1.1 Purpose and Application. This document (“DPA”) is incorporated into the Agreement and forms part of a written (including in electronic form) contract between UPSTRIVE and Customer. This DPA applies to Personal Data processed by UPSTRIVE and its Subprocessors in connection with its provision of the Cloud Service. This DPA does not apply to non-production environments of the Cloud Service if such environments are made available by UPSTRIVE, and Customer shall not store Personal Data in such environments.
1.2 Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.
1.3 GDPR. UPSTRIVE and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For illustration purposes, Appendix 3 lists the relevant GDPR requirements and the corresponding sections in this DPA.
1.4 Governance. UPSTRIVE acts as a Processor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use UPSTRIVE as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Cloud Service. Where UPSTRIVE informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.
2.1 Appropriate Technical and Organizational Measures. UPSTRIVE has implemented and will apply the technical and organizational measures set forth in Appendix 2. Customer has reviewed such measures and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
2.2 Changes. UPSTRIVE applies the technical and organizational measures set forth in Appendix 2 to UPSTRIVE’s entire customer base hosted out of the same Data Center and receiving the same Cloud Service. UPSTRIVE may change the measures set out in Appendix 2 at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
3.1 Instructions from Customer. UPSTRIVE will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Cloud Service then constitutes further instructions. UPSTRIVE will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Cloud Service. If any of the before-mentioned exceptions apply, or UPSTRIVE otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, UPSTRIVE will immediately notify Customer (email permitted).
3.2 Processing on Legal Requirement. UPSTRIVE may also process Personal Data where required to do so by applicable law. In such a case, UPSTRIVE shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
3.3 Personnel. To process Personal Data, UPSTRIVE and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. UPSTRIVE and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
3.4 Cooperation. At Customer’s request, UPSTRIVE will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding UPSTRIVE’s processing of Personal Data or any Personal Data Breach. UPSTRIVE shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request without Customer’s further instructions, if applicable. UPSTRIVE shall provide functionality that supports Customer's ability to correct or remove Personal Data from the Cloud Service or restrict its processing in line with Data Protection Law. Where such functionality is not provided, UPSTRIVE will correct or remove any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
3.5 Personal Data Breach Notification. UPSTRIVE will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. UPSTRIVE may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by UPSTRIVE.
3.6 Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, UPSTRIVE will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties.
4.1 Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case UPSTRIVE and Customer will find a reasonable method to allow Customer access to Personal Data.
4.2 Deletion. Before the Subscription Term expires, Customer may use UPSTRIVE’s self-service export tools (as available) to perform a final export of Personal Data from the Cloud Service (which shall constitute a "return" of Personal Data). At the end of the Subscription Term, Customer hereby instructs UPSTRIVE to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable time period in line with Data Protection Law (not to exceed six months) unless applicable law requires retention.
5.1 Customer Audit. Customer or its independent third-party auditor reasonably acceptable to UPSTRIVE (which shall not include any third-party auditors who are either a competitor of UPSTRIVE or not suitably qualified or independent) may audit UPSTRIVE’s control environment and security practices relevant to Personal Data processed by UPSTRIVE only if:
(a) UPSTRIVE has not provided sufficient evidence of its compliance with the technical and organizational measures that protect the production systems of the Cloud Service through providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third-party auditor or UPSTRIVE;
(b) A Personal Data Breach has occurred;
(c) An audit is formally requested by Customer’s data protection authority; or
(d) Mandatory Data Protection Law provides Customer with a direct audit right and provided that Customer shall only audit once in any twelve-month period unless mandatory Data Protection Law requires more frequent audits.
5.2 Other Controller Audit. Any other Controller may audit UPSTRIVE’s control environment and security practices relevant to Personal Data processed by UPSTRIVE in line with Section 5.1 only if any of the cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by UPSTRIVE on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
5.3 Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the preliminary results of any audit to UPSTRIVE, with a two-week timeframe to have any issues rectified appropriately.
5.4 Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by UPSTRIVE of this DPA, then UPSTRIVE shall bear its own expenses of an audit. If an audit determines that UPSTRIVE has breached its obligations under the DPA, UPSTRIVE will promptly remedy the breach at its own cost.
6.1 Permitted Use. UPSTRIVE is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that: (a) UPSTRIVE on its behalf shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal Data. UPSTRIVE shall be liable for any breaches by the Subprocessors in accordance with the terms of this Agreement; (b) UPSTRIVE will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and (c) UPSTRIVE will make it available to Customer upon request, including the name, address and role of each Subprocessor UPSTRIVE uses to provide the Cloud Service.
