Data Processing Addendum
This Data Processing Addendum (“Addendum”) supplements the master agreement (or electronic terms of service, as applicable) entered into by and between Propel Data Cloud, Inc. (“Company”) and the end customer that executed such agreement with Company (“Customer”) (“Agreement”). Customer enters into this Addendum on behalf of itself and, to the extent required under applicable Data Protection Laws (defined below), in the name and on behalf of its Affiliates (defined below), if any. This Addendum incorporates the terms of the Agreement, and any terms not defined in this Addendum shall have the meaning set forth in the Agreement.
1.1 “Account” means Customer’s account in the Service in which Customer stores and processes Customer Data.
1.2 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
1.1 “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Company to perform its obligations under this Addendum or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this Addendum.
1.2 “Company Account Data” means personal data that relates to Company’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s Account and billing information of individuals that Customer has associated with its account. Company Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.
1.3 “Company Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.
1.4 “Data Exporter” means Customer.
1.5 “Data Importer” means Company.
1.6 “Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data under the Agreement, including but not limited to European Data Protection Laws, the California Consumer Privacy Act (“CCPA”), and California Privacy Rights Act 2020 (“CPRA”). The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.
1.7 the “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic
Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR.
1.8 “ex-UK Transfer” means the transfer of Personal Data, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018.
1.9 “Services” shall have the meaning set forth in the Agreement.
1.10 “Standard Contractual Clauses” means the: (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission's Implementing Decision 2021/914 of 4 June 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 (“EU SCCs”); and (ii) where the UK GDPR applies, standard data protection clauses adopted pursuant to or permitted under Article 46 of the UK GDPR (“UK SCCs”).
2. Relationship of the Parties; Processing of Data
2.1 The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this Addendum or the Agreement, Company is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith.
2.2 Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this Addendum or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws. Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.
1.3 The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this Addendum.
2.3 Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the UK SCCs and Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request.
2.4 CCPA. Except with respect to Company Account Data and Company Usage Data, the parties acknowledge and agree that Company is a service provider for the purposes of the CCPA (to the extent it applies) and is receiving personal information from Customer in order to provide the Services pursuant to the Agreement, which constitutes a business purpose. Company shall not sell any such personal information. Company shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Company certifies that it understands the restrictions of this Section 2.5.This section applies equally to the CPRA.
Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company’s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this Addendum, the Agreement, or the provision of Services to Customer.
In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Propel will have the right to immediately suspend Customer’s access to the Platform if deemed necessary by Propel to prevent any harm to Propel or its business. Propel will provide notice to the Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured to Propel’s satisfaction, Propel will restore access to the Platform.
4. Authorized Sub-Processors
4.1 Customer acknowledges and agrees that Company may (1) engage its Affiliates and the Authorized Sub-Processors identified on the List (as defined below) to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this Addendum, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.
4.2 A list of Company’s current Authorized Sub-Processors (the “List”) is set forth in Exhibit B. Such List may be updated by Company from time to time on ten (10) days email notice. At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Company within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.
4.3 If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company. Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement.
4.4 If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this Addendum.
4.5 Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Company under this Addendum with respect to the protection of Personal Data. In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.
4.6 If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 5(j) of the UK SCCs or Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.
5. Security of Personal Data.
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 shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Company’s technical and organizational security measures.
2. Transfers of Personal Data
5.1 Transfer. The parties agree that Company may transfer Personal Data processed under this Addendum outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this Addendum to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.
5.2 Restricted Transfers. Customer will operate as a data Controller and Company will operate as a data Processor, Processing Customer Personal Data only as necessary for the limited and specified purposes identified in the Agreement, and in accordance with at least the same level of protection as is required under the applicable Data Protection Law(s). To the extent Company Processes any Customer Personal Data subject to the EU GDPR or UK GDPR under the Agreement, any such transfer will be subject to the EU SCCs or UK SCCs, as applicable and as set forth under Section 6(b) and 6(c) below. Customer authorizes Company and its Sub‐Processors to make international transfers of Customer Personal Data in accordance with this DPA so long as applicable Data Protection Laws for such transfers are respected.
5.3 Transfers from the EEA. With respect to Customer Personal Data transferred from the European Economic Area (“EEA”), the EU SCCs incorporated herein shall apply, form part of this DPA, and take precedence over the rest of this DPA as set forth in the EU SCCs. They will be deemed completed as follows:
- Where Customer is a data exporter and controller, and Company is a data importer and processor, Module 2 shall apply. When Customer is a data exporter and processor, and Company is a data importer and subprocessor, Module 3 shall apply. References to Modules 1 and 4 in the EU SCCs shall not apply and language referencing these modules shall not be treated as part of this DPA.
- Clause 7, the “Docking Clause (Optional)”, will be deemed incorporated.
- Under Clause 9 (Use of sub‐processors), the Parties select Option 2 (general written authorization), and the time period for prior notice of addition or replacement of Sub‐Processors will be set forth in Section 4(2) of this DPA.
- Under Clause 11 (Redress), the optional requirement that data subjects be permitted to lodge a complaint with an independent dispute resolution body does not apply.
- Under Clause 17 (Governing law), the Parties choose Option 1 (the law of an EU Member State that allows for third‐party beneficiary rights). The Parties select the law of Ireland.
