Data Processing Agreement

Version 1.0 - March 2021

Unless otherwise provided herein, this "Data Processing Agreement" is subject to the terms of the "SaaS Terms and Conditions" and capitalised terms will have the meaning specified in the "SaaS Terms and Conditions".

The Supplier reserves the right to change the terms of this "Data Processing Agreement".

1. Definitions

Affiliates: any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party.
Agreement: the agreement between the Supplier and the Customer for the provision of the Services.
Controller: the Customer.
Customer Data: all data inputted into the Services.
Data Protection Law: means the GDPR and/or any subsequent amendment or replacement or supplementary legislation.
Data Subject: shall have the same meaning as in Data Protection Law.
GDPR: means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
Personal Data: shall have the same meaning as in Data Protection Law.
Processor: means the Supplier.
Security Policy: means the Supplier’s security document as updated from time to time, and accessible via https://capitan.website or otherwise made reasonably available by the Supplier.
Standard Contractual Clauses: means the EU model clauses for personal data transfer from controllers to processors c2010-593 - Decision 2010/87EU.
Sub-Processor: means any person or entity engaged by the Supplier or its Affiliate to process Personal Data in the provision of the Services to the Customer.

2. Purpose

The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Agreement. In providing the Services, the Processor shall process Customer Data on behalf of the Controller. Customer Data may include Personal Data. The Processor will process and protect such Personal Data in accordance with the terms of this DPA.

3. Scope

In providing the Services to the Controller pursuant to the terms of the Agreement, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Agreement and the Controller’s instructions documented in the Agreement and this DPA.

4. Processor Obligations

The Processor may collect, process or use Personal Data only within the scope of this DPA.
The Processor confirms that it shall process Personal Data on behalf of the Controller and shall take steps to ensure that any natural person acting under the authority of the Processor who has access to Personal Data shall only process the Personal Data on the documented instructions of the Controller.
The Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller, breach any Data Protection Law any law.
The Processor shall ensure that all employees, agents, officers and contractors involved in the handling of Personal Data:
1. are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential;
2. have received appropriate training on their responsibilities as a data processor; and
3. are bound by the terms of this DPA.
The Processor shall implement appropriate technical and organisational procedures to protect 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.
The Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
1. the pseudonymisation and encryption of Personal Data;
2. the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services;
3. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
The technical and organisational measures detailed in the Security Policy be at all times adhered to as a minimum security standard. The Controller accepts and agrees that the technical and organisational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in the attachments to this DPA.
The Controller acknowledges and agrees that, in the course of providing the Services to the Controller, it may be necessary for the Processor to access the Personal Data to respond to any technical problems or Controller queries and to ensure the proper working of the Services. All such access by the Processor will be limited to those purposes.
Where Personal Data relating to an EU Data Subject is transferred outside of the EEA it shall be processed in accordance with the provisions of the Standard Contractual Clauses, unless the processing takes place:
1. in a third country or territory recognised by the EU Commission to have an adequate level of protection; or
2. by an organisation located in a country which has other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.
The Processor confirms that it and/or its Affiliate(s) have appointed a data protection officer where such appointment is required by Data Protection Law. The appointed data protection officer may be contacted via the Suppliers website https://capitan.website.

5. Controller Obligations

The Controller represents and warrants that it shall comply with:
1. the terms of the Agreement and this DPA;
2. Data Protection Law; and
3. all applicable marketing laws and guidelines, including but not limited to the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended or replaced by subsequent legislation from time to time).
The Controller represents and warrants that it has obtained any and all necessary permissions and authorisations necessary to permit the Processor, its Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
The Controller is responsible for compliance with Data Protection Law, including requirements with regards to the
transfer of Personal Data under this DPA and the Agreement.
All Affiliates of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
The Controller shall implement appropriate technical and organisational procedures to protect 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. The Controller shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
1. the pseudonymisation and encryption of Personal Data;
2. the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services;
3. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
The Controller shall take steps to ensure that any natural person acting under the authority of the Controller who has access to Personal Data only processes the Personal Data on the documented instructions of the Controller.
The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. The Processor will process the request to the extent it is lawful, and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data, assisting with audits, inspections or DPIAs by the Processor, may result in additional fees. In such case, the Processor will notify the Controller of its fees for providing such assistance in advance, unless otherwise agreed.

6. Sub-Processors

The Controller acknowledges and agrees that:
1. Affiliates of the Processor may be used as Sub-processors;
  and
2. the Processor and its Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
All Sub-processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor set out in this DPA.
Where Sub-processors are located outside of the EEA, the Processor confirms that such Sub-processors:
1. are located in a third country or territory recognised by the EU Commission to have an adequate level of protection; or
2. have entered into Standard Contractual Clauses with the Processor; or
3. have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
The Processor shall make available to the Controller the current list of Sub-processors which shall include the identities of Sub-processors and their country of location. During the term of this DPA, the Processor shall provide the Controller with prior notification, via in Writing, of any changes to the list of Sub-processor(s) who may process Personal Data before authorising any new or replacement Sub-processor(s) to process Personal Data in connection with the provision of the Services.
The Controller may object to the use of a new or replacement Sub-processor, by notifying the Processor promptly in writing within ten (10) Business Days after receipt of the Processor’s notice. If the Controller objects to a new or replacement Sub-processor, and that objection is not unreasonable, the Controller may terminate the Agreement or Proposal with respect to any Solution and Services which cannot be provided by the Processor without the use of the new or replacement Sub-processor.

