Table of Contents
This Data Processing Addendum (“DPA”) is incorporated by reference into Descope’s Terms of Use or other agreement governing the use of Descope’s services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, "your”, “Customer”), and the Company (as such term is defined under the Agreement), (herein, “Descope”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by Descope solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”.
Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
By using the Services, Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.
In the event of any conflict between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Affiliate” means any of Customer's Affiliate(s) which is explicitly permitted to use the Services pursuant to the Agreement between Customer and Descope but has not signed its own agreement with Descope and is not a "Customer" as defined under the Agreement.
“CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq. and its implementing regulations, each as amended or superseded from time to time.
The terms, "Controller", "Member State", "Processor", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR. The terms “Business”, “Business Purpose”, “Consumer” and “Service Provider” shall have the same meaning as in the CCPA.
For the purpose of clarity, within this DPA “Controller” shall also mean “Business”, and “Processor” shall also mean “Service Provider”, to the extent that the CCPA applies. In the same manner, Processor’s Sub-processor shall also refer to the concept of Service Provider.
“Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including (as applicable) such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada, Israel and the United States of America, as applicable to the Processing of Personal Data under the Agreement including (without limitation) the GDPR, the UK GDPR, the FADP and the CCPA, as applicable to the Processing of Personal Data hereunder and in effect at the time of Processor’s performance hereunder.
“Data Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data Processed under this DPA.
“Data Subject” means the identified or identifiable person to whom the Personal Data relates.
“FADP” means the Swiss Federal Act on Data Protection of 19 June 1992.
“GDPR” means 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).
“Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or Consumer, to the extent such information is processed by Descope solely on behalf and/or under the instruction of Customer, under this DPA and the Agreement between Customer and Descope.
“Services” means the services provided to Customers by Descope in accordance with the Agreement.
“Security Documentation” means the Security Documentation applicable to the Services purchased by Customer, as updated from time to time, and made reasonably available to Customer by Descope.
“Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws.
“Standard Contractual Clauses” shall mean (a) where the GDPR applies, the standard contractual clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021, or (b) where the UK GDPR applies, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses as issued by the Information Commissioner’s Office under S119A(1) of the Data Protection Act 2018 and in force as of 21 March 2022 (“UK Addendum”).
“Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of Descope.
"UK GDPR" means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
2. PROCESSING OF PERSONAL DATA
Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, (i) Customer is the Controller or Processor of Personal Data, (ii) Descope is the Processor or Sub-processor of such Personal Data. The term “Processor” below hereby signifies Descope.
Customer’s Processing of Personal Data. Customer, in its use of the Services, and Customer’s instructions to the Processor, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorize the Processing by Processor, and for Processor’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’ as defined under the CCPA.
Processor’s Processing of Personal Data. When Processing on Customer’s behalf under the Agreement, Processor shall Process Personal Data solely for the following purposes: (i) Processing in accordance with the Agreement and this DPA; (ii) Processing for Customer as part of its provision of the Services; (iii) Processing to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement, regarding the manner in which the Processing shall be performed; (iv) rendering Personal Data fully anonymous, non-identifiable and non-personal in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; (v) Processing as required under the laws applicable to Processor, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Processor shall inform Customer of the legal requirement before Processing, unless such law or order prohibit such information on important grounds of public interest.
Processor shall inform Customer without undue delay if, in Processor’s opinion, an instruction for the Processing of Personal Data given by Customer infringes applicable Data Protection Laws. To the extent that Processor cannot comply with an instruction from Customer, Processor (i) shall inform Customer, providing relevant details of the issue, (ii) Processor may, without liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend Customer’s access to the Services, and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing without liability for either party.
Details of the Processing. The subject-matter of Processing of Personal Data by Processor is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of Processing) to this DPA.
Sensitive Data. The Parties agree that the Services are not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain the Processor’s explicit prior written consent and enter into any additional agreements as required by Descope.
CCPA Terms. If Processor Processes Personal Data hereunder that is subject to the CCPA, the terms set forth in Schedule 3 (CCPA Terms) to this DPA shall apply and bind the Parties with regard to such Personal Data and the Processing thereof.
If Customer discloses or otherwise makes available to Processor Deidentified Data (as defined by applicable Data Protection Laws), Processor shall (i) take reasonable measures to prevent such data from being associated with a natural person, and (ii) maintain and use such data without attempting to re-identify it.
