Data Processing Agreement
This Data Processing Agreement (“DPA”) is made and entered into as of this ____ day of ____, 202_ forms part of the Service Terms and Conditions (the “Agreement”). You acknowledge that you, (“Organization”) (collectively, ”You”, ”Your”, “Client”, or “Data Controller”) have read and understood and agree to comply with this DPA, and are entering into a binding legal agreement with Tuvis Solutions Ltd. as defined below (“Tuvis”, ”Us”, ”We”, ”Our”, “Service Provider” or “Data Processor”) to reflect the parties’ agreement with regard to the Processing of Personal Data (as such terms are defined below) subject to the Data Protection Laws and Regulations under this DPA. Both parties shall be referred to as the “Parties” and each, a “Party”.
WHEREAS, Tuvis shall provide the services set forth in the Agreement (collectively, the “Services”) for Client, as described in the Agreement; and
WHEREAS, In the course of providing the Services pursuant to the Agreement, we may process Personal Data on your behalf, in the capacity of a “Data Processor”; and the Parties wish to set forth the arrangements concerning the processing of Personal Data (defined below) within the context of the Services and agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
NOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the parties, intending to be legally bound, agree as follows:
- INTERPRETATION AND DEFINITIONS
- The headings contained in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA.
- References to clauses or sections are references to the clauses or sections of this DPA unless otherwise stated.
- Words used in the singular include the plural and vice versa, as the context may require.
- Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
- “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 Client’s Affiliate(s) which (a) is subject to the Data Protection Laws And Regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Client and Tuvis, but has not signed its own agreement with Tuvis and is not a “Client” as defined under the Agreement.
- “CCPA” means the California Consumer Privacy Act of 2018 and its modifications and amendments, including the California Privacy Rights Act.
- “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this DPA only, and except where indicated otherwise, the term “Data Controller” shall include the Organization and/or the Organization’s Authorized Affiliates.
- “Data Protection Laws and Regulations” means all laws and regulations of the European Union, the European Economic Area and their Member States, the United Kingdom and Brazil, if applicable to the Processing of Personal Data under the Agreement.
- “Delete” means to remove or obliterate Personal Data such that it cannot be recovered or reconstructed.
- “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
- “Member State” means a country that belongs to the European Union and/or the European Economic Area. “Union” means the European Union.
- “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).
- “LGPD” means the Brazilian General Data Protection Law no 13709/2018 (“Lei Geral de Proteção de Dados Pessoais”).
- “Tuvis” means the relevant Tuvis entity of the following Tuvis legal entities: Tuvis Solutions Ltd.
- “Tuvis Group” means Tuvis and its Affiliates engaged in the Processing of Personal Data.
- “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person..
- “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.
- “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Client, attached in the current version as of date of this DPA as Schedule 2 to this DPA and as updated from time to time, and such new versions are accessible by request to [email protected], or as otherwise made reasonably available by Tuvis.
- “Standard Contractual Clauses“ or “SCC” means (i) the applicable module of the standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council from June 4th 2021, as available here, as updated, amended, replaced or superseded from time to time by the European Commission; or (ii) where required from time to time by a supervisory authority for use with respect to any specific restricted transfer, any other set of contractual clauses or other similar mechanism approved by such Supervisory Authority or by Applicable Laws for use in respect of such Restricted Transfer, as updated, amended, replaced or superseded from time to time by such Regulatory Authority or Data Protection Laws and Regulations.
- “Sub-processor” means any Processor engaged by Tuvis and/or Tuvis Affiliate to Process Personal Data on behalf of Client.
- “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR or in Brazil pursuant to the LGPD.
- PROCESSING OF PERSONAL DATA
- Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations and comply at all times with the obligations applicable to data controllers.
For the avoidance of doubt, Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Client shall have sole responsibility for the means by which Client acquired Personal Data. Without limitation, Client shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall at all times have any and all required ongoing legal bases in order to collect, Process and transfer to Tuvis the Personal Data and to authorize the Processing by Tuvis of the Personal Data which is authorized in this DPA. Client shall defend, hold harmless and indemnify Tuvis, its Affiliates and subsidiaries (including without limitation their directors, officers, agents, subcontractors and/or employees) from and against any liability of any kind related to any breach, violation or infringement by Client and/or its authorized users of any Data Protection Laws and Regulations and/or this DPA and/or this Section.
