This Data Processing Addendum (“DPA”) forms an integral part of the Agreement (“Main Agreement”) between INCRMNTAL Ltd. ("Company") and between Customer ("Customer"; each “Party” and together “Parties”) and applies to the extent that Company processes Personal Data on behalf of the Customer, in the course of its performance of its obligations under the Main Agreement.
If you are accepting this DPA on behalf of Customer, you warrant that: (a) you have full legal authority to bind Customer to this DPA; (b) you have read and understand this DPA; and (c) you agree, on behalf of Customer, to this DPA. If you do not have the legal authority to bind Customer, please do not accept this DPA.
All capitalized terms not defined herein shall have the meaning set forth in the Main Agreement.
1.1 "Approved Jurisdiction" means a member state of the European Economic Area, or other jurisdiction as may be approved as having adequate legal protections for data by the European Commission currently found here: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/adequacy-decisions_en.
1.2 "Data Protection Law" means, as applicable, any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of Personal Data, including the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, 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 (“GDPR”).
1.3 “Data Subject” means an individual to whom Personal Data relates.
1.4 "EEA" means those countries that are member of the European Economic Area.
1.5 “Permitted Purposes” mean any purposes in connection with Company performing its obligations under the Main Agreement.
1.6 "Security Incident" shall mean any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed. For the avoidance of doubt, any Personal Data Breach (as defined under the GDPR) will comprise a Security Incident.
1.7 “Security Measures” mean commercially reasonable security-related policies, standards, and practices commensurate with the size and complexity of Company’s business, the level of sensitivity of the data collected, handled and stored, and the nature of Company’s business activities.
1.8 "Standard Contractual Clauses" mean the standard contractual clauses for the transfer of personal data to third countries, as approved by the European Commission in Decision (EU) 2021/914 of 4 June 2021, or any set of clauses approved by the European Commission which amends, replaces or supersedes these;
1.9 “Sub-Processor(s)” mean any Affiliate, agent or assignee of Company that may process Personal Data pursuant to the terms of the Main Agreement, and any unaffiliated processor, vendors or service provider engaged by Company.
1.10 The terms "Business", “Controller”, "Personal Data", “Processor”, “Process”, and “Processing” shall have the meanings ascribed to them in the GDPR.
2. Application of this DPA
2.1 This DPA will only apply to the extent all of the following conditions are met:
(A) Company processes Personal Data that is made available by the Customer in connection with the Main Agreement (whether directly by the Customer or indirectly by a third party retained by and operating for the benefit of the Customer);
(B) The Data Protection Law apply to the processing of Personal Data.
2.2 This DPA will only apply to the services for which the Parties agreed to in the Main Agreement ("Services"), which incorporates the DPA by reference.
3. Parties' Roles
3.1 In respect of the Parties' rights and obligations under this DPA regarding the Personal Data, the Parties hereby acknowledge and agree that the Customer is the Controller or Processor and Company is a Processor or Sub-Processor, and accordingly:
(A) Company agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA;
(B) The Parties acknowledge that the Customer discloses Personal Data to Company only for the performance of the Services and that this constitutes a valid business purpose for the processing of such data.
3.2 If Customer is a Processor, Customer warrants to Company that Customer’s instructions and actions with respect to the Personal Data, including its appointment of Company as another Processor and concluding the Standard Contractual Clauses, have been authorized by the relevant controller.
3.1 Notwithstanding anything to the contrary in the DPA, Customer acknowledges that Company shall have the right to collect, use and disclose data:
(A) Collected in the context of providing the Services, for the purpose of the operation, support or use of its services for its legitimate business purposes, such as account management, technical support, troubleshooting, security, protecting against fraudulent or illegal activity, billing, and for the purpose of establishment/exercise and defense of legal claims.
(B) Collected in the context of using the Services, for the purpose of analytics, market research, product improvement and development, provided however that the foregoing shall be based solely on the processing of aggregated and/or anonymized information.