3. DATA SUBJECT REQUESTS
Processor shall, to the extent legally permitted, notify Customer and/or refer Data Subject or Consumer to Customer, if Processor receives a request from a Data Subject or Consumer to exercise their rights under applicable Data Protection Laws (“Data Subject Request”). Taking into account the nature of the Processing, Processor shall assist Customer with the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws regarding the Processed Personal Data. Processor shall ensure it does not respond to Data Subject Requests except on the documented instructions of Customer or as strictly required by Data Protection Laws to which Processor is subject.
4. CONFIDENTIALITY
Processor shall ensure that its personnel and advisors engaged in the Processing of Personal Data have (a) access to Personal Data only as necessary for the purposes of providing Customer with the Services and complying with Data Protection Laws; (b) contractually committed themselves to confidentiality requirements; and (c) been provided and shall continue to be provided with annual privacy and security training.
5. SUB-PROCESSORS
Descope may engage Sub-processors to Process Personal Data on behalf of Customer. Customer hereby provides Descope with a general authorization to engage the Sub-processors listed in here (“Subprocessor Page”). All Sub-processors have entered into written agreements with Descope that bind them by data protection obligations substantially similar to those under this DPA. Where a Sub-processor fails to fulfill its data protection obligations in connection with the Processing of Personal Data under this DPA, Descope will remain fully liable to Customer for the performance of that Sub-processor's obligations.
Descope may engage with a new Sub-processor ("New Sub-processor") to Process Personal Data. Customer may subscribe to notifications of new Sub-processors used to Process Personal Data as described in the Subprocessor Page, and when Customer subscribes, Descope shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Service. Customer may object to the Processing of Customer's Personal Data by the New Sub-processor, for reasonable and explained grounds, by providing a written objection to privacy@descope.com within 5 business days following Descope's written notice to Customer of the intended engagement with the New Sub-processor. If Customer timely sends Descope a written objection notice, the parties will make a good-faith effort to resolve Customer's objection. In the absence of a resolution, Descope will make commercially reasonable efforts to provide Customer with the same level of Services, without using the New Sub-processor to Process Customer's Personal Data. If Processor is unable to make available such change within thirty (30) days following receipt of the objection, Customer may, as a sole remedy, terminate the Agreement and this DPA with respect only to those elements of the Services which cannot be provided by Processor without the use of the objected-to new Sub-processor, by providing written notice to Processor. All amounts outstanding under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Processor. Until a decision is made regarding the new Sub-processor, Processor may temporarily avoid or cease the Processing of the affected Personal Data and/or suspend access to the affected Services. Customer will have no further claims against Processor due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
AI/ML compliance obligations. Processor commits that itself, and every Sub-processor engaged, particularly those offering Artificial Intelligence (AI) or Machine Learning (ML) tools or platforms, is and shall be prohibited from utilizing the Personal Data and any data provided by Customer for their independent purposes, including the training of their respective models.
6. SECURITY & AUDITS
Controls. Controls for the Protection of Personal Data. Processor shall maintain industry-standard technical and organizational measures for protection of Personal Data Processed hereunder (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation), as may be amended from time to time.
Certifications and Audit Reports. Processor uses external auditors to verify the adequacy of its security measures. The internal controls of the Services are subject to periodic testing by such auditors, and Processor maintains security certifications and standards, including SOC2 Type 2, as further described in https://www.descope.com/security-compliance. Upon Customer’s written request Processor will make available to Customer (or to a third party auditor on Customer’s behalf, that is not a Processor competitor and subject to the auditor’s execution of a non-disclosure agreement), the most recent version of Processor’s third-party security audit or certification report.
Inspections. Processor may attempt to satisfy the audit obligation under this section 6 by providing Customer with attestations, certifications and summaries of audit reports conducted by accredited third party auditors. Upon Customer’s 14 days prior written request at reasonable intervals (no more than once every 12 months), subject to strict confidentiality undertakings by Customer, and at Customer’s cost, Processor shall make available to Customer that is not a competitor of Processor (or Customer’s independent, reputable, third-party auditor that is not a competitor of Processor and not in conflict with Processor, subject to their confidentiality and non-compete undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them – provided, however, that such information and the results therefrom, including the documents reflecting the outcome of the audit and/or the inspections, shall only be used by Customer to assess compliance with this DPA, and shall not be disclosed to any third party without Processor’s prior written approval. Upon Processor's request, Customer shall return all records or documentation in Customer's possession or control provided by Processor in the context of the audit and/or the inspection, provided however that Customer shall be entitled to retain such records and documentation as required under applicable law.