- Under Clause 18 (Choice of forum and jurisdiction), the Parties select the courts of Ireland.
- Annexes I-III are set forth below as Annex 1-3.
- By entering into this DPA, the Parties are deemed to be signing the EU SCCs and its applicable Annexes.
5.4 Transfers From Switzerland. With respect to Personal Data transferred from Switzerland for which Swiss law (and not the law in any EEA jurisdiction) governs the international nature of the transfer, references to the EU GDPR in Clause 4 of the EU SCCs are, to the extent legally required, amended to refer to the Swiss Federal Data Protection Act or its successor instead, and the concept of supervisory authority shall include the Swiss Federal Data Protection and Information Commissioner.
5.5 Transfers from the UK. With respect to Personal Data transferred from the United Kingdom for which United Kingdom law (and not the law in any EEA jurisdiction) governs the international nature of the transfer, the UK SCCs form part of this DPA and take precedence over the rest of this DPA as set forth in the UK SCCs, unless the United Kingdom issues updates to the UK SCCs that, upon notice from Customer, will control. Undefined capitalized terms used in this provision shall mean the definitions in the UK Standard Contractual Clauses. For purposes of the UK Standard Contractual Clauses, they shall be deemed completed as follows:
Table 1 of the UK SCCs: (1) the Parties’ details shall be the Parties and their Affiliates to the extent any of them is involved in such transfer, including those set forth in Annex 1; (2) the Key Contact shall be the contacts set forth in Annex 1.
Table 2 of the UK SCCs s: The Approved EU SCCs referenced in Table 12 shall be the EU SCCs as executed by the Parties.
Table 3 of the UK SCCs: Annex 1A, 1B, and II shall be set forth in Annex 1 and Annex 2 hereto.
Table 4 of the UK SCCs: Company may end this DPA as set out in Section 19 of the UK SCCs.
By entering into this DPA, the Parties are deemed to be signing the UK SCCs and its applicable Tables and Appendix Information.
5.6 Statutory Revisions to the EU SCCs or UK SCCs. In the event that the EU GDPR or UK GDPR require the use of revised standard contractual clauses applicable to this DPA, such revised standard contractual clauses shall automatically be deemed to replace the EU SCCs and/or UK SCCs, as applicable, without the need for any further action, unless Company otherwise informs Customer.
5.7 Impact Assessment. To the extent required by European Data Protection Laws, Company will provide reasonable assistance to Customer with any data protection impact assessments and prior consultations with supervisory authorities. Customer will be responsible to the extent legally permitted for any costs and expenses arising from any assistance by Company.
3. Rights of Data Subjects
5.8 Company shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.
5.9 Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Company’s assistance and (ii) Company is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
6. Actions and Access Requests; Audits
3.1 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
3.2 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.
6.1 Company shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.
6.2 Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 5(f) and Clause 12(2) of the UK SCCs and Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 8.4.
6.3 Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes the Data Protection Laws or Supervisory Authority.
6.4 In the event of a Personal Data Breach, Company shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).
6.5 In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
6.6 The obligations described in Sections 8.6 and 8.7 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Company’s obligation to report or respond to a Personal Data Breach under Sections 8.6 and
8.7 will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.
7. Company’s Role as a Controller
The parties acknowledge and agree that with respect to Company Account Data and Company Usage Data, Company is an independent controller, not a joint controller with Customer. Company will process Company Account Data and Company Usage Data as a controller (i) to manage the relationship with Customer; (ii) to carry out Company’s core business operations, such as accounting, audits, tax preparation and filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Customer; (iv) for identity verification purposes; (v) to comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Company is subject; and (vi) as otherwise permitted under Data Protection Laws and in accordance with this Addendum and the Agreement. Company may also process Company Usage Data as a controller to provide, optimize, and maintain the Services, to the extent permitted by Data Protection Laws.
In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this Addendum; and (3) the Agreement. Any claims brought in connection with this Addendum will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.
Details of Processing
Categories of data subjects whose personal data is transferred
The subjects that the customer elects to sync into Propel.
Categories of personal data transferred
The categories that the customer elects to sync into Propel.
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.
Any sensitive data that the customer elects to sync into Propel.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Duration of the processing
During the term of the Agreement
Nature of the processing
The data importer will process Customer Personal Data to provide, secure and monitor the Services for Customer.
Purpose(s) of the data transfer and further processing
Company will process Personal Data as necessary to provide the Services pursuant to the Agreement and as further instructed by Customer in Customer’s use of the Services.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The following includes the information required by Annex I and Annex III of the EU SCCs, and Appendix 1 of the UK SCCs.
2. Description of the Transfer
Where the data exporter is established in an EU Member State, the supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679, the supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established shall act as competent supervisory authority.
Where the data exporter is established in an EU Member State, the supervisory authority with responsibility for ensuring Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679, the Data Protection Commission (DPC) Ireland shall act as competent supervisory authority.
3. List of Authorized Sub-Processors
Description of the Technical and Organizational Security Measures implemented by the Data ImporterThe following includes the information required by Annex II of the EU SCCs and Appendix 2 of the UK SCCs.