(C) Collected directly from any individuals in the context of surveys, interviews, testing or research activities, for the purpose of product improvement and/or development (including any feedback).
(D) Collected from the Customer's authorized representatives (e.g. employees) and/or authorized users, strictly for the purpose of administrating the business and/or contractual relationship with the Customer, including for billing, audit and recordkeeping purposes.
3.2 To the extent that any data referred under section 3.1 is considered as Personal Data, then Company shall be regarded as an independent Controller of such data under the Data Protection Laws.
4. Compliance with Laws
4.1 Each Party shall comply with its respective obligations under the Data Protection Law.
4.2 Company shall provide reasonable cooperation and assistance to Customer in relation to Company’s processing of Personal Data in order to allow Customer to comply with its obligations as a Data Controller under the Data Protection Law.
4.3 Company agrees to notify Customer promptly if it becomes unable to comply with the terms of this DPA and take reasonable and appropriate measures to remedy such non-compliance.
4.4 Throughout the duration of the DPA, Customer agrees and warrants that:
(A) Personal Data has been and will continue to be collected, processed and transferred by Customer in accordance with the relevant provisions of the Data Protection Law;
(B) Customer is solely responsible for determining the lawfulness of the data processing instructions it provides to Company and shall provide Company only instructions that are lawful under Data Protection Law;
(C) the processing of Personal Data by Company for the Permitted Purposes, as well as any instructions to Company in connection with the processing of the Personal Data (“Processing Instructions”), has been and will continue to be carried out in accordance with the relevant provisions of the Data Protection Law; and that
(D) The Customer has informed Data Subjects of the processing and transfer of Personal Data pursuant to the DPA and obtained the relevant consents or lawful grounds thereto (including without limitation any consent required in order to comply with the Processing Instructions and the Permitted Purposes).
5. Processing Purpose and Instructions
5.1 The subject matter of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects, shall be as set out in the attached Annex 1, which is incorporated herein by reference.
5.2 Company shall process Personal Data only for the Permitted Purposes and in accordance with Customer’s written Processing Instructions (unless waived in a written requirement), the Main Agreement and the Data Protection Law, unless Company is otherwise required to do so by law to which it is subject (and in such a case, Company shall inform Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest).
5.3 To the extent that any Processing Instructions may result in the Processing of any Personal Data outside the scope of the Main Agreement and/or the Permitted Purposes, then such Processing will require prior written agreement between Company and Customer, which may include any additional fees that may be payable by Customer to Company for carrying out such Processing Instructions. Company shall immediately inform Customer if, in Company’s opinion, an instruction is in violation of Data Protection Law.
5.4 Additional instructions of the Customer outside the scope of the Main Agreement require prior and separate agreement between Customer and Company, including agreement on additional fees (if any) payable to Company for executing such instructions.
6. Reasonable Security and Safeguards
6.1 Company represents, warrants, and agrees to use Security Measures (i) to protect the availability, confidentiality, and integrity of any Personal Data collected, accessed or processed by Company in connection with this Agreement, and (ii) to protect such data from Security Incidents.
6.2 The Security Measures are subject to technical progress and development and Company may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the services procured by Customer.
6.3 Company shall take reasonable steps to ensure the reliability of its staff and any other person acting under its supervision who has access to and processes Personal Data. Company shall ensure that persons authorized to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7. Security Incidents
7.1 Upon becoming aware of a Security Incident, Company will notify Customer without undue delay and will provide information relating to the Security Incident as reasonably requested by Customer. Company will use reasonable endeavors to assist Customer in mitigating, where possible, the adverse effects of any Security Incident.
8. Security Assessments and Audits
8.1 Company audits its compliance with data protection and information security standards on a regular basis. Such audits are conducted by Company’s internal audit team or by third party auditors engaged by Company, and will result in the generation of an audit report (“Report”), which will be Company’s confidential information.
