Data Processing Agreement
Effective Date: 29-Mar-2022
Last Updated on: 29-Mar-2022
This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between You and 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 this DPA forms an integral part of the Terms of Service available at https://www.spendflo.com/terms-conditions (the “Terms'') and is applicable where We are the Processors of Your Personal Data forming part of the Customer Data.
Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms.
In this DPA, the following terms shall have the following meanings:
“Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including but not limited to (a) laws and regulations applicable to the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (together, “UK Data Protection Laws”) (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) in each case, as may be amended, superseded or replaced.
“GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” shall mean any information relating to an identified or identifiable natural person as defined by the General Data Protection Regulation of the European Union ("GDPR" EC-2016/679) that is Processed by the Processor as part of providing the services to You.
“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.
“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EU SCCs”); (ii) where the UK GDPR applies, the applicable standard data protection clauses adopted pursuant to Article 46(2)(c), or (d) of the UK GDPR (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).
“Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws
“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.
2. Scope and Responsibilities
2.1 This DPA applies to Processing of Personal Data forming a part of the Customer Data.
2.2 We shall Process Personal 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.
2.3 Within the scope of the Terms, each party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.
3. Term and Termination
3.1 This DPA becomes effective upon You subscribing to the Service(s) by agreeing to the Terms. It shall continue to be in full force and effect as long as We are Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.
3.2 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 Terms in accordance with the termination procedure contained therein.
4. Processing Instructions
4.1 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.
4.2 For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties and, where applicable, shall be subject to the contract change procedure under the respective agreement.
4.3 We shall without undue delay inform You in writing if, in Our opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.
5. Processor Personnel
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.
6. Disclosure to Third Parties; Data Subjects Rights
6.1 We will not disclose Personal Data to any government agency, court, or law enforcement except with Your written consent or as necessary to comply with applicable mandatory laws. If We are obliged to disclose Personal Data to a law enforcement agency, We agree to give You reasonable notice of the access request prior to granting such access, to allow You to seek a protective order or other appropriate remedy. If such notice is legally prohibited, We will take reasonable measures to protect the Personal Data from undue disclosure as if it were Our own confidential information being requested and shall inform You promptly as soon as possible if and when such legal prohibition ceases to apply.
6.2 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 where instructed by You.
6.3 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.
7. Technical and Organizational Measures
7.1 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 shall include the measures set out in Schedule B.
8. Assistance with Data Protection Impact Assessment
8.1 Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, 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, where required, unless the requested information or assistance is not pertaining to Our obligations under this DPA.
8.2 You shall pay Us reasonable charges for providing the assistance in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the services.
9. Information Rights and Audit
9.1 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.
9.2 We shall, upon reasonable notice, allow for and contribute to audits of Our Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to Our business operations. Such audits shall be conducted by You, Your affiliates or an independent third party on Your behalf (which will not be a competitor of Our business) that is subject to reasonable confidentiality obligations.
9.3 You shall pay Us reasonable costs of allowing or contributing to audits or inspections in accordance with clause 9.2 where You wish to conduct more than one audit or inspection every twelve (12) months. We will immediately refer to You any requests received from national data protection authorities that relate to Our Processing of Personal Data.
9.4 We undertake to reasonably cooperate with You in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.
10. Personal Data Breach Notification
In respect of any Personal Data Breach (actual or reasonably suspected), We shall:
10.1 notify You of a Personal Data Breach involving Us or a sub-processor without undue delay and it shall be Your responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by Us;
10.2 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.
11.1 We have Your general authorisation for the engagement of third-party sub-processors from an agreed list, as set forth in Schedule A. We will notify Your Account administrator of any intended changes to that list through the appointment or replacement of any sub-processor at least fifteen (15) days in advance. You may object to Our appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, We will either not appoint or replace the sub-processor or, if this is not possible, You or We may suspend or terminate the Service(s) (without prejudice to any fees incurred by You prior to such suspension or termination).
11.2 Where We, with Your authorisation, engage a sub-processor, We shall do so only by way of a binding written contract which imposes on the sub-processor essentially the same data protection obligations as the ones imposed Us under this DPA and in accordance with Art. 28 of the GDPR.