The audit rights set forth in 6.3 above, shall only apply to the extent that the Agreement does not otherwise provide Customer with audit rights that meet the relevant requirements of Data Protection Laws.
7. DATA INCIDENT NOTIFICATION AND MANAGEMENT
Processor shall notify Customer without undue delay after becoming aware of a Data Incident. Processor shall make reasonable efforts to identify and take those steps as Processor deems necessary and reasonable in order to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within Processor’s reasonable control. Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Processor’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, Customer shall provide Processor with reasonable prior written notice to provide Processor with the opportunity to object to such disclosure, and in any case Customer will limit the disclosure to the minimum scope required.
8. RETURN AND DELETION OF PERSONAL DATA
At the point of termination Customer can choose to download all Processed Personal Data. Processor shall delete all the Processed Personal Data in the manner described in the Agreement no later than ninety (90) days following the termination of the Agreement and subject thereto. To the extent authorized by applicable law, Processor may retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations.
9. CROSS-BORDER DATA TRANSFERS
Transfers from the EEA, the United Kingdom and Switzerland to countries that offer adequate level of data protection. Personal Data may be transferred from EU Member States, the three other EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), the United Kingdom (“UK”) and Switzerland to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, the UK, and/or Switzerland (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.
Transfers from the EEA, the United Kingdom and Switzerland to other countries. If the Processing of Personal Data by Processor includes a transfer (either directly or via onward transfer) from the EEA (“EEA Transfer”), the UK (“UK Transfer”), and/or Switzerland (“Swiss Transfer”) to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism as may be adopted by Processor for the lawful transfer of personal data (as defined in the GDPR, the UK GDPR, the FADP, as relevant) outside the EEA, the UK or Switzerland, as applicable, then (i) the terms set forth in Part 1 of Schedule 2 (EEA Cross Border Transfers) shall apply to any such EEA Transfer; (ii) the terms set forth in part 2 of Schedule 2 (UK Cross Border Transfers) shall apply to any such UK Transfer (“UK Addendum”); and (iii) the terms set forth in Part 3 of Schedule 2 (Swiss Cross Border Transfers) shall apply to any such Swiss Transfer.
All Other Transfers. If Processor Processes any Personal Data related to individuals outside of the EEA/Switzerland/UK that is subject to data transfer requirements, Processor will reasonably cooperate with Customer to establish appropriate transfer mechanisms for such transfers.
10. AUTHORIZED AFFILIATES
Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Processor Processes Personal Data on the behalf of such Authorized Affiliates. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.
Communication. Customer shall remain responsible for coordinating all communication with Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
11. OTHER PROVISIONS
Data Protection Impact Assessment and Prior Consultation. Upon Customer’s reasonable request, Processor shall provide Customer, at Customer’s cost, with reasonable cooperation and assistance needed to fulfill Customer’s obligation under applicable Data Protection Laws to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor. Processor shall also provide, at Customer’s cost, reasonable assistance to Customer in the cooperation or prior consultation with a Supervisory Authority related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor.
Modifications. Each Party may by at least thirty (30) calendar days' prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of those Data Protection Laws. Pursuant to such notice: (a) The Parties shall make commercially reasonable efforts to accommodate such modification requested by Customer or that Processor believes is necessary; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein at Customer’s request. The Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’s or Processor’s notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days of such notice, then Customer or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof). Customer will have no further claims against Processor (including, without limitation, requesting refunds for the Services) pursuant to the termination of the Agreement and the DPA as described in this Section.
SCHEDULE 1 - DETAILS OF THE PROCESSING
Nature and Purpose of Processing
As detailed in provision 2.3
Duration of Processing
Subject to any section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Processor will Process Personal Data pursuant to the DPA and Agreement for the duration of the Agreement, unless otherwise agreed upon in writing.
Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by the Customer in their sole discretion.
Categories of Data Subjects
Customer may submit Personal Data to the Services which may include, but is not limited to, Personal Data relating to the following categories of Data Subjects:
Employees, agents, advisors, freelancers of Customer (who are natural persons)
Prospects, customers, business partners and vendors of Customer (who are natural persons)
Employees or contact persons of Customer’s prospects, customers, business partners and vendors
End-users of Customer who interact with Descope or otherwise provide it with their Personal Data as part of their use of Customer’s products and services
Any other third party individual whose Personal Data Customer decides to have Processed through the Services.
