This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between Customer (“Customer” or “You”) and ScaleKit, Inc. (“Company”, “We”, “Ours” or “Us”). You and Us are hereinafter referred to individually as a “Party” and collectively as the “Parties”. You are required to read this DPA carefully as it forms an integral part of the Customer Agreement available here (the “Agreement”) and is applicable where the Company is the Processor of Your Personal Data forming part of the Customer Data.
1.1 We shall Process Personal Data forming a part of the Customer Data only on Your behalf and at all times only in accordance with this DPA. For the avoidance of doubt, You may either be the Controller or Processor of the Personal Data. Where You are the Controller, We are the Processor and where You are the Processor, We are the sub-processor of Personal Data.
1.2 Within the scope of the Agreement, each Party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.
2.1 This DPA becomes effective upon You subscribing to the Platform by agreeing to the Agreement. It shall continue to be in full force and effect as long as We are Processing Personal Data pursuant to the Agreement and shall terminate automatically thereafter.
2.2 Where amendments are required to ensure compliance of this DPA with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Agreement in accordance with the termination procedure contained therein.
We will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to Us. The Parties agree that You may communicate any change in Your initial instructions to Us by way of amendment to this DPA, which shall be signed by the Parties. If Your instruction infringes Data Protection Laws, We will inform You promptly without undue delay.
We will restrict Our personnel from Processing Personal Data without authorization. We will impose appropriate contractual obligations upon Our personnel, including relevant obligations regarding confidentiality, data protection and data security.
5.1 We will not disclose Personal Data to any government agency, court, or law enforcement agency except with Your written consent or as necessary to comply with applicable mandatory laws and lawful requests.
5.2 In case You receive any request or communication from Data Subjects which relates to the Processing of Personal Data ("Request"), We shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request were instructed by You. Where We receive a Request, We shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You.
We shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs"). Such measures are set out in Schedule B.
Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws, We shall provide, upon request, to You any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, unless the requested information or assistance is not pertaining to Our obligations under this DPA.
8.1 We shall, in accordance with Data Protection Laws, make available to You on request in a timely manner such information as is necessary to demonstrate compliance by Us with Our obligations under the Data Protection Laws.
8.2 Upon Your written request at reasonable intervals, We shall make available to You relevant information regarding Our Processing of Personal Data in the form of Our most recent third party audits and certifications, which may include audit reports such as SOC 2, to ensure compliance with Our obligations set out in this DPA. You agree that such third party audits and certifications are sufficient to demonstrate Our compliance with the obligations set out in this DPA.
8.3 We will immediately refer to You any requests received from national data protection authorities that relate to the Processing of Personal Data. We undertake to reasonably cooperate with You in Your dealings with national data protection authorities and with any audit requests received from national data protection authorities.
9.1 In respect of any Personal Data Breach (actual or reasonably suspected), We shall:
a. notify You of a Personal Data Breach involving Us or a sub-processor without undue delay;
b. provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.
10.1 The Parties agree that when the transfer of Personal Data from the Data Exporter to Data Importer is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this Agreement as follows:
A. In relation to transfers of Personal Data originating from the European Economic Area (EEA) and subject to the EU General Data Protection Regulation (EU GDPR), the SCCs shall apply, completed as follows:
Annex II of the SCCs shall be deemed completed with the information set out in Schedule B to this Agreement.
B. In relation to transfers of Personal Data originating from the United Kingdom (UK) or Switzerland, and subject to the UK GDPR or Swiss Data Protection Act (Swiss DPA), the SCCs as implemented under sub-paragraph (A) above will apply with the following modifications:
With respect to transfers subject to UK Data Protection Laws, Clause 18 shall state: “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”. With respect to transfers subject to the Swiss DPA, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
C. In relation to transfers of Personal Data originating from the United Kingdom and subject to the UK GDPR, the UK Standard Contractual Clauses (UK SCCs) are hereby incorporated as an amendment to the EU SCCs and updated to reflect the details set forth in Schedule D to this Agreement.
10.2 For the purposes of the SCCs and the UK SCCs, You agree that You are the “Data Exporter” and We are the “Data Importer.”