11.3 Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, We shall remain fully liable to You for the fulfilment of Our obligations under this DPA and for the performance of the sub-processor 's obligations.
12. International Data Transfers
12.1 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 EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:
i. Module 2 (Controller to Processor) shall apply where You are a Controller and We are a Processor. Module 3 (Processor to Processor) shall apply where You are a Processor and We are a sub-processor;
ii. in Clause 7, the optional docking clause will apply;
iii. in Clause 11, the optional language will not apply;
iv. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
v. in Clause 18(b), disputes shall be resolved before the courts of Ireland;
yi. Annex I of the EU SCCs shall be deemed completed with the information set out in Schedule A to this Agreement; and
vii. Annex II of the EU 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 UK or Switzerland and subject to the UK GDPR or Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications:
i. references to Regulation (EU) 2016/679; shall be interpreted as references to UK Data Protection Laws or the Swiss DPA (as applicable);
ii. references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent article or section of UK Data Protection Laws or the Swiss DPA (as applicable);
iii. references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “UK”, “Switzerland”, “UK law”; or “Swiss law” (as applicable);
iv. the term “member state” shall not be interpreted in such a way as to exclude data subjects in the UK or Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., the UK or Switzerland);
v. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the UK Information Commissioner or Swiss Federal Data Protection Information Commissioner (as applicable);
vi. references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Information Commissioner” and the “courts of England and Wales” or the “Swiss Federal Data Protection In- formation Commissioner” and “applicable courts of Switzerland” (as applicable);
vii. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of England and Wales or Switzerland (as applicable); and
viii. with respect to transfers to which UK Data Protection Laws apply, Clause 18 shall be amended to state “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may bring legal proceeding 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”, and with respect to transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
c. To the extent that and for so long as the EU SCCs as implemented in accordance with sub-paragraph (a) and (b) above cannot be used to lawfully transfer Personal Data in accordance with the UK GDPR to the Data Importer, the UK SCCs shall be incorporated into and form an integral part of this Agreement and shall apply to transfers governed by the UK GDPR. For the purposes of the UK SCCs, the relevant annexes, appendices or tables shall be deemed populated with the information set out in Schedules A and B of this Agreement.
12.2 For the purposes of descriptions in the SCCs and the UK SCCs, You agree that You are the “data exporter” and We are the “data importer”.
12.3 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.
13. Deletion or Return of Personal Data
Upon termination of Your Account, We may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Terms. 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.
14.1 In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with Us.
14.2 No party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
14.3 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.
14.4 Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
14.5 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:
A. LIST OF PARTIES UNDER THE SCCS
The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.
Signature & Date: By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role: Controller or Processor
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
- Name: Spendflo, Inc.
Address: 1082 South Vann Ness Avenue, San Francisco, California – 94110
Contact person’s name, position and contact details:
Name: Ajay Vardhan
Contact: +91 9962555432
Activities relevant to the data transferred under these Clauses: As specified under Part B.
Signature & Date: By entering into the Agreement, Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Role: Processor or sub-processor
B. 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: employees, contractors, business partners, customers or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.
Categories of personal data transferred
The transferred Personal Data concerns the following categories of data:
The data exporter determines the categories of Personal Data which could be transferred per the Service(s) as stated in the Terms of Service. Such categories may include the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorized personnel and may include financial data such as bank account data, credit or debit card data.
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 Data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Data 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
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 access and use by the data exporter of the Service(s) so that the data importer may provide, support, maintain and improve the Service(s).
The data importer may further transfer Personal Data to third-party service providers that host and maintain the applications, backup, storage, payment processing, 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 13 of the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
C. 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 ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational measures must be described in specific (and not generic) terms and need to clearly indicate which measures apply to each transfer/set of transfers.
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
Measures for user identification and authorisation
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring physical security of locations at which personal data are processed
Measures for ensuring events logging
Measures for ensuring system configuration, including default configuration
Measures for internal IT and IT security governance and management
Measures for certification/assurance of processes and products
Measures for ensuring data minimisation
Measures for ensuring data quality
Measures for ensuring limited data retention
Measures for ensuring accountability
Measures for allowing data portability and ensuring erasure
LIST OF SUB-PROCESSORS