SCHEDULE 2 – CROSS BORDER TRANSFERS
PART 1 – EEA Cross Border Transfers
The parties agree that the terms of the Standard Contractual Clauses are hereby incorporated by reference and shall apply to an EEA Transfer.
Module Two (Controller to Processor) of the Standard Contractual Clauses shall apply where the EEA Transfer is effectuated by Customer as the data controller of the Personal Data and Descope is the data processor of the Personal Data.
Module Three (Processor to (Sub-processor) of the Standard Contractual Clauses shall apply where the EEA Transfer is effectuated by Customer as the data processor of the Personal Data and Descope is a sub-processor of the Personal Data.
Clause 7 of the Standard Contractual Clauses (Docking Clause) shall not apply.
Option 2: GENERAL WRITTEN AUTHORISATION in Clause 9 of the Standard Contractual Clauses shall apply, and the method for appointing and time period for prior notice of Sub-processor changes shall be as set forth in Section 5.2 of the DPA.
In Clause 11 of the Standard Contractual Clauses, the optional language will not apply.
In Clause 17 of the Standard Contractual Clauses, Option 1 shall apply, and the Parties agree that the Standard Contractual Clauses shall be governed by the laws of the Republic of Ireland.
In Clause 18(b) of the Standard Contractual Clauses, disputes will be resolved before the courts of the Republic of Ireland.
Annex I.A of the Standard Contractual Clauses shall be completed as follows:
Data Exporter: Customer.
Contact details: As detailed in the Agreement.
Activities relevant to the data transferred: Using the Services in accordance with the Agreement and this DPA, as further detailed in Schedule 1 to this DPA.
Data Exporter Role:
Module Two: The Data Exporter is a data controller.
Module Three: The Data Exporter is a data processor.
Signature and Date: By entering into the Agreement and DPA, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Data Importer: Descope Inc.
Contact details: As detailed in the Agreement.
Activities relevant to the data transferred: Providing the Services in accordance with the Agreement and this DPA, as further detailed in Schedule 1 to this DPA.
Data Importer Role:
Module Two: The Data Importer is a data processor.
Module Three: The Data Importer is a sub-processor.
Signature and Date: By entering into the Agreement and DPA, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Annex I.B of the Standard Contractual Clauses shall be completed as follows:
The categories of data subjects are described in Schedule 1 (Details of Processing) of this DPA.
The categories of personal data are described in Schedule 1 (Details of Processing) of this DPA.
The Parties do not intend for Sensitive Data to be transferred.
The frequency of the transfer is a continuous basis for the duration of the Agreement.
The nature of the processing is described in Schedule 1 (Details of Processing) of this DPA.
The purpose of the processing is described in Schedule 1 (Details of Processing) of this DPA.
The period for which the personal data will be retained is for the duration of the Agreement, unless agreed otherwise in the Agreement and/or the DPA.
In relation to transfers to Sub-processors, the subject matter, nature, and duration of the processing; information shall be provided in accordance with Section 5 of the DPA.
Annex I.C of the Standard Contractual Clauses shall be completed as follows:
The competent supervisory authority in accordance with Clause 13 is the supervisory authority in the Member State stipulated in Section 7 above.
The Security Documentation referred to in the DPA serves as Annex II of the Standard Contractual Clauses.
To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this DPA or the Agreement, the provisions of the Standard Contractual Clauses will prevail.
PART 2 – UK Cross Border Transfers
The Parties agree that the UK Addendum is hereby incorporated by reference and shall apply to UK Transfers as set forth in this Part 2, together with the EU SCCs as set forth in Part 1 of this Schedule 2.
Table 1: The Parties: as stipulated in Section 9 of Part 1 of this Schedule 2.
Table 2: Selected SCCs, Modules and Selected Clauses: as stipulated in Part 1 of this Schedule 2.
Table 3: Appendix Information: means the information which must be provided for the selected modules as set out in the Appendix of the Standard Contractual Clauses (other than the Parties), and which for this Part 2 is set out in Part 1 to this Schedule 2.
Table 4: Ending this Addendum when the Approved Addendum Changes: Neither Party may end the UK Addendum incorporated herein in the manner set out in Section 19 thereto.
