Data Processing Agreement

CometChat Data Processing Agreement

The purpose of this CometChat Data Processing Agreement (this “DPA”) is to define the conditions under which CometChat, Inc. with registered office in Colorado/USA, at address Suite 200, 1002 Walnut St, Boulder, CO, 80302, USA (also referred in this DPA as the “Processor”) undertakes to carry out, on the User’s behalf (also being referred in this DPA as the “Controller”), the personal data processing operations under the CometChat’s Terms of Service (the “Agreement”) and defined below.

This DPA amends and forms part of a contract of service between CometChat and the User together with the Terms of Service. Terms not otherwise defined herein shall have the meaning as set forth in the CometChat’s Terms of Service.

If you need a sign copy of this DPA or if you think we should tailor this DPA to your specific activities (in particular if you think Article 1 on Description of the Processing should be amended), please contact us at [email protected]

As part of their contractual relations, the parties shall undertake to comply with the applicable regulations on personal data processing (hereinafter “the Applicable Laws”) and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (hereinafter “the General Data Protection Regulation”).

1. Description of the Processing

  1. Categories of data subjects: data subjects include the individuals about whom personal data is provided to CometChat via the Services by the User (the “End Users”), the extent of which is determined and controlled by the User in its sole discretion.
  2. Subject-matter, nature and purpose of the processing: the subject-matter of the processing operations carried out by the Processor is the provision of the Services to the Controller under the Agreement or otherwise agreed between the parties.
  3. Types of personal data: depending on how the Controller chooses to use the Services, the processing of personal data may cover the following types/categories of personal data relating to the End Users:
    • Name
    • Email address
    • Phone
    • Conversation / chat content (voice, video or text)
  4. Duration of the processing: personal data will be processed for the duration of the Agreement.

2. Processor’s Obligations

a. General Obligations of the Processor:

The Processor shall undertake to process the personal data solely for the purposes subject to CometChat’s Terms of Service, and in accordance with the documented instructions from the Controller appended hereto. Where the Processor considers that an instruction infringes the General Data Protection Regulation or the Applicable Laws, it shall immediately inform the Controller thereof. Moreover, where the Processor is obliged to transfer personal data to a third country or an international organization, under Union law or Member State law to which the Processor is subject, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

The Processor will guarantee the confidentiality of personal data processed hereunder and ensures that the persons authorized to process the personal data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The Processor ensures that these persons have received the appropriate personal data protection training.

b. Sub-Processing:

For the performance of this DPA and the Agreement the Processor may use Sub-processors as listed here.

In case there is an addition or a replacement of a sub-processor in this list, the Processor will inform the Controller of this change by email. If the Controller does not object within two weeks after receiving this email, the consent to the addition or replacement of subprocessor shall be deemed to be given. If the Controller objects and the parties are unable to resolve such objection, either party may terminate the Agreement by providing a written notice to the other party.

c. Data subjects’ Right to Information:

It is the Controller’s responsibility to inform the data subjects concerned by the processing operations at the time personal data are being collected.

d. Exercise of Data Subjects’ Rights:

The Processor shall assist the Controller, insofar as it is possible, for the fulfilment of its obligation to respond to requests for exercising the data subject’s rights: right of access, to rectification, erasure and to object, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision (including profiling).

Where the data subjects submit requests to the Processor to exercise their rights, the Processor will forward these requests to the Controller.

e. Notification of Personal Data Breaches:

The Processor shall notify the Controller of any personal data breach without undue delay after having become aware of it. Said notification shall be sent along with any available necessary documentation to enable the Controller, where necessary, to notify this breach to the competent supervisory authority.

f. Processor’s Assistance to the Controller Regarding Compliance with its Obligations:

The Processor assists the Controller in carrying out data protection impact assessments.

The Processor assists the Controller with regard to prior consultation of the supervisory authority.

g. Security Measures

The Processor shall take the appropriate technical and organizational measures to adequately protect personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data.

