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Effective March 8, 2023
This Data Processing Agreement (“DPA”) forms part of the Terms of Service (available at https://databox.com/terms-of-service) (“ToS”) and Privacy Policy (available at https://databox.com/privacy-policy) or such other locations as the ToS and Privacy Policy may be posted from time to time (as applicable, the “Agreement”), entered into by and between the Customer and Databox, Inc. (“Databox”), pursuant to which Customer has accessed Databox Application Services (the “Services”) as defined in the applicable Agreement. The purpose of this DPA is to reflect the parties’ agreement with regard to the processing of Personal Data in accordance with the requirements of Data Protection Legislation as defined below.
If the Customer entity entering into this DPA has executed an order form or statement of work with Databox pursuant to the Agreement (an “Ordering Document”), but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document and applicable renewal Ordering Documents. If the Customer entity entering into this DPA is neither a party to an Ordering Document nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity that is a party to the Agreement execute this DPA.
“CCPA” means the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer Personal Data” means any data provided to Databox by Customer that includes Personal Data. A description of the categories of Customer Personal Data and Data Subjects subject to this DPA is provided in Appendix 1.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the (i) the GDPR, together with any national implementing laws in any Member State of the European Economic Area (“EEA”); (ii) UK GDPR; Swiss FADP, CCPA and/or state privacy laws, including as each may be amended, repealed, consolidated or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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, including any amendments or implementing laws or regulations.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available). The ToS is considered an “Instruction.”
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Processing” (and its cognates) means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” or “SCCs” means Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on 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 (referencing Module Two: Transfer Controller to Processor, and/or other modules as applicable) as such Standard Contractual Clauses are available at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en, and as may be amended or replaced by the European Commission from time to time.
“Subprocessor” means a third party that Processes Personal Data on behalf of a Processor.
“Swiss FADP” means the Federal Act on Data Protection of June 19, 1992 (DPA) of Switzerland and its implementing ordinances.
“UK GDPR” means the GDPR as incorporated into UK law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments, etc.) (EU Exit) Regulations 2019.
“UK Transfer Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner’s Office (Version B1.0, in force as of 21 March 2022), available at: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf.
Definitions of terms not set forth herein shall have the same meaning as in the Agreement or Data Protection Law.
a. Customer hereby appoints Databox for the Processing of the Customer Personal Data on its behalf for the purposes set forth in the Agreement. Databox shall Process the Customer Personal Data only (i) to perform its obligations set forth in the Agreement, (ii) in accordance with written instructions from Customer, including with regard to any cross-border transfers, and (iii) as needed to comply with applicable law, regulation or other legal requirement. The parties acknowledge that Customer is a Controller and maintains control over Data Subjects’ Personal Data and Databox is a Processor.
b. Each party agrees that the Personal Data, including Customer Personal Data, shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction.
c. Personal Data shall remain the property of the disclosing party.
d. Databox will process Customer Personal Data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written Instructions from the Customer that are mutually agreed upon in writing. Databox agrees that:
i. it will implement and maintain 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 and as further described in Databox’s Security Policy (https://databox.com/security-policy);
ii. it will not modify, alter, delete, publish or disclose any Customer Personal Data to any third party, nor allow any third party to process such personal data on Databox’ behalf unless the third party is bound to similar confidentiality and data handling provisions;
iii. only its personnel who “need-to-know” will be given access to Customer Personal Data to the extent necessary to perform its obligations under the ToS and any further Instructions. It shall provide adequate training to its staff and ensure that they comply with the obligations in this DPA;
iv. it will only process Customer Personal Data to the extent necessary to perform its obligations under the Agreement and upon written instructions of the Customer (only as mutually agreed upon), and in accordance with applicable laws; and
v. it will inform Customer immediately in case it believes that an Instruction violates the Data Protection Law and shall cease processing the Company Personal Data that is subject to the Instruction in question. However, Databox’s performance of an Instruction subsequently deemed to be unlawful shall not be considered a breach of Databox’s obligations under the Agreement or this DPA.
e. Upon termination or expiration of the Agreement, at Customer’s request Databox will either promptly (i.e., in no more than 30 days) return or destroy the Customer Personal Data in its possession or control. This requirement shall not apply to the extent Databox is required by applicable law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, which Customer Personal Data Databox shall securely isolate and protect from any further processing, except to the extent required by applicable law.
