Client Data Processing Agreement

Data Processing Agreement

This Data Processing Agreement (the “DPA”) forms part of xneelo’s Terms of Service (the “Principal Agreement”), and is incorporated into the Principal Agreement by reference. Xneelo reserves the right to make changes to the respective Agreements at any time without notice. Any updated versions of the aforesaid Agreements will be posted on our website.

1. Introduction

This DPA applies when you sign up for our services, and xneelo acts as the Processor of your Personal Data I Information. When we provide these services to you, you are the Controller I Responsible Party of the Personal Data I Information that we Process because you decide why and how we Process that Personal Data I Information. 

2. Definitions and Interpretations

2.1. The defined terms in this DPA supplement the terms of the Principal Agreement. Terms not defined herein will have the meaning as set forth in the Principal Agreement. If there is a conflict between any of the Principal Agreement’s provisions and this DPA’s provisions, the provisions of the DPA will prevail.

“Controller I Responsible Party” means the person who decides why and how Personal Data I Information will be processed.  This would be you, our Customer.  

“Data Protection Law” means any and all data protection laws and regulations that apply to xneelo’s Processing of Personal Data I Information under the DPA including, the GDPR, the Protection of Personal Information Act 4 of 2013, ePrivacy laws and, to the extent applicable, the data protection or privacy laws of any other country;

“Data Subject” means the person whose data is processed, which are your customers or site visitors.

“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 I Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data I Information” means any data or information that relates to an individual who can be directly or indirectly identified.  For example, names and email addresses are Personal Data I Information.  Location information, ethnicity, gender, biometric data, religious beliefs, web cookies, and political opinions can also be Personal Data I Information.

“Personal Data Breach” any unauthorized or otherwise unlawful Personal Data I Information processing.

“Process I Processing” means any action performed on data, whether automated or manual.  This would include collecting, recording, organizing, structuring, storing, using, or erasing.  Thus, basically doing anything with data.

“Processor I Operator” means xneelo, a third party that processes personal Data I Information on behalf of a data controller I Responsible Party .

“Standard Contractual Clauses” means the standard contractual clauses annexed to the EU Clauses/SCCs” Commission Decision 2010/87/EU of 5 February 2010 for the transfer of Personal Data I Information to processors I operator established in third countries. 

“Subprocessor I Subopreator” means any person appointed by or on behalf of the Processor I Operator to process Personal Data I Information on behalf of xneelo in connection with the Agreement.

3. Agreement Subject Matter

3.1. Application.  The DPA applies when xneelo Processes your Personal Data I Information subject to the applicable Data Protection Law.

3.2. Acceptance.  By using our products and services you are deemed to have read, understood, accepted, anD agreed to be bound by all of the terms of the respective Agreements.

3.3. Duration.  xneelo will Process Personal Data I Information until the Principal Agreement expires or terminates, unless otherwise agreed in writing, subject to clause 4.1.5 below.

3.4. Limitations.  DPA does not apply where xneelo Processes data on either Controller I Responsible Party or Data Subject’s behalf in terms of any activity not set out in the Principal Agreement. 

3.5. Details of Processing.  The following details related to the Processing is described in the Principal Agreement and our Privacy Policy, which are incorporated into this DPA by reference:

3.5.1. the Processing’s subject-matter;

3.5.2. the Processing’s nature;

3.5.3. the Processing’s purpose;

3.5.4. the Personal Data I Information type;

3.5.5. the Data Subject categories; and

3.5.6. the Controller’s rights.

4. Data Processing and Protection

4.1. Processor’s Obligations

4.1.1. Processing of Data

  • xneelo will comply with the applicable Data Protection Law when Processing Personal Data I Information  and will only Process Personal Data I Information on Controller I Responsible Party’s documented instructions.
  • Controller I Responsible Party instructs xneelo to Process Personal Data I Information to provide the Services and related technical support in terms of the Principal Agreement.

4.1.2. Data Transfer

  • xneelo may only transfer Personal Data I Information to a third country or international organisation on Controller I Responsible Party’s documented instructions, unless required to do so by applicable law.
  • xneelo must advise Controller I Responsible Party about the legal requirement before Processing the Personal Data I Information, unless the law prohibits them from doing so in the public interest. The Parties agree that the DPA and Principal Agreement constitute Controller I Responsible Party’s documented instructions for Processing Personal Data I Information.

4.1.3. Processors I Operator Personnel 

  • xneelo will take reasonable steps to ensure that persons authorised by xneelo to Process any Personal Data I Information are subject to appropriate confidentiality obligations.
  • xneelo imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security. For more information, please see our Privacy Policy.

4.1.4. Security Measures 

  • Data Security
    xneelo will implement appropriate technical and organisational security measures to ensure a level of security appropriate to the risk, including, the measures referred to in Data Protection Law, and the measures referred to in xneelo’s Security Statement.

    In assessing the appropriate level of security, xneelo will pay special attention to accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data I Information transmitted, stored or otherwise processed.

  • Audits

    xneelo will cooperate and provide reasonable assistance for audits (including inspections) by the Controller I Responsible Party or another auditor that they mandate. Controller I Responsible Party must provide xneelo with at least 30 (thirty) business days prior written notice of Controller I Responsible Party’s intention to audit.