These measures are:

  • the Processor implements and maintains a reasonable and appropriate security program comprising adequate security, technical and organizational measures to protect against unauthorized, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, customer personal data;
  • the Processor does not modify, alter, delete, publish or disclose any User’ personal data to any third party, nor allow any third party to process such personal data on the Processor’s behalf unless the third party is bound to similar confidentiality and data handling provisions;
  • the Processor shall ensure that access to personal data is limited to those personnel who require such access to perform its obligations under the Agreement, and its personnel engaged in the processing of personal data are informed of the confidential nature of the personal data, have received appropriate training on their responsibilities and have executed written confidentiality agreements; and
  • the Processor will only process User’s personal data to the extent necessary to perform its obligations under the Agreement, upon written instructions of the User (only as mutually agreed upon), and in accordance with the Applicable Laws.

h. Data Exit:

Other than to the extent required to comply with Applicable Laws, following termination or expiration of the Agreement, the Processor will delete the personal data processed pursuant to this DPA.

i. The Data Protection Officer

The Processor communicates to the Controller the name and contact details of its data protection officer, if it has designated one, in accordance with Article 37 of the General Data Protection Regulation.

k. Documentation

At the request of the Controller, the Processor provides the Controller with the necessary information for demonstrating compliance with all of its obligations and for allowing the Controller or any other auditor it has authorized to conduct audits, including inspections, and for contributing to such audits.

3. Controller’s Obligations

The Controller undertakes to:

  • provide the Processor with the data mentioned in Section 1 hereof;
  • document, in writing, any instruction bearing on the processing of data by the Processor;
  • ensure, before and throughout the processing, compliance with the obligations set out in the Applicable Laws on the Processor’s part;
  • supervise the processing, including by conducting audits and inspections with the Processor.

4. Transfer of Personal Data outside the EEA

As the Processor is located in the United States, the parties are entering into the Standard Contractual Clauses pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC as set out in SCHEDULE 1.

IN WITNESS WHEREOF, the parties have caused this DPA to be executed by their duly authorized officers or agents.

SCHEDULE 1

EU STANDARD CONTRACTUAL CLAUSES (PROCESSORS)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity identified as “the Controller” in this DPA (the “data exporter”)

And

The entity identified as “the Processor” in this DPA (the “data importer”) based in the United States

each a ‘party’; together ‘the parties’,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1);
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).
Clause 5

Obligations of the data importer (2)

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
    2. any accidental or unauthorised access; and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  6. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6

Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
    The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7

Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Sub-processing

  1. The Controller acknowledges and consents that the Processor subcontracts part of its obligations under the Clauses to sub-processors listed here.
    In case there is an addition or a replacement of a sub-processor in this list, the Processor will inform the Controller of this change by email. If the Controller does not object within two weeks after receiving this email, the consent to the addition or replacement of sub-processor shall be deemed to be given. If the Controller objects and the parties are unable to resolve such objection, either party may terminate the Agreement by providing a written notice to the other party.
    Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses ( 3 ). Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12

Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

(1)Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.

(2) Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.

(3) This requirement may be satisfied by the sub-processor co-signing the contract entered into between the data exporter and the data importer under this Decision.

Appendix 1

to the Standard Contractual Clauses

Data exporter

The data exporter is the entity identified as “the Controller” in this DPA.

Data importer

The data importer is the Processor.

Relevant activities to the transfer: as described in Section 1 of this DPA.

Data subjects

The categories of data subjects are defined in Section 1 of this DPA.

Categories of data

The categories of personal data are defined in Section 1 of this DPA.

Special categories of data (if appropriate)

The special categories of personal data, if any, are listed in Section 1 of this DPA.

Processing operations

The nature of operations to be carried out on the personal data are specified in Section 1 of this DPA.

Appendix 2

to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed and signed by the parties.

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

The technical and organizational measures implemented by the data importer are to be requested as described in Section 2.g of this DPA.

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