to Process special categories of data.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
On a continuous basis.
Nature of the processing
The data will be transferred for the provision of the Services as set out in the Agreement.
Purpose(s) of the data transfer and further processing
To provide the Services to Customer.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Personal Data will be retained for as long as necessary taking into account the purpose of the Processing, and in compliance with applicable laws, including laws on the statute of limitations and Data Protection Law.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
For the subject matter and nature of the Processing, reference is made to the Agreement and this DPA. The Processing will take place for the duration of the Agreement.
COMPETENT SUPERVISORY AUTHORITY
The supervisory authority of the country in which the Customer is established, or the country in which the Customer’s EU representative is established, or another country in which the data subjects are located, as appropriate, shall act as competent supervisory authority.
Last Updated [30.05.2022]