- Tuvis’ Processing of Personal Data.
- Subject to the Agreement, Tuvis shall Process Personal Data that is subject to this DPA only in accordance with Client’s documented instructions as necessary for the performance of the Services and for the performance of the Agreement and this DPA, unless required by Union or Member State law or any other applicable law to which Tuvis and its Affiliates are subject; in which case, Tuvis shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
- To the extent that Tuvis or its Affiliates cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind), from Client and/or its authorized users relating to Processing of Personal Data or where Tuvis considers such a request to be unlawful, Tuvis (i) shall inform Client, providing relevant details of the problem (but not legal advice), (ii) Tuvis may, without any kind of liability towards Client, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Client shall pay to Tuvis all the amounts owed to Tuvis or due before the date of termination. Client will have no further claims against Tuvis (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).
- RIGHTS OF DATA SUBJECTS
- If Tuvis receives a request from a Data Subject to exercise its rights as laid down in Data Protection Laws and Regulations (“Data Subject Request”), Tuvis shall, to the extent legally permitted, promptly notify and forward such Data Subject Request to Client. Taking into account the nature of the Processing, Tuvis shall use commercially reasonable efforts to assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Client shall be responsible for any costs arising from Tuvis’ provision of such assistance.
- TUVIS PERSONNEL
- Tuvis shall grant access to the Personal Data to persons under its authority (including, without limitation, its personnel) only on a need-to-know basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Tuvis may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Laws and Regulations (in such a case, Tuvis shall inform the Client of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), inventors or potential acquirers.
- AUTHORIZATION REGARDING SUB-PROCESSORS
- Tuvis’ current list of Sub-processors is included in Schedule 3 (“Sub-processor List”) and is hereby approved by Client.
- Client shall subscribe to notifications of new Sub-processors by sending an email to [email protected], with the subject SUBSCRIPTION TO SUB-PROCESSORS NOTIFICATION and if Client subscribes, Tuvis shall provide notification of any new Sub-processor(s).
- Client may reasonably object to Tuvis’ use of a Sub-processor for reasons related to the GDPR by notifying Tuvis promptly in writing within five (5) business days after receipt of Tuvis’ notice in accordance with the mechanism set out in Section 5.2 and such written objection shall include the reasons related to the Data Protection Laws and Regulations for objecting to Tuvis’ use of such Sub-processor. Failure to object to such Sub-processor in writing within five (5) business days following Tuvis’ notice shall be deemed as acceptance of the Sub-Processor. In the event Client reasonably objects to a Sub-processor, as permitted in the preceding sentences, Tuvis will use reasonable efforts to make available to Client a change in the Services or recommend a commercially reasonable change to Client’s use of the Services to avoid Processing of Personal Data by the objected-to Sub-processor without unreasonably burdening the Client. If Tuvis is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Client may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Tuvis without the use of the objected-to Sub-processor by providing written notice to Tuvis provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Tuvis. Until a decision is made regarding the Sub-processor, Tuvis may temporarily suspend the Processing of the affected Personal Data. Client will have no further claims against Tuvis due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
- In accordance with Articles 28.7 and 28.8 of the GDPR, if and when the European Commission lays down the Standard Contractual Clauses referred to in such Article, the Parties may revise this DPA in good faith to adjust it to such Standard Contractual Clauses. This Section 5 shall not apply to subcontractors of Tuvis which provide ancillary services to support the performance of the DPA. This includes, for example, telecommunication services, maintenance and user service, cleaning staff, or auditors.
