Data Processing Agreement
Effective starting: August 6, 2022
This Data Processing Agreement (“DPA“) forms part of the Agreement between the Parties about the provision of the viso.ai Cloud services between
You
(the “Customer” or “You” as defined in the Terms of Service)
and
Viso.ai AG
(the “Data Processor”, “viso.ai”, “we” or “us”)
(together the “Parties”)
WHEREAS
(A) The Customer acts as a Data Controller.
(B) The Customer has purchased certain Services from the Data Processor, which imply the processing of personal data by the Data Processor.
(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing, including 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).
(D) The Parties wish to lay down their rights and obligations.
THEREFORE, IT IS AGREED AS FOLLOWS:
- Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
1.1.1 “Agreement” means the principial agreement in place between the Parties about the provision of the Services, which consists of the Terms of Use and the related Order, or any prevailing individually signed commercial agreement;
1.1.2 “DPA” means this Data Processing Agreement and all Schedules;
1.1.3 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Principal Agreement;
1.1.4 “Contracted Processor” means a Subprocessor;
1.1.5 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.6 “EEA” means the European Economic Area;
1.1.7 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.8 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.9 “Data Transfer” means:
1.1.9.1 a transfer of Customer Personal Data from the Customer to a Contracted Processor; or
1.1.9.2 an onward transfer of Customer Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.10 “Services” means the viso.ai Cloud services and related services the Customer provides.
1.1.11 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Customer in connection with the DPA.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.2 Other defined terms used but not defined in this DPA, shall have the meaning given to them in the Agreement between the Parties.
- Processing of Customer Personal Data
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
2.1.2 not Process Customer Personal Data other than on the relevant Customer’s documented instructions.
2.2 The Customer instructs Processor to process Customer Personal Data in accordance with the Agreement.
- Processor Personnel
Processor shall take adequate measures to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
- Security
4.1 Taking into account the state of the art, and nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Processor shall take into account in particular the risks that are presented by Processing, in particular with regards to a potential Personal Data Breach.
- Subprocessing
5.1 Processor shall not appoint (or disclose any Customer Personal Data to) any Subprocessor unless required or authorized by the Customer.
5.2. A list of current Subprocessors can be found in the list of Subprocessors, which is made available by Processor and updated from time time. Processor will inform Customer about changes or additions to the Subprocessor list at least 30 days in advance.
5.3. If Controller objects to the use of a new or changed Subprocessor within 30 days after being noticed by Processor because Controller believes the Subprocessor does not meet the required data privacy standard to enable Procesor to comply with their obligations of the DPA, and if Controller and Processor cannot jointly find a solution how the provision of Services is possible without this new or changed Subprocessor, Controller shall have the right to terminate the Agreement.
5.4. Processor remains fully responsible and liable for their Subprocessors.
- Data Subject Rights
6.1 Taking into account the nature of the Processing, Processor shall support the Customer in implementing appropriate technical and organisational measures, for the fulfilment of the Customer’s obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Customer if it receives a request from a Data Subject under an applicable Data Protection Law in respect of Customer Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
- Personal Data Breach
7.1 Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall co-operate with the Customer and take reasonable commercial steps as directed by Customer to assist in the investigation, mitigation and remediation of such Personal Data Breach.
- Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of an applicable local Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
- Deletion or Return of Customer Personal Data
Processor shall promptly and in any event within 3 months of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data, except such deletion is technically not possible, or Customer Personal Data has to be retained in accordance with statutory data retention obligations and related back-up practices.
- Audit Rights
10.1 Subject to this section 10, Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Customer or an independent auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.
10.2 Information and audit rights of the Customer only arise under section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
- Data Transfer
The Processor may not transfer or authorize the transfer of Data to countries outside the EU, UK, Switzerland and/or the European Economic Area (EEA) without the prior written consent of the Customer. If personal data processed under this DPA is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise , or unless a country has been determined as offering an adequate level of data protection by the EU Commission on the basis of article 45 of Regulation (EU) 2016/679, rely on EU approved standard contractual clauses for the transfer of personal data or binding corporate rules (BCR).
.
- General Terms
12.1 Confidentiality. Each Party shall keep information it receives about the other Party and its business in connection with this DPA (“Confidential Information”) confidential in accordance with the confidentiality provisions of the Principal Agreement.
12.2 Notices. All notices and communications given under this DPA must be in writing and, sent by post or by email to the address or email.
IN WITNESS WHEREOF, this DPA is entered into with effect from the Effective Date of the Agreement.
This DPA is an integral part of the Agreement, and is binding between the Parties without requiring a separate signature of the parties.
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