8.2 Company shall, upon reasonable and written notice and subject to obligations of confidentiality, allow its data processing procedures and documentation to be inspected, no more than once a year and in normal business hours, by Customer (or its designee), at Customer's expense, in order to ascertain compliance with this DPA. Company shall cooperate in good faith with audit requests by providing access to relevant knowledgeable personnel and documentation.
8.3 At Customer’s written request, and subject to obligations of confidentiality, Company may satisfy the requirements set out in this section by providing Customer with a copy of the Report so that Customer can reasonably verify Company’s compliance with its obligations under this DPA. If Customer wishes to change this instruction regarding the audit, then Customer has the right to request a change to this instruction by sending Company written notice. If Company declines to follow any instruction requested by Customer regarding audits or inspections, Customer is entitled to terminate this DPA and the Main Agreement.
9. Cooperation and Assistance
9.1 If Company receives any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Main Agreement, including requests from individuals seeking to exercise their rights under GDPR, Company will promptly redirect the request to Customer. Company will not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Company is required to respond to such a request, Company will promptly notify Customer and provide Customer with a copy of the request, unless legally prohibited from doing so. The Customer is responsible for verifying that the requestor is the data subject whose information is being sought. Company bears no responsibility for information provided in good faith to Customer in reliance on this subsection.
9.2 If Company receives a legally binding request for the disclosure of Personal Data which is subject to this DPA, Company shall (to the extent legally permitted) notify Customer upon receipt of such order, demand, or request. It is hereby clarified however that if no such response is received from Customer within three (3) business days (or otherwise any shorter period as dictated by the relevant law or authority), Company shall be entitled to provide such information.
9.3 Notwithstanding the foregoing, Company will cooperate with Customer with respect to any action taken by it pursuant to such order, demand or request, including ensuring that confidential treatment will be accorded to such disclosed Personal Data. Customer shall cover all costs incurred by Company in connection with its provision of such assistance.
9.4 Upon reasonable notice, Company shall:
(A) Taking into account the nature of the processing, provide reasonable assistance to the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Customer’s obligation to respond to requests for exercising Data Subject's rights, at Customer’s expense;
(B) Provide reasonable assistance to the Customer in ensuring Customer’s compliance with its obligation to carry out data protection impact assessments or prior consultations with data protection authorities with respect to the processing of Personal Data, provided, however, that if such assistance entails material costs or expenses to Company, the Parties shall first come to agreement on Customer reimbursing Company for such costs and expenses.
9.5 Customer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing Company to carry out the audit described herein.
10. Use of Sub-Processors
10.1 Customer provides a general authorization to Company to appoint (and permit each Sub-Processor appointed in accordance with this Clause to appoint) Processors and/or Sub Processors in accordance with this Clause.
10.2 Company may continue to use those Processors and/or Sub Processors already engaged by Company as at the date of this Agreement, subject to Company, in each case as soon as practicable, meeting the obligations set out in this Clause.
10.3 Company can at any time appoint a new Processor and/or Sub-Processor provided that Customer is given ten (10) days' prior notice and the Customer does not legitimately object to such changes within that timeframe. Legitimate objections must contain reasonable and documented grounds relating to a Processor and/or Sub-Processor's non-compliance with Data Protection Law. If, in Company’s reasonable opinion, such objections are legitimate, Company shall either refrain from using such Processor and/or Sub-Processor in the context of the processing of Personal Data or shall notify Customer of its intention to continue to use the Processor and/or Sub-Processor. Where Company notifies Customer of its intention to continue to use the Processor and/or Sub-Processor in these circumstances, Customer may, by providing written notice to Company, terminate the Agreement immediately.
10.4 With respect to each Processor and/or sub-processor, Company shall ensure that the arrangement between Company and the Processor and/or Sub Processor is governed by a written contract including terms which offer at least the same level of protection as those set out in this Agreement and meet the requirements of article 28(3) of the GDPR;
10.5 Company will be responsible for any acts, errors or omissions by its Sub-Processors, which may cause Company to breach any of its obligations under this DPA.