7. Liability

The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
The parties agree that the Processor shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Sub-processors to the same extent the Processor would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
The parties agree that the Controller shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of its Affiliates as if such acts, omissions or negligence had been committed by the Controller itself.
The Controller shall not be entitled to recover more than once in respect of the same claim.

8. Audit

The Processor shall make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.
Any audit conducted under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in the Agreement. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may conduct a more extensive audit which will be:
1. at the Controller’s expense;
2. limited in scope to matters specific to the Controller and agreed in advance;
3. carried out during UK business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and
4. conducted in a way which does not interfere with the Processor’s day-to-day business.
This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.

9. Data Breach

The Processor shall notify the Controller without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Personal Data (“Data Breach”).
The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach, and to assist the Controller in meeting the Controller’s obligations under applicable law.

10. Compliance, Cooperation and Response

In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law. The Controller shall reimburse the Processor for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as applicable.
The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Controller, unless such notification is not permitted under applicable law or a relevant court order.
The Processor may make copies of and/or retain Personal Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
The Processor shall reasonably assist the Controller in meeting its obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of processing and the information available to the Processor.
The parties acknowledge that it is the duty of the Controller to notify the Processor within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of the Processor. The Processor shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organisational measures to maintain compliance. If the parties agree that amendments are required, but the Processor is unable to accommodate the necessary changes, the Controller may terminate the part or parts of the Services or Services which give rise to the non-compliance. To the extent that other parts of the Services or Services provided are not affected by such changes, the provision of that Solution or Services shall remain unaffected.
The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA.

11. Term and Termination

The Processor will only process Personal Data for the term of the DPA. The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.
The Processor shall at the choice of the Controller, upon receipt of a written request received within 30 days the end of the provision of the Services or Services relating to processing, delete or return Personal Data to the Controller. The Processor shall in any event delete all copies of Personal Data in its systems within 60 days of the effective date of termination of the Agreement unless:
1. applicable law or regulations require storage of the Personal Data after termination; or
2. partial personal data of the Customer is stored in back-ups, then such personal data shall be deleted from back-ups 1 year after the effective date of termination of the Agreement.

12. General

This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
This DPA shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA.
The parties agree that this DPA is incorporated into and governed by the terms of the Agreement.

Exhibit A

Overview of data processing activities to be performed by the Processor

1. Controller

The Controller transfers Personal Data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below. The Controller is the Customer.

2. Processor

The Processor received data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below. The Processor is the Supplier.

3. Data Subjects

The Personal Data transferred includes but is not limited to the following categories of Data Subjects:

Employees, freelancers and contractors of the Controller and other users added by the Controller from time to time.
Authorised Users to whom the Controller has granted the right to access the Services in accordance with the terms of the Agreement.
Customers of the Controller and individuals who have expressed an interest in the Controller's business, or who have interacted with the Controller's Services.
Service providers of the Controller.
Children who are at least 16 years old.

4. Categories of Data

The Personal Data transferred includes but is not limited to the following categories of data:

Personal details, names, user names, encrypted passwords, in Writing addresses.
Personal Data derived from the use of the Services such as records and business intelligence information.
Meta data including sent, to, from, date, time, subject, which may include Personal Data.
Financial data
Consumption habits.
Data concerning education and profession.
Data revealing political opinions, image and sound recordings.
File attachments that may contain Personal Data.
Survey, feedback and assessment messages.
Information offered by users as part of support enquiries.
Other data added by the Controller from time to time.

5. Special Categories of Data

No sensitive data or special categories of data are permitted to be transferred and shall not be contained in the content or attachments of Writings to the Processor.

6. Processing Operations

The Personal Data transferred will be subject to the following basic processing activities:

Personal Data will be processed to the extent necessary to provide the Services in accordance with both the Agreement and the Controller’s instructions. The Processor processes Personal Data only on behalf of the Controller.
Technical support, issue diagnosis and error correction to ensure the efficient and proper running of the Services and to identify, analyse and resolve technical issues both generally in the provision of the Services and specifically in answer to a Controller query. This operation may relate to all aspects of Personal Data processed but will be limited to metadata where possible.
Virus, anti-spam and Malware checking in accordance with the Services provided. This operation relates to all aspects of Personal Data processed.
URL scanning for the purposes of the provision of targeted threat protection and similar service which may be provided under the Agreement. This operation relates to attachments and links in in Writings and will relates to any Personal Data within those attachments or links which could include all categories of Personal Data.