- Taking into account the state of the art, the costs of implementation, the scope, the context, the purposes of the Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Tuvis shall maintain all industry-standard technical and organizational measures required pursuant to applicable Data Protection Laws and Regulations for protection of the security (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, as set forth in the Security Documentation which are hereby approved by Client. Upon the Client’s request, Tuvis will use commercially reasonable efforts to assist Client, at Client’s cost, in ensuring compliance with the obligations pursuant to applicable Data Protection Laws and Regulations taking into account the nature of the processing, the state of the art, and the information available to Tuvis.
- Upon Client’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement and this DPA, Tuvis shall make available to Client that is not a competitor of Tuvis (or Client’s independent, third-party auditor that is not a competitor of Tuvis) a copy or a summary of Tuvis’ then most recent third-party audits or certifications, as applicable (provided, however, that such audits, certifications and the results therefrom, including the documents reflecting the outcome of the audit and/or the certifications, shall only be used by Client to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Tuvis’ prior written approval and, upon Tuvis’ first request, Client shall return all records or documentation in Client’s possession or control provided by Tuvis in the context of the audit and/or the certification). At Client’s cost and expense, Tuvis shall allow for and contribute to audits, including inspections of Tuvis’, conducted by the controller or another auditor mandated by the controller (who is not a direct or indirect competitor of Tuvis) provided that the parties shall agree on the scope, methodology, timing and conditions of such audits and inspections. Notwithstanding anything to the contrary, such audits and/or inspections shall not contain any information, including without limitation, personal data that does not belong to Client.
- PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION
Tuvis shall notify Client without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data, transmitted, stored or otherwise Processed by Tuvis or its Sub-processors of which Tuvis becomes aware (a “Personal Data Incident”). Tuvis shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Tuvis deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Tuvis’ reasonable control. The obligations herein shall not apply to incidents that are caused by Client or Client’s users or are otherwise unrelated to the provision of the Services. In any event, Client will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).
- RETURN AND DELETION OF PERSONAL DATA
Subject to the Agreement, Tuvis shall, at the choice of Client, delete or return the Personal Data to Client after the end of the provision of the Services relating to Processing, and shall delete existing copies unless applicable law requires storage of the Personal Data. In any event, to the extent required or allowed by applicable law, Tuvis may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defence of legal claims and/or to comply with applicable laws and regulations. If the Client requests the Personal Data to be returned, the Personal Data shall be returned in the format generally available for Tuvis’ Clients.
- AUTHORIZED AFFILIATES
- The Parties acknowledge and agree that, by executing the DPA, the Client enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Tuvis. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. 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 Client.
- The Client shall remain responsible for coordinating all communication with Tuvis 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.
- TRANSFERS OF DATA
- Transfers to countries that offer adequate level of data protection. Personal Data may be transferred from the EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”), the United Kingdom and Brazil to countries that offer adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities (“Adequacy Decisions”), without any further safeguard being necessary.
- Transfers to other countries. If the Processing of Personal Data includes transfers from the EEA (or Brazil) to countries outside the EEA (or Brazil respectively), which are not subject to an Adequacy Decision (“Other Countries”) for example, Israel, the Parties shall comply with the following terms with respect to the EU transfers of Personal Data, Client as a Data Exporter (as defined in the SCCs) and Tuvis on behalf of itself and each Tuvis Affiliate (as applicable) as a Data Importer (as defined in the SCCs) hereby enter into the Standard Contractual Clauses set out in Schedule 4. To the extent that there is any conflict or inconsistency between the terms of the Standard Contractual Clauses and the terms of this DPA, the terms of the Standard Contractual Clauses shall take precedence.
- The Client hereby authorizes Tuvis (and its Sub-Processors) to transfer Personal Data related to the Services provided to the Client to those countries or territories where Tuvis’ Authorized Affiliates and the Sub-Processors are located, consistent with the Agreement and this DPA.
This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections 2.2, 2.3.3, 8 and 12 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.
- RELATIONSHIP WITH AGREEMENT
In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement.