6.2 New Subprocessors. UPSTRIVE’s use of Subprocessors is at its discretion, provided that: (a) UPSTRIVE will inform Customer in advance (by email or by posting on the support portal available through UPSTRIVE Support) of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and (b) Customer may object to such changes as set out in Section 6.3.
6.3 Objections to New Subprocessors.
(a) If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer shall inform UPSTRIVE within thirty days period from the date of UPSTRIVE notifying the customer of its decision. If the issue isn’t remedied within another thirty days, the customer may terminate the Agreement (limited to the Cloud Service for which the new Subprocessor is intended to be used) on written notice to UPSTRIVE. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of UPSTRIVE’s notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty-day period, Customer is deemed to have accepted the new Subprocessor.
(b) Within the thirty-day period from the date of UPSTRIVE’s notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect UPSTRIVE’s right to use the new Subprocessor(s) after the thirty-day period.
(c) Any termination under this Section 6.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
6.4 Emergency Replacement. UPSTRIVE may replace a Subprocessor without advance notice where the reason for the change is outside of UPSTRIVE’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, UPSTRIVE will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.
7.1 Conditions for International Processing. UPSTRIVE shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
7.2 Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses, then:
(a) UPSTRIVE and Customer enter into the Standard Contractual Clauses;
(b) Customer enters into the Standard Contractual Clauses with each relevant Subprocessor as follows, either (i) Customer joins the Standard Contractual Clauses entered into by UPSTRIVE or UPSTRIVE SE and the Subprocessor as an independent owner of rights and obligations ("Accession Model") or, (ii) the Subprocessor (represented by UPSTRIVE) enters into the Standard Contractual Clauses with Customer ("Power of Attorney Model"). The Power of Attorney Model shall apply if and when UPSTRIVE has expressly confirmed that a Subprocessor is eligible for it through the Subprocessor list provided under Section 6.1(c), or a notice to Customer; and/or
(c) Other Controllers whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses with UPSTRIVE and/or the relevant Subprocessors in the same manner as Customer in accordance with Sections 7.2 (a) and (b) above. In such case, Customer will enter into the Standard Contractual Clauses on behalf of the other Controllers.
7.3 Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.
7.4 Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the law of the country in which the relevant Controller is incorporated.
Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), in order to enable the other party to comply with any obligations relating to maintaining records of processing.
9.1 Optional Service. EU Access is an optional service that may be offered by UPSTRIVE. UPSTRIVE shall provide the Cloud Service eligible for EU Access solely for production instances in accordance with this Section 9. Where EU Access is not expressly specified and agreed in the Order Form, this Section 9 shall not apply.
9.2 EU Access. UPSTRIVE will use only European Subprocessors to provide support requiring access to Personal Data in the Cloud Service and UPSTRIVE shall not export Personal Data outside of the EEA or Switzerland unless expressly authorized by Customer in writing (e-mail permitted) on a case-by-case basis; or as excluded under Section 9.4.
9.3 Data Center Location. Upon the effective date of the Agreement, the Data Centers used to host Personal Data in the Cloud Service are located in the EEA with Amazon AWS. UPSTRIVE will not migrate the Customer instance to a Data Center outside the EEA or Switzerland without Customer’s prior written consent (email permitted). If UPSTRIVE plans to migrate the Customer instance to a Data Center within the EEA or to Switzerland, UPSTRIVE will notify Customer in writing (email permitted) no later than thirty days before the planned migration.
9.4 Exclusions. The following Personal Data is not subject to 9.2 and 9.3:
(a) Contact details of the sender of a support ticket; and
(b) Any other Personal Data submitted by Customer when filing a support ticket. Customer may choose not to transmit Personal Data when filing a support ticket. If this data is necessary for the incident management process, Customer may choose to anonymize that Personal Data before any transmission of the incident message to UPSTRIVE.
10.1 “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; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to UPSTRIVE be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
10.2 “Data Center” means the location where the production instance of the Cloud Service is hosted for the Customer in its region
10.3 “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement (and includes, as far as it concerns the relationship between the parties regarding the processing of Personal Data by UPSTRIVE on behalf of Customer, the GDPR as a minimum standard, irrespective of whether the Personal Data is subject to GDPR or not).
10.4 “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
10.5 “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
10.6 “European Subprocessor” means a Subprocessor that is physically processing Personal Data in the EEA or Switzerland.
10.7 “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by Customer or its Authorized Users into or derived from their use of the Cloud Service, or (ii) supplied to or accessed by UPSTRIVE or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
10.8 “Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
10.9 “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.
