Data Processing Addendum ("DPA")
This agreement is made between _________, (“Customer”) and dscout, Inc., a company constituted under the laws of the state of Delaware in the United States with an address at 222 N LaSalle Street, Suite 650, Chicago IL 60601 (“dscout”) (together, the “Parties”).
WHEREAS the Parties have entered into a Master Access Agreement (the “Agreement”);
In consideration of the ongoing obligations of the parties under applicable data protection laws and under the Agreements referred to above, the parties agree as follows:
1. DATA PROTECTION
1.1 Each Party shall comply with the obligations imposed on such Party by the EU General Data Protection Regulation and EU member states laws implementing the same, the California Consumer Privacy Act, and other applicable data protection law (“Data Protection Legislation”) to the extent that those obligations are pertinent to performing the obligations under the Agreement.
1.2 The terms "Data Controller", “Data Processor,” "Data Subject", “Personal Data Breach,” and "Personal Data" shall be interpreted in accordance with the applicable Data Protection Legislation. All other terms are defined in the Agreement, as applicable.
2. ROLES OF THE PARTIES
2.1 The Parties agree that each party acts as an independent Data Controller of data provided by Scouts and data collected from Scouts through the dscout platform, including but not limited to Scout Profile Information, Screener Data and Mission Entries (collectively, “Scout Data”) for the purposes of the Data Protection Legislation be a Data Controller in respect of Personal Data. Scout Data is not “transferred” to dscout by Customer. With respect to Scout information, such as name as email address, provided directly by Customer or Customer employee information provided by Customer to enable access to the dscout platform (together, “Customer Data”), dscout shall act as a Data Processor.
2.2 Each Party represents, warrants and undertakes to the other that they have complied and shall at all times continue to comply with, all obligations imposed on them by the Data Protection Legislation.
2.3 No Party shall take any action or make any omission in relation to Personal Data which would cause the other Party to breach its obligations under the Data Protection Legislation.
3. DATA CONTROLLER OBLIGATIONS
3.1 Data Incidents: Each Party shall notify the other promptly without undue delay and in any event within 48 hours of becoming aware of any loss or unauthorized access to personal data of the other (a “breach”) and provide reasonable assistance to the other in order to address such breach.
3.2 Data Subject Requests: Each Party shall be responsible for responding to and, if required, complying with, any data subject requests to exercise rights under Data Protection Legislation with respect to Personal Data over which it is a Controller, or a request purporting to exercise such rights, (collectively, a “Request”), or a complaint related to the Processing of such data. Without limiting the foregoing:
3.2.1 Where either Party knowingly receives a Request relating to Personal Data processed under the Agreement and over which the other Party is a Controller, the Party shall notify the other Party, as soon as reasonably practical and in any event within three (3) business days of the Request and permit such other Party to manage the response which respect to the Personal Data in such other Party’s possession.
3.3 Supervisory Requests: Each Party shall provide reasonable assistance to and cooperation with the other Party for their consultation with supervisory authorities in relation to the transfer, control, and processing of Personal Data involved in this Agreement.
4. DATA PROCESSOR OBLIGATIONS
Data Processor shall, in relation to Customer Data containing personal data processed in connection with the performance by the Data Processor of its obligations under this DPA:
4.1 process that Customer Data only on the documented written instructions of the Customer, which includes this DPA and the Master Access Agreement, unless the Data Processor is required by applicable laws to otherwise process that personal data in which case Data Processor shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit such notice;
4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Data;
4.3 ensure that all personnel who have access to and/or process Customer Data are obliged to keep the Customer Data confidential;
4.4 not transfer any Customer Data outside of the European Economic Area and the United Kingdom unless either: the Commission has decided, in accordance with Article 45 of the General Data Protection Regulation ((EU) 2016/679), that the third country (or sector thereof), territory, or international organisation to which personal data is to be transferred, ensures an adequate level of protection; or pursuant to an transfer mechanism that is compliant with Data Protection Legislation, which may include but is not limited to approved Standard Contractual Clauses;
4.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.6 notify the Customer without undue delay, and where practicable, within 48 hours, on becoming aware of a Personal Data Breach of Customer Data;
4.7 at the written direction of the Customer, delete or return Customer Data and copies thereof to the Customer on termination of the DPA unless required by applicable law to store the Customer Data;
4.8 maintain complete and accurate records and information to demonstrate its compliance with this Section 4 and allow for audits by the Customer or the Customer’s designated auditor, only so far as is necessary in order to demonstrate compliance, provided that the Customer: provides no less than 30 days’ written notice of such audit or inspection; and the parties agree the scope, duration, and purpose of such audit or inspection in advance. Customer shall conduct its audit in a manner that will result in minimal disruption to Data Processor’s business operations and shall not be entitled to receive data or information of other clients of Data Processor or any other confidential information of Data Processor that is not directly relevant for the authorized purposes of the audit. If the Customer becomes privy to any confidential information of the Data Processor as a result of this Section, the Customer shall hold such confidential information in confidence and, unless required by law, not make the confidential information available to any third party, or use it for any other purpose. The Customer acknowledges that the Data Processor shall only be required to use reasonable endeavors to assist the Data Controller in procuring access to any third-party assets, records or information as part of any audit; and
4.9 inform the Customer immediately if, in the Data Processor’s opinion, an instruction from the Customer infringes (or, if acted upon, might cause an infringement of) the Data Protection Legislation.