Notwithstanding anything to the contrary in the Agreement and/or in any agreement between the parties and to the maximum extent permitted by law: (A) Tuvis’ (including Tuvis’ Affiliates) entire, total and aggregate liability, related to personal data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation under the Agreement or applicable law regarding data protection or privacy, shall be limited to the amounts paid to Tuvis under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (B) In no event will Tuvis and/or Tuvis Affiliates and/or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings; (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (C) The foregoing exclusions and limitations on liability set forth in this Section shall apply: (i) even if Tuvis, Tuvis Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).
- CCPA. To the extent that the Personal Data is subject to the CCPA, Tuvis shall not sell or share Client’s Personal Data. Tuvis acknowledges that when processing Personal Data in the context of the provision of the Services, Client is not selling or sharing Personal Data to Tuvis. Tuvis agrees not to retain, use or disclose Client Personal Data: (i) for any purpose other than the Business Purpose (as defined below); (ii) for no other commercial or Business Purpose; or (iii) outside the direct business relationship between Tuvis and Client. Notwithstanding the foregoing, Tuvis may use, disclose, or retain Client Personal Data to: (i) transfer the Personal Data to other Tuvis’ entities (including, without limitation, affiliates and subsidiaries), service providers, third parties and vendors, in order to provide the Services to Client; (ii) to comply with, or as allowed by, applicable laws; (iii) to defend legal claims or comply with a law enforcement investigation; (ii) for internal use by Tuvis to build or improve the quality of its services and/or for any other purpose permitted under the CCPA; (iii) to detect data security incidents, or protect against fraudulent or illegal activity; and (iv) collect and analyse anonymous information. Tuvis shall use commercially reasonable efforts to comply with its obligations under CCPA. If Tuvis becomes aware of any material applicable requirement (to Tuvis as a service provider) under CCPA that Tuvis cannot comply with, Tuvis shall use commercially reasonable efforts to notify Client. Upon written Client’s notice, Tuvis shall use commercial reasonable and appropriate steps to stop and remediate Tuvis’ alleged unauthorized use of Personal Data; provided that Client must explain and demonstrate in the written notice which processing activity of Personal Data it considers to be unauthorized and the applicable reasons. Tuvis shall use commercially reasonable efforts to enable Client to comply with consumer requests made pursuant CCPA. Notwithstanding anything to the contrary, Client shall be fully and solely responsible for complying with its own requirements under CCPA. “Business purpose” means the Processing activities that Tuvis will perform to provide Services (as described in the Agreement), this DPA and any other instruction from Client, as otherwise permitted by applicable law, including, CCPA and the applicable regulations, or as otherwise necessary to provide the Services to Client.
This DPA may be amended at any time by a written instrument duly signed by each of the Parties.
- LEGAL EFFECT
This DPA shall only become legally binding between Client and Tuvis when the formalities steps set out in the Section “INSTRUCTIONS ON HOW TO EXECUTE THIS DPA” below have been fully completed. Tuvis may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any Tuvis obligation hereunder may be performed (in whole or in part), and any Tuvis right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Tuvis.
The Parties represent and warrant that they each have the power to enter into, execute, perform and be bound by this DPA.
You, as the signing person on behalf of Client, represent and warrant that you have, or you were granted, full authority to bind the Organization and, as applicable, its Authorized Affiliates to this DPA. If you cannot, or do not have authority to, bind the Organization and/or its Authorized Affiliates, you shall not supply or provide Personal Data to Tuvis.
By signing this DPA, Client enters into this DPA on behalf of itself and, to the extent required or permitted under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent that Tuvis processes Personal Data for which such Authorized Affiliates qualify as the/a “data controller”.
This DPA has been pre-signed on behalf of Tuvis.
Instructions on how to execute this DPA.
- To complete this DPA, you must complete the missing information; and
- Send the completed and signed DPA to us by email, indicating the Client’s name, to [email protected]
List of Schedules
SCHEDULE 1 – DETAILS OF THE PROCESSING
SCHEDULE 2 – SECURITY MEASURES
- SCHEDULE 3 – SUB-PROCESSOR LIST
- SCHEDULE 4 – STANDARD CONTRACTUAL CLAUSES
The parties’ authorized signatories have duly executed this Agreement:
Client Legal Name:
TUVIS SOLUTIONS LTD.