10.10 “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply).
10.11 “Subprocessor” means UPSTRIVE Affiliates, UPSTRIVE SE, UPSTRIVE SE Affiliates and third parties engaged by UPSTRIVE, UPSTRIVE SE or UPSTRIVE SE’s Affiliates in connection with the Cloud Service and which process Personal Data in accordance with this DPA.
Appendix 1 to the DPA and, if applicable, the General Terms and Conditions
Additional Glossary Terms
Data Exporter
The Data Exporter is the Customer who subscribed to a Cloud Service that allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also use the Cloud Service, these other Controllers are also Data Exporters.
Data Subjects
Unless provided otherwise by the Data Exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, students, contractors, business partners or other individuals having Personal Data stored in the Cloud Service.
Data Categories
The transferred Personal Data concerns the following categories of data:
Customer determines the categories of data per Cloud Service subscribed. Customer can configure the data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, time zone, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service and may include bank account data, credit or debit card data.
Special Data Categories (if appropriate)
The transferred Personal Data concerns the following special categories of data: As set out in the Agreement (including the Order Form) if any.
Processing Operations / Purposes
The transferred Personal Data is subject to the following basic processing activities:
Appendix 2 to the DPA and, if applicable, the General terms and Conditions
Technical and Organizational Measures
The following sections define UPSTRIVE’s current technical and organizational measures. UPSTRIVE may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
Measures:
Measures:
UPSTRIVE has established a password policy that prohibits the sharing of passwords, governs responses to password disclosure, and requires passwords to be changed on a regular basis and default passwords to be altered. Personalized user IDs are assigned for authentication. All passwords must fulfill defined minimum requirements and are stored in encrypted form. In the case of domain passwords, the system forces a password change every six months in compliance with the requirements for complex passwords. Each computer has a password-protected screensaver.
1.3 Data Access Control. Persons entitled to use data processing systems gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.
Measures:
1.4 Data Transmission Control. Except as necessary for the provision of the Cloud Services in accordance with the Agreement, Personal Data must not be read, copied, modified or removed without authorization during transfer. Where data carriers are physically transported, adequate measures are implemented at UPSTRIVE to provide the agreed-upon service levels (for example, encryption and lead-lined containers).
Measures:
1.5 Data Input Control. It will be possible to retrospectively examine and establish whether and by whom Personal Data have been entered, modified or removed from UPSTRIVE data processing systems.
Measures:
1.6 Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a customer’s behalf) is processed solely in accordance with the Agreement and related instructions of the customer.
Measures:
1.7 Availability Control. Personal Data will be protected against accidental or unauthorized destruction or loss.
Measures:
1.8 Data Separation Control. Personal Data collected for different purposes can be processed separately.
Measures:
1.9 Data Integrity Control. Personal Data will remain intact, complete and current during processing activities.
Measures:
In particular, UPSTRIVE uses the following to implement the control and measure sections described above:
Appendix 3 to the DPA and, if applicable, the Standard Contractual Clauses
The following table sets out the relevant Articles of GDPR and corresponding terms of the DPA for illustration purposes only.
|
Article of GDPR |
Section of DPA |
Relevant Section in this document |
|
28(1) |
2 and Appendix 2 |
Security of Processing and Appendix 2, Technical and Organizational Measures. |
|
28(2), 28(3) (d) and 28 (4) |
6 |
SUBPROCESSORS |
|
28 (3) sentence 1 |
1.1 and Appendix 1, 1.2 Purpose and Application. |
Structure. |
|
28(3) (a) and 29 |
3.1 and 3.2 |
Instructions from Customer. Processing on Legal Requirement. |
|
28(3) (b) |
3.3 |
Personnel. |
|
28(3) (c) and 32 |
2 and Appendix 2 |
Security of Processing and Appendix 2, Technical and Organizational Measures. |
|
28(3) (e) |
3.4 |
Cooperation. |
|
28(3) (f) and 32- 36 |
2 and Appendix 2, 3.5, 3.6 |
Security of Processing and Appendix 2, Technical and Organizational Measures. Personal Data Breach Notification. Data Protection Impact Assessment. |
|
28(3) (g) |
4 |
Data export and Deletion |
|
28(3) (h) |
5 |
CERTIFICATIONS AND AUDITS |
|
28 (4) |
6 |
SUBPROCESSORS |
|
30 |
8 |
Documentation; Records of processing |
|
46(2) (c) |
7.2 |
Standard Contractual Clauses. |
