This Data Protection Addendum (“DPA”) is entered into between Customer (defined below) and Avora Ltd of 38 Chancery Lane, London WC2A 1EN (hereafter referred to as “Avora”). These Terms were last updated on 2 July 2019.

1. DEFINITIONS

“Agreement” means any agreement or “terms of service” between Avora and the Customer under which Services are provided by Avora to that customer.

Customer” means the customer that is identified in, and is a party to, the Agreement.

Data Protection Legislation” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area, and their member states, applicable to the processing of Personal Data under the Agreement, including from 25 May 2018 the GDPR.

“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” means all data which is defined as ‘Personal Data’ in the Data Protection Legislation and that is provided directly or indirectly by Customer to Avora, or accessed, stored or otherwise processed by Avora or its subprocessors (as applicable) for the purposes of delivering the Services to Customer.

“Processing”, “Data Controller”, Data Processor “, “Data Subject” and “Supervisory Authority” shall have the meanings ascribed to them in the Data Protection Legislation.

Services” means the services provided by Avora to the Customer according to the Agreement.

Standard Contractual Clauses” means the Standard Contractual Clauses document attached as Appendix 2.

2. DATA PROCESSING

2.1 Scope. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller, Avora is the Data Processor.

2.2 Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including all Data Protection Legislation.

2.3 Processing Instructions. Avora will process Customer Data in accordance with the Agreement; and with the Customer’s reasonable written instructions, where such instructions are consistent with the terms of the Agreement.

2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Avora 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.

3. DATA TRANSFER REQUIREMENTS

The Standard Contractual Clauses will apply to all processing of Personal Data by Avora where the Personal Data is transferred from the European Economic Area (EEA) to outside the EEA, either directly or via onward transfer, to any country or recipient not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the Data Protection Legislation), and not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for personal data. If there is a conflict or inconsistency between the DPA and the Standard Contractual Clauses, the Standard Contractual Clauses will prevail to the extent of any inconsistency or conflict.

4. SECURITY & AUDIT OF TECHNICAL AND ORGANISATIONAL MEASURES

4.1 Security.  Avora will maintain appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Customer Data (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), according to the measures set forth on Appendix 2 of Schedule 2. Avora shall provide reasonable assistance to the Customer in relation to (i) the Customer’s obligations under Data Protection Legislation with respect to data protection impact assessments (as such term is defined in the GDPR); (ii) notifications to the Supervisory Authority and/or communications to Data Subjects by the Customer in response to any Security Incident; and (iii) the Customer’s compliance with its obligations under the GDPR with respect to the security of processing.

4.2 Audit Procedure. On request, Avora will provide Customer with all documentation reasonably required to satisfy Customer of Avora’s compliance with this DPA.

4.3 Records.  Avora shall, in accordance with Data Protection Legislation, make available to the Customer such information in Avora’s possession or control as the Customer may reasonably request with a view to demonstrating Avora’s compliance with the obligations of data processors under Data Protection Legislation in relation to its processing of Personal Data.

4.4 Return and Deletion. As soon as reasonably practicable following, and in any event within ninety (90) days of, termination or expiry of the Agreement or completion of the Services, Avora will delete or return to the Customer (at the Customer’s direction) all Personal Data (including copies thereof) processed pursuant to this DPA.

5. SECURITY BREACH NOTIFICATION

Avora maintains security incident response policies and procedures and shall, to the extent permitted by law, (a) promptly notify the Customer of any actual or reasonably suspected unauthorized disclosure of Personal Data by Avora, or its sub-processors of which Avora becomes aware (a “Security Incident”); (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident; and (c) provide commercially reasonable cooperation and assistance during such investigation to remediate such occurrence.

6. SUB-PROCESSORS

6.1 Subcontracting. Customer agrees that Avora hosts the Service on Amazon Web Services and its affiliates as subcontractors to fulfill its contractual obligations under this DPA. Subject to the remainder of this clause 6, Customer permits Avora to appoint subcontractors to the extent required to fulfil its obligations under the Agreement.

6.2 Subcontractor Obligations. In the event that Avora authorizes any subcontractor to process the Customer Data, (i) Avora shall restrict the subcontractor’s access to Customer Data only to the extent necessary to provide the Service and not for any other purpose; (ii) Avora shall impose appropriate contractual obligations upon the subcontractor, including relevant contractual obligations regarding confidentiality, data protection, data security, and audit rights; and (iii) Avora remains responsible for its compliance with the DPA and for any acts or omissions of the subcontractor that cause Avora to breach any of Avora’s obligations under this DPA.

6.3 Objection Right to New Sub-Processors.  Avora will maintain a list of sub-processors and will add the names of new and replacement sub-processors to the list prior to them starting sub-processing of Personal Data. If the Customer has a reasonable objection to any new or replacement sub-processor, it shall notify Avora of such objections in writing within ten (10) days of the notification and the parties will seek to resolve the matter in good faith. If Avora is able to provide the Services to the Customer in accordance with the Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this Section in respect of the proposed use of the sub-processor.  If Avora requires to use the sub-processor and is unable to satisfy the Customer (acting reasonably) as to the suitability of the sub-processor or the documentation and protections in place between Avora and the sub-processor within sixty (60) days from the Customer’s notification of objections, the Customer may within thirty (30) days of the end of the sixty-day period referred to above terminate the Agreement only in relation to the Services to which the proposed new sub-processor’s processing of Personal Data relates or would relate by providing written notice to Avora having effect thirty (30) days after receipt by Avora. Avora will refund to the Customer any prepaid fees covering the remainder of the term of the Agreement following the date of termination.

7. DATA SUBJECT REQUESTS

Where the Customer, based on applicable Data Protection Legislation, receives a request from a Data Subject to access, rectify or erase that person’s Personal Data or if a Data Subject objects to the processing of, or makes a data portability request in respect of, such Personal Data (“together Data Subject Request”), Avora shall provide commercially reasonable assistance to the Customer, provided that Customer has instructed Avora to do so and Customer reimburses Avora for the costs arising from such assistance. Avora will not independently respond to requests from Customer’s end users without Customer’s prior written consent, except to confirm that the request relates to the Customer.

8. GENERAL

8.1 Entire Agreement. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this DPA, this DPA shall apply.

8.2 Counterparts. This DPA may be executed in two or more counterparts, each of which will be deemed an original and which taken together will be deemed to constitute the same document. The parties may sign this DPA by email or facsimile.

8.3 Severability. If any provision of this DPA is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.

Schedule 1 – Details of Processing

Nature and Purpose of Processing

Avora will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Customer in its use of the Services.

Duration of Processing

Unless otherwise agreed upon in writing, Avora will Process Personal Data for the duration of the Agreement.

Categories of Data Subject

Customer may submit Personal Data, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

  • Prospects, customers, business partners and vendors of Customer
  • Employees or contact persons of Customer’s prospects, customers, business partners and vendors
  • Employees, agents, advisors, freelancers of Customer

Type of Personal Data

Customer may submit Personal Data, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Personal Data:

  • Name
  • Contact information (company email address, phone number, business address)
  • Job titles
  • Professional data

Schedule 2

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity identified as “Customer” in the DPA

(the “data exporter”)

and

Avora
(the “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;

(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 subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 organisational security measures’ means those measures aimed at protecting  personal data against accidental or  unlawful destruction or  accidental loss,  alteration, unauthorised  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 subprocessor 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 subprocessor 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

(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  organisational 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,  unauthorised 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  subprocessor  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