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.
This DPA applies when you sign up for our services, and xneelo acts as the Processor of your Personal Data. When we provide these services to you, you are the Controller of the Personal Data that we Process because you decide why and how we Process that Personal Data.
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” means the person who decides why and how personal data 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 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 and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” 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. Location information, ethnicity, gender, biometric data, religious beliefs, web cookies, and political opinions can also be personal data.
“Personal Data Breach” any unauthorized or otherwise unlawful personal data 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” means xneelo, a third party that processes personal data on behalf of a data controller.
“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 to processors established in third countries.
“Subprocessor” means any person appointed by or on behalf of the Processor to process Personal Data 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 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 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 or Data Subject’s behalf in terms of any activity not set out in the Principal Agreement.
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 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 and will only Process Personal Data on Controller’s documented instructions.
- Controller instructs xneelo to Process Personal Data 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 to a third country or international organisation on Controller’s documented instructions, unless required to do so by applicable law.
- xneelo must advise Controller about the legal requirement before Processing the Personal Data, unless the law prohibits them from doing so in the public interest. The Parties agree that the DPA and Principal Agreement constitute Controller’s documented instructions for Processing Personal Data.
4.1.3. Processors Personnel
- xneelo will take reasonable steps to ensure that persons authorised by xneelo to Process any Personal Data are subject to appropriate confidentiality obligations.
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 transmitted, stored or otherwise processed.
- Auditsxneelo will cooperate and provide reasonable assistance for audits (including inspections) by Controller or another auditor that they mandate. Controller must provide xneelo with at least 30 (thirty) business days prior written notice of Controller’s intention to audit.
- Access to informationWhere necessary, xneelo will give Controller reasonable access to audit the relevant records that are necessary to demonstrate our compliance with our data protection obligations.
- Personal Data Breachxneelo will notify Controller without undue delay after becoming aware of a Personal Data Breach.
- Assistance to Controller
Any Personal Data Breach notification xneelo makes to assist Controller will include information xneelo is reasonably able to disclose, taking into account:
- the technical and organisational measures Controller 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
- Any time upon notification by Controller, xneelo will, and will cause its Subprocessors to securely delete all Personal Data (including all copies) to the extent permitted by applicable law.
- xneelo agrees to preserve the confidentiality of any Personal Data retained by us in accordance with applicable law. Any active Processing of such Personal Data 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.
- Restrictionxneelo will not appoint or assign any of its obligations to any Subprocessor without Controller’s prior specific authorisation or general written authorisation (provided that xneelo informs Controller of any intended changes to Subprocessors and gives Controller an opportunity to object to such changes).
4.1.7. Authorised Subprocessors
- 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 are bound by data protection obligations compatible with our obligations as a Processor under this DPA.
4.2. Controller’s Obligations
4.2.1. Warranties. Controller warrants that it has all necessary rights to provide the Personal Data to xneelo.
4.2.2. Responsibilities. Controller 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 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 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 Data outside of the EEA or otherwise to an undesignated territory; or
- Processes Personal Data 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).
5.1.2. When does it not apply?
- Personal Data 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 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 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
xneelo will keep all Personal Data confidential, and will not disclose it to any third party except as is required by law.
All notices and communications given under this Agreement must be in writing and will be sent via email. Controller 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: firstname.lastname@example.org.
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.