PART 3 – Swiss Cross Border Transfers
The Parties agree that the Standard Contractual Clauses as detailed in Part 1 of this Schedule 2, shall be adjusted as set out below where the FADP applies to Swiss Transfers:
References to the Standard Contractual Clauses mean the Standard Contractual Clauses as amended by this Part 3;
The Swiss Federal Data Protection and Information Commissioner shall be the sole Supervisory Authority for Swiss Transfers exclusively subject to the FADP;
The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the Standard Contractual Clauses shall be interpreted to include the FADP with respect to Swiss Transfers;
References to Regulation (EU) 2018/1725 are removed;
Swiss Transfers subject to both the FADP and the GDPR, shall be dealt with by the EU Supervisory Authority named in Part 1 of this Schedule 2;
References to the “Union”, “EU” and “EU Member State” shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of exercising their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Standard Contractual Clauses;
Where Swiss Transfers are exclusively subject to the FADP, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FADP;
Where Swiss Transfers are subject to both the FADP and the GDPR, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FADP insofar as the Swiss Transfers are subject to the FADP.
SCHEDULE 3 – CCPA TERMS
SCOPE, APPLICATION & INTERPRETATION
This Schedule 3 shall apply and bind the Parties if and to the extent that Processor processes Personal Information (as defined below) that is subject to the CCPA on behalf and/or under the instruction of Customer in the course of providing the Services pursuant to the Agreement.
This Schedule 3 prevails over any conflicting terms of the Agreement or the DPA but does not otherwise modify the Agreement or the DPA.
This Schedule 3 shall be interpreted in favor of the Parties’ intent to comply with the CCPA, and therefore any ambiguity shall be resolved in favor of a meaning that complies and is consistent with the CCPA.
Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the DPA, as amended by this Schedule 3.
DEFINITIONS
For the purposes of this Schedule 3:
The terms “Business”, “Collects” (and “collected” and “collection”), “Consumer”, “Deidentified”, “Sell” (and “selling”, “sale”, and “sold”), “Share” (and “shared”, or “sharing”), “Service Provider”, and “Subcontractor” shall each have the same meaning as in the CCPA.
"Personal Information" means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable Consumer or household, which is processed by Processor solely on behalf and/or under the instruction of Customer or any of its Affiliates under this Schedule 3 and the Agreement.
PROCESSING OF PERSONAL INFORMATION
Customer hereby appoints Processor as a Service Provider to Process Personal Information on behalf of Customer. Customer, in its use of the Services, and Customer’s instructions to Processor, shall comply with the CCPA.
Processor shall Process Personal Information solely for the purposes set forth in Schedule 1 to the DPA and as necessary to comply with this Schedule 3 and the CCPA (collectively: the "Permitted Purposes").
Sections 3-8, 10 and 11.2 of the DPA shall apply to the Processing of Personal Information hereunder, and the following terms shall be replaced as follows: "Data Protection Laws" shall mean the CCPA; “DPA” shall mean this Schedule 3; "Personal Data" shall mean "Personal Information"; “Data Subject” shall mean “Consumer”; "Controller" shall mean "Business"; "Processor" shall mean "Service Provider"; and Sub-processor shall refer to the concept of Subcontractor engaged by Processor to Process Personal Information.
Processor shall Process Personal Information in accordance with the provisions of the CCPA, and in a manner that provides the same level of privacy protection to Personal Information as required by the CCPA. Processor certifies that it understands the rules, requirements, and definitions of the CCPA and this Schedule 3, and shall comply with them.
Processor acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Processor provides to Customer under the Agreement. Processor agrees to refrain from Selling and/or Sharing any Personal Information Processed hereunder without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Processor under the Agreement or this Schedule 3 to qualify as Selling and/or Sharing such Personal Information. Processor shall not have, derive, or exercise any rights or benefits regarding the Personal Information, and shall not retain, use, or disclose any Personal Information (i) for any purpose other than the Permitted Purposes, and/or (ii) outside of its direct business relationship with Customer.
Processor shall not combine Personal Information with any other data if and to the extent that this would be inconsistent with the limitations on Service Providers under the CCPA.
If Processor receives any Personal Information in Deidentified form, Processor shall take reasonable measures to ensure that such Deidentified Personal Information cannot be associated with a Consumer or household.
Processor shall notify Customer if Processor makes a determination that it can no longer meet its obligations under this Schedule 3 and/or the CCPA.