  • Access to information

    xneelo will cooperate and provide reasonable assistance for audits (including inspections) by the Controller I Responsible Party or another auditor that they mandate. Controller I Responsible Party must provide xneelo with at least 30 (thirty) business days prior written notice of Controller I Responsible Party’s intention to audit. 

  • Personal Data I Information Breach

    xneelo will notify the ControllerI Responsible Party without undue delay after becoming aware of a Personal Data I Information Breach. 

  • Assistance to Controller
    Any Personal Data I Information Breach notification xneelo makes to assist Controller I Responsible Party will include information xneelo is reasonably able to disclose, taking into account:

    • the technical and organisational measures ControllerI Responsible Party requires to fulfil its obligation to respond to requests by Data Subjects, and
    • the nature of Processing, the information available to xneelo, and any restrictions on disclosing the information, such as confidentiality.

4.1.5. Return or Deletion of Personal Data I Information

  • Any time upon notification by Controller I Responsible Party, xneelo will, and will cause its Subprocessors  I Suboperator to securely delete all Personal Data I Information (including all copies) to the extent permitted by applicable law. 
  • xneelo agrees to preserve the confidentiality of any Personal Data I Information retained by us in accordance with applicable law. Any active Processing of such Personal Data I Information after the Data Processing services are terminated will be limited to the extent necessary to comply with applicable law. Xneelo will ensure that the post-termination obligations in this section are also required of Subprocessors I Suboperator.

4.1.6. Subprocessing 

  • Restriction

    xneelo will not appoint or assign any of its obligations to any Subprocessor I Suboperator without Controller I Responsible Party’s prior specific authorisation or general written authorisation (provided that xneelo informs Controller I Responsible Party of any intended changes to Subprocessors I Suboperator and gives Controller I Responsible Party an opportunity to object to such changes).

4.1.7. Authorised Subprocessors I Suboperator

  • Controller I Responsible Party authorises xneelo to engage the following categories of Subprocessors I Suboperators that are mostly located in the European Union, for the Data Processing activities related to the services described in the Principal Agreement and our Privacy Policy:
    • Registrars for domain names,
    • CRM for emails and calls,
    • Hosting services, or
    • any other services necessary to provide services to you.

4.1.8. Specific obligations

xneelo will ensure that its Subprocessors I Suboperator are bound by data protection obligations compatible with our obligations as a Processor I Operator under this DPA.

4.2. Controller I Responsible Party’s Obligations

4.2.1. Warranties.  Controller I Responsible Party warrants that it has all necessary rights to provide the Personal Data I Information to xneelo.

4.2.2. Responsibilities.  Controller I Responsible Party must make sure that certain designated personnel within their organisation:

  • provide all necessary privacy notices to Data Subjects;
  • obtain any necessary Data Subject consent to the Processing;
  • maintain a record of such consent; and 
  • Communicate to Processor I Operator that a Data Subject has revoked consent, where a Data Subject does so; 

to the extent that applicable Data Protection Law requires.

5. Processing of Personal Data I Information outside of the European Economic Area (the “EEA”) 

5.1. Standard Contractual Clauses

5.1.1. When does it apply?

The Standard Contract Clauses apply to any Processing where the parties:

  • directly (or via onward transfer) transfer Personal DataI Information outside of the EEA or otherwise to an undesignated territory; or
  • Processes Personal Data I Information originating in the EEA outside of it or in an undesignated territory (a territory that has not been designated by the European Commission to ensure adequate levels of protection for Personal Data I Information).

5.1.2. When does it not apply?

  • Personal Data I Information that the Parties otherwise transfer or Process; or
  • Where Parties have adopted binding corporate rules or a similar mechanism or alternate recognised compliance standard for the lawful transfer of Personal Data I Information outside the EEA.

5.1.3. Adequate protection 

The Parties will assess whether the following requirements are met:

  • the level of protection of the third country meets the level required by the applicable Data Protection Law, and 
  • the laws of the third country enable the Processor I Operator to comply with the SCCs. 

Supplementary measures may be taken to ensure a level of protection equivalent to the protection provided under the applicable data protection law, if the requirements in this clause are not met. The Parties will implement the guidance from the relevant supervisory authority to determine the supplementary measures they must put in place.

6. General Terms

6.1. Confidentiality

xneelo will keep all Personal Data I Information confidential, and will not disclose it to any third party except as is required by law.

6.2. Notices

All notices and communications given under this Agreement must be in writing and will be sent via email.  Controller I Responsible Party will be notified via email sent to the address related to its use of the Services under the Principal Agreement. xneelo will be notified via email, sent to the address: legal@xneelo.com. 

6.3. Liability and indemnity

Each Party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses that the other party incurs arising out of a breach of this DPA or Applicable Data Protection law by the indemnifying party, provided that:

6.3.1. each Party provides the other with a notice of the claim promptly after receiving it;

6.3.2. the indemnified Party gives the indemnifying Party the right to control the defence;

6.3.3. the indemnified Party will provide the indemnifying Party with reasonable assistance as necessary; and

6.3.4. the indemnified Party will avoid admission of liability.

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