10.6 Company will only disclose Personal Data to Sub-Processors for the specific purposes of carrying out the Services on Company's behalf.
11. Transfer of EEA resident Personal Data outside the EEA
11.1 Company may transfer Personal Data of residents of the EEA outside the EEA ("Transfer"), only subject to the following:
(A) The Transfer is necessary for the purpose of Company carrying out its obligations under the Main Agreement, or is required under applicable laws; and
(B) The Transfer is done: (i) to an Approved Jurisdiction, or (ii) subject to appropriate safeguards (for example, through the use of the Standard Contractual Clauses, or other applicable frameworks), or (iii) in accordance with any of the exceptions listed in the Data Protection Law (in which event Customer will inform Company which exception applies to each Transfer and will assume complete and sole liability to ensure that the exception applies).
11.2 With reference to Clause 9 and Clause 11(3) of the Standard Contractual Clauses (to the extent applicable), the Standard Contractual Clauses shall be governed by the law of the Member State in which the Data Importer is established.
12. Data Retention and Destruction
12.1 Company will only retain Personal Data for the duration of the Agreement or as required to perform its obligations under the Agreement, or has otherwise required to do so under applicable laws or regulations. Following expiration or termination of the Agreement, Company will delete or return to Customer all Personal Data in its possession as provided in the Agreement, except to the extent Company is required under applicable laws to retain the Personal Data. The terms of this DPA will continue to apply to such Personal Data. This section shall not apply to the activities that are the subject matter of section 3.1 herein.
12.2 Notwithstanding the foregoing, Company shall be entitled to retain Personal Data solely for the establishment or exercise of legal claims, and/or in aggregated and anonymized form, for whatever purpose.
13.1 Any claims brought under this DPA will be subject to the terms and conditions of the Main Agreement, including the exclusions and limitations set forth in the Main Agreement.
13.2 In the event of a conflict between the Main Agreement (or any document referred to therein) and this DPA, the provisions of this DPA shall prevail.
13.3 Changes. Company may change this DPA if the change is required to comply with Data Protection Law, a court order or guidance issued by a governmental regulator or agency, provided that such change does not: (i) seek to alter the categorization of the Company as the Data Processor; (ii) expand the scope of, or remove any restrictions on, either Party’s rights to use or otherwise process Personal Data; or (iii) have a material adverse impact on Customer, as reasonably determined by Company.
13.4 Notification of Changes. If Company intends to change this DPA under this section, and such change will have a material adverse impact on Customer, as reasonably determined by Company, then Company will use commercially reasonable efforts to inform Customer at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect.
Parties acknowledge that they have read and understood the terms of this DPA and agree to be legally bound by it:
ANNEX 1 TO DPA
This Annex forms an integral part of the DPA.
CATEGORIES OF DATA SUBJECTS:
Customer's end users.
CATEGORIES OF PERSONAL DATA:
The data types that may be processed when using the services:
• Technical Information: this refers to technical information related to an end user’s device or computer, such as: browser type, device type and model, CPU, system language, memory, OS version, WiFi status, time stamp and zone, device motion parameters and carrier.
• Technical Identifiers: this refers to various unique identifiers that generally only identify a computer, device, browser or Application. For example, IP address (which may also provide general location information), User agent, IDFA (identifier for advertisers), Android ID (in Android devices); Google Advertiser ID, Customer issued user ID and other similar unique identifiers.
• Contact Information: this refers to information submitted by the end users, such as name, email address and phone number.
PROCESSING OPERATIONS AND PURPOSES:
The purpose(s) of the processing are as necessary for the provision of the Services, pursuant to the Main Agreement.
The duration of the processing will be: until the earliest of (i) expiry/termination of the Main Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either Party performing its obligations under the Main Agreement (to the extent applicable).