f. To the extent Customer discloses Personal Information of California consumers or households to Databox for Processing, Databox may be considered a “service provider” as defined in CCPA Section 1798.140(ag)(1), as applicable. Databox acknowledges and agrees that Customer discloses Personal Information to Databox solely for: (i) a valid business purpose that does not involve cross-context behavioural advertising; and (ii) Databox to perform the services as set forth in this Agreement. Databox is prohibited from: (i) selling or sharing Personal Information to third parties as set forth in the CCPA; (ii) retaining, using, or disclosing Personal Information for a commercial purpose other than providing the services to Customer; (iii) retaining, using, or disclosing the Personal Information outside of the direct business relationship between Databox and Customer; (iv) combining the Personal Information received from or on behalf of the business with Personal Information received or collected in other contexts, or (v) using the Personal Information to provide services to another person or entity. Databox hereby certifies it understands and will comply with these obligations and restrictions in accordance with the CCPA and gives Customer permission to monitor Databox’s compliance with the Agreement.
Further, Databox agrees to reasonably assist Customer in responding to any requests from a California consumer or household exercising their rights under the CCPA. Databox shall notify Customer if it determines or believes that it cannot meet its obligations under the CCPA. Customer may, upon reasonable notice, take reasonable and appropriate steps to ensure that Databox processes Personal Information in a manner consistent with Customer’s obligations under the CCPA and to stop and remediate any unauthorized use of Personal Information by the Databox. Databox to provide notice to Customer if it engages any third party to assist in the processing of Personal Information. The Databox’s contract with such third parties shall require such third parties to follow the same obligations as set forth in this notice. The parties agree that the disclosure of Personal Information to Databox for processing does not constitute the “sale” or “sharing” of Personal Information to third parties under the CCPA. For purposes of this section, “Personal Information” is defined in CCPA Section 1798.140(v)(1).
To the extent Customer discloses to Databox the Personal Data of consumers for Processing subject to other US State privacy laws (including but not limited to the privacy laws of Colorado, Connecticut, Utah or Virginia (“Other US State Privacy Laws”) as each become effective), Databox will process such Personal Data as a “service provider”, “processor” or equivalent and in compliance with such Other US State Privacy Laws, as applicable.
g. For cross-border transfers, the parties agree as follows:
i. Transfers of EU or EEA Personal Data. Databox shall not transfer any Customer Personal Data (and shall not permit its sub-processors to transfer any Customer Personal Data) to a country outside the EU or EEA that is not recognized as providing an adequate level of protection for Personal Data by the European Commission without the prior consent of Customer. Databox understands that Customer must approve and document that adequate protection for the Customer Personal Data will exist after such cross-border transfer. Accordingly, the parties hereby agree that the Standard Contractual Clauses as implemented below will apply to the Processing by Databox of the Customer Personal Data in any country outside the EU or EEA determined not to provide an adequate level of protection:
ii. Transfers of UK Personal Data. Databox shall not transfer any Customer Personal Data (and shall not permit its sub-processors to transfer any Customer Personal Data) to a country outside the UK that is not recognized as providing an adequate level of protection for Personal Data by the UK government without the prior consent of Customer. Databox understands that Customer must approve and document that adequate protection for the Customer Personal Data will exist after such cross-border transfer. Accordingly, the parties hereby agree that the UK Transfer Addendum authorizing such transfers shall apply as implemented below:
iii. Transfers of Swiss Personal Data. Databox shall not transfer any Customer Personal Data (and shall not permit its sub-processors to transfer any Customer Personal Data) to a country outside Switzerland that is not recognized as providing an adequate level of protection for Personal Data by the Swiss government without the prior consent of Customer. Databox understands that Customer must approve and document that adequate protection for the Customer Personal Data will exist after such cross-border transfer. Accordingly, the parties hereby agree that SCCs authorizing such transfers shall apply as implemented below:
iv. The parties further agree that if the Standard Contractual Clauses or the UK Transfer Addendum are updated, replaced or are no longer available for any reason, the parties will cooperate in good faith to implement updated or replacement Standard Contractual Clauses or UK Transfer Addendum, as appropriate, or identify an alternative mechanism(s) to authorize the contemplated cross-border transfers.
a. Customer warrants that it has all necessary rights to provide to Databox the Customer Personal Data for processing in connection with the provision of the Services.
b. To the extent required by applicable law, Customer is responsible for ensuring that any Data Subject consents that may be necessary to this processing are obtained, and for ensuring that a record of such consents is maintained, including any consent to use Personal Data that is obtained from third parties. Should such consent be revoked by a Data Subject, Customer is responsible for communicating the fact of such revocation to Databox, and Databox remains responsible for implementing any Customer Instruction with respect to the further processing of that Personal Data or, as may be in accordance with any of Databox’s legal obligations.