10.3 The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Legislation requires the adoption of an alternative transfer solution, the Data Exporter and Data Importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the Data Exporter’s option, delete or return the Personal Data to the Data Exporter.
Upon termination of Your Account, We may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Agreement. This requirement shall not apply to the extent that We are permitted by applicable law to retain some or all of the Personal Data, in which event We shall isolate and protect the Personal Data from any further processing.
A. California Privacy Laws
In addition to the other provisions of this DPA, this Clause 12(A) shall apply to the Processing of the Personal Information of residents of the State of California, USA, and shall override any conflicting terms in the rest of the DPA. In this Clause, the terms “Business”, “Business Purpose”, “Commercial Purpose”, “Service Provider”, “Personal Information”, “Consumers”, “Sell”, and “Share” shall have the meaning given in the California Privacy Laws.
Where We act as a Service Provider on Your behalf in accordance with this DPA:
i. You disclose Personal Information to Us solely for: (a) Valid Business Purposes; and (b) To enable Us to Process the Personal Information for providing the Platform under the Agreement.
ii. We shall not:
iii. We shall comply with all applicable sections of the CA Privacy Laws, including by providing the same level of privacy protection to the Personal Information as required of You.
iv. We acknowledge that You have the right, upon notice, to take reasonable and appropriate steps to stop and remediate any unauthorized use of Personal Information.
v. We certify that We understand the restrictions in this Clause and will comply with them.
B. Colorado and Virginia Privacy Laws: In addition to the other provisions of this DPA, in the case of Processing of the Personal Data of residents of the State of Colorado or the State of Virginia, USA, We shall provide reasonable assistance to You in meeting Your obligations under the applicable Data Protection Laws, particularly in relation to the security of Processing the Personal Data.
13.1 In case of any conflict, the provisions of this DPA shall take precedence over the Agreement or provisions of any other agreement with Us. In case of any conflict between this DPA and the SCCs, the SCCs shall take precedence over the provisions of the rest of the DPA.
13.2 No Party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
13.3 Where this DPA requires a “written notice” such notice can also be communicated per email to the other Party. Notices shall be sent to the contact persons set out in Schedule A.
13.4. Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
13.5 Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.
The following Schedules form an integral part of this DPA:
Data Exporter: The Data Exporter is the entity that has subscribed to the Agreement and their contact details are as provided by them while subscribing to the Agreement.
Signature & Date: By accepting the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the date of acceptance.
Role: Controller or Processor
Data Importer:
DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: Data Exporter’s authorized personnel and other individuals such as Data Exporter’s customers’ or clients’ and their authorized personnel.
Categories of personal data transferred
The transferred Personal Data concerns the following categories of data:
Name, phone number, company-level information, e-mail address, IP location, operating system and browser information.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
No Sensitive Personal Information transferred. The Data Exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to the Data Importer for processing.
The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Personal Data is transferred on a continuous basis for the duration of subscription to the Platform.
Nature of the processing
Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means).
Purpose(s) of the data transfer and further processing
Personal Data is transferred in the course of accessing and using the Platform by the Data Exporter so that the Data Importer may provide, support, maintain and improve the Platform.
The Data Importer may further transfer Personal Data to third-party service providers that host and maintain the applications, backup, storage, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Upon termination of the Data Exporter’s account, the Data Importer will delete all Personal Data in accordance with Clause 12 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:
Module 2: Transfer Controller to Processor
Module 3: Transfer Processor to Processor
Where You are the Data Exporter, the supervisory authority shall be the competent supervisory authority that has supervision over You in accordance with Clause 13 of the SCCs.
TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organizational measures to ensure the security of Personal Data are mentioned in the Data Importer’s Information and Security Policy which You may request access to by writing to support@scalekit.com
Not used.
This UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 11.1 (A) of this DPA.
For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Agreement by this reference) and completed as follows:
(a) In Table 1 of the UK SCCs, the Parties’ details and key contact information shall be as set forth in Schedule A.
(b) In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clause 11.1(A)(i), (ii), (iii), (iv) of this DPA.
(c) In Table 3 of the UK SCCs:
(d) In Table 4 of the UK SCCs, both the Data Importer and the Data Exporter may end the UK SCCs in accordance with the terms of the UK SCCs.
Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.