4.10 Third-party processors
4.10.1 Customer acknowledges and consents generally to the appointment by the Data Processor of third parties as sub-processors of the Customer Data being processed under this DPA.
4.10.2 Data Processor confirms that: (a) it shall impose on all sub-processors the same data protection obligations as set out in Section 4; and (b) the Data Processor shall remain fully liable for the actions of its sub-processors at all times.
4.10.3 Data Processor shall give the Customer notice of the appointment of any new sub-processors. Customer may reasonably object to such appointment within ten (10) U.S. business days of such notice. If Customer objects to such changes, Customer will give Data Processor the opportunity to make a change in the service or recommend a commercially reasonable change to Customer’s configuration to avoid processing of personal data by the objected-to new subprocessor without unreasonably burdening Customer.
5.1 If Customer exports Customer Data from the European Economic Area (“EEA”), Switzerland, or the United Kingdom (“EU Personal Data”) to a dscout, the Parties agree to be bound by the standard contractual clauses for the transfer of Personal Data to controllers established in third countries, attached as Exhibit A to this Addendum.
Standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Data transfer agreement
hereinafter “data exporter”
222 N LaSalle Street
Chicago IL 60601 USA
hereinafter “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:
(a) ‘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 (1);
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘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;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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;
(e) ‘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;
(f) ‘technical and organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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 sub-processor 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 sub-processor 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:
(a) 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;
(b) 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;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) 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, unauthorized 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;
(e) that it will ensure compliance with the security measures;
(f) 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;
(g) to forward any notification received from the data importer or any sub-processor 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;
(h) 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;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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
(j) that it will ensure compliance with Clause 4(a) to (I).
Clause 5: Obligations of the data importer
The data importer agrees and warrants:
(a) 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;
(b) 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;
(c) that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
- (i) 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;
- (ii) any accidental or unauthorized access; and
- (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
(e) 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;
(f) 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;
(g) 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;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor 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 sub-processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor 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:
- (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- (b) 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 sub-processor, 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 sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, 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, namely…
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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses (3). Where the sub-processor fails to fulfill 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 sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects 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, namely …
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 sub-processor 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 sub-processor 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.
APPENDIX 1: DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects:
- Customer Employees and if provided directly by Customer, Scouts.
Purposes of the transfer(s)
The transfer is made for the following purposes:
- To enable Customer access to the Services and to allow dscout to provide the Services outlined in the Agreement.
Categories of data
The personal data transferred concern the following categories of data:
- Employee contact information (e.g., name, email address) and, if provided directly by Customer to invite Scout to the service, Scout contact information (e.g., name and email address).
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
- The recipients of the Personal Data include dscout employees with a need to Process the Personal Data.
- dscout service providers
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data: Not applicable.
Data protection registration information of data exporter (where applicable)
Additional useful information (storage limits and other relevant information)
- The personal data transferred may be stored for the period necessary to fulfill the intended purpose for which the data was collected and further processed, unless otherwise required by applicable law.
Contact points for data inquiries
We refer to the contact information included on the signature pages.
We refer to the contact information included on the signature pages.