c. Customer understands, as a Controller, that it is responsible (as between Customer and Databox) for:
i. determining the lawfulness of any processing, performing any required data protection impact assessments, and accounting to regulators and individuals, as may be needed;
ii. making reasonable efforts to verify parental consent when data is collected on a Data Subject under 16 years of age;
iii. providing relevant privacy notices to Data Subjects as may be required in your jurisdiction, including notice of their rights and provide the mechanisms for individuals to exercise those rights;
iv. responding to requests from individuals about their data and the processing of the same, including requests to have personal data altered, corrected, or erased, and providing copies of the actual data processed;
v. implementing your own appropriate technical and organizational measures to ensure and demonstrate processing in accord with this DPA; and
vi. notifying individuals and any relevant regulators or authorities of any incident as may be required by law in your jurisdiction.
d. Databox shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible (in Databox’s sole determination and discretion), in fulfilling Customer’s obligations to respond to Data Subjects’ requests to exercise their rights under Data Protection Law. For avoidance of doubt, Databox shall not respond directly to Data Subjects’ requests unless instructed to do so by Customer.
e. Customer hereby provides general written authorization to Databox’s use of its affiliates, as applicable, and Subprocessors to process Customer Personal Data pursuant to the Agreement and this DPA, provided that: (i) Databox will maintain an up-to-date list of its Subprocessors, which it will provide prior notice to Customer of any change in Subprocessors at least 30 days prior to the change; and (ii) Databox will impose data protection terms on any Subprocessor it engages with as required to protect customer’s personal data to the standard required by Data Protection Law. Customer may object to Databox’s appointment of or replacement Subprocessor, provided such objection is based on reasonable grounds related to data protection. In such event, Databox will either not appoint or replace the sub-processor or if that is not possible, Customer may suspend or terminate the specific Databox service at issue. A list of Databox’s current Subprocessors is provided on Appendix 3.
f. Databox shall make available to Customer all information necessary to demonstrate compliance with the obligations set forth in this DPA and, at Customer’s expense, allow for and contribute to audits, including inspections, conducted by the Customer or an independent third-party auditor mandated by the Customer. Any such audits or inspections shall be limited to one time in any rolling 12-month period unless ordered by a supervisory authority or other competent legal authority or upon the occurrence of a Personal Data Breach. If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third-party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and Databox confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
a. When either party becomes aware of an actual or threatened Personal Data Breach that impacts the processing of Customer Personal Data, it shall without undue notify the other about the Personal Data Breach and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a response in accordance with applicable law, and to take suitable further steps in respect of the incident.
b. Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about a Personal Data Breach. Where the incident is reasonably likely to require a data breach notification under applicable law, the party responsible for the Personal Data Breach shall notify the other without undue delay of having become aware of such Personal Data Breach.
c. Any notifications made under this section shall be made to compliance@databox.com (when made to Databox) and to our point of contact with you (when made to the Customer), and shall contain: (i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
a. Each party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the indemnified party and arising directly or indirectly out of or in connection with a breach of its obligations under this DPA or Data Protection Law.
a. This DPA is effective as of the date written above shall continue until it is changed or terminated in accordance with the ToS or so long as Databox continues to provide the Services to Customer.
b. Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
A. LIST OF PARTIES
Data exporter(s):
Name: Customer identified in the Agreement
Address: Customer’s address listed in the Agreement
Contact person’s name, position and contact details: Contact information provided in the Agreement
Activities relevant to the data transferred under these Clauses: To provide the Services to the Customer pursuant to the Agreement
Signature and date: Customer’s signature on the Agreement constitutes its signature for purposes of the Clauses.
Role: Controller
Data importer(s):
Name: Databox, Inc.
Address: 6 Liberty Square, PMB #471, Boston, MA 02109 USA
Activities relevant to the data transferred under these Clauses: To provide the Services to the Customer pursuant to the Agreement.
Signature and date: Databox’s signature on the Agreement constitutes its signature for the Clauses
Role: Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Categories of personal data transferred
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 specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
C. COMPETENT SUPERVISORY AUTHORITY
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The data importer’s implemented security measures are described in its Security Policy (https://databox.com/security-policy).
APPENDIX 3 TO THE STANDARD CONTRACTUAL CLAUSES
Databox’s Approved Subprocessors: