This CyberTwice Data Processing Agreement (“DPA”) reflects the Parties’ agreement with respect to the terms governing the Processing of Personal Data by CyberTwice on behalf of our Customers under the CyberTwice General Terms & Conditions or CyberTwice Subscription Agreement (the “Agreement”). This DPA is a supplement to, and forms an integral part of, the Agreement and is effective from January 1, 2018, the moment of incorporation into the Agreement, which may be specified in the Agreement, an Order or an executed amendment to the Agreement.
The main purpose of this addendum is to accommodate:
“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, hereafter also referred to as GDPR)”
for Customers located in the European Union or the European Economic Area to further provide adequate safeguards with respect to the data processed under the Agreement. Having said that, CyberTwice will take an integral approach and will apply all processes for all its Customers irrespective of the residency of the Customer.
In all cases, CyberTwice (“Processor”), or a third party acting on behalf of Processor, acts as the processor of Personal Data and Customer (“Controller”) remains the controller of Personal Data. It is recognized that Customer, is or might be processing information on behalf of Customer’s customers (“End-Customers”) in which case CyberTwice is a Sub-Processor, Customer is Processor and the End-Customer Controller. Within such a situation, it is deemed that Customer is acting towards CyberTwice on behalf of the Controller and all obligations are unchanged but transferred.
Terms not otherwise defined herein shall have the meaning as set forth in the Agreement.
3.1 - The main purpose of the CyberTwice Services is to allow Customers to Capture, Control, Communicate and Comply of data-streams for surveillance and communications purposes. Within the Comply a core functionality is that information (voice and data-communication streams, including associated meta-data) can be captured and stored from individuals, typically requiring Personal Data (also referred to as “Calling Data”) to initiate, receive and identify communication streams as part of the Customer Data. Parties acknowledge, that it is non-trivial to discern Personal Data within the Customer Data, as such any Customer Data will be treated by CyberTwice as Personal Data.
3.2 - Processor shall process Customer Data, which might include Personal Data, on behalf of Controller. Processing shall include such actions as may be specified in the Agreement and/or an Order.
3.3 - Within the scope of the Agreement, and provided CyberTwice performs its obligations under this Agreement, Controller shall be solely responsible and liable for complying with the statutory requirements relating to data protection, in particular regarding the transfer of Personal Data to the Processor and the Processing of Personal Data.
3.4 - Based on the responsibility of §3.3, Controller shall be entitled to demand, and Processor shall subsequently execute, the rectification, deletion, blocking and making available of Personal Data during and after the term of the Agreement in accordance with the further specifications of such agreement on return and deletion of personal data.
3.5 - The regulations of this DPA shall equally apply if testing or maintenance of automatic processes or of Processing equipment is performed on behalf of Controller, and access to Personal Data in such context cannot be excluded.
4.1 - Processor shall collect, process and use Customer Data, which might include Personal Data, only within the scope of Controller’s Instructions.
4.2 - If the Processor thinks or becomes aware that an Instruction of the Controller infringes any data protection provisions, it shall i) point this out to the Controller without delay; and ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as Controller issues new Instructions with which Processor is able to comply with. If this provision is invoked, we will not be liable to Customer under the Agreement for any failure to perform the applicable CyberTwice Services until such time as Controller issues new lawful Instructions regarding the Processing.
4.3 - Within Processor’s area of responsibility, Processor shall structure Processor’s internal organization to ensure compliance with the specific requirements of protecting Personal Data.
4.4 - Processor shall, taking into account the nature of Processing and insofar as this is reasonably possible take the appropriate technical and organizational measures to adequately protect Controller’s Customer data, which might include Personal Data, against misuse and loss in accordance with the requirements of the GDPR, or otherwise applicable Data Protection Laws. Such measures will ensure a level of security appropriate to the risk considering the state of the art and the costs of implementation, in view of the risk entailed by Personal Data Processing and the nature of the data to be protected. Such measures shall include, but not be limited to:
4.5 - CyberTwice Services are offered as a hosted service, but also partly as part of an on-premise installation or privately hosted solution (private cloud) . In case of partly on-premise installations or private cloud, the Customer has control over the physical access control (i) and also (partially) on the elements (ii) to (viii) referred to above. In these cases, CyberTwice can only serve as an advisor and ensure that on engagement the organizational measures are being adhered to.
4.6 - Upon Controller’s request, Processor shall provide a current Personal Data protection and security program covering Processing.
4.7 - Processor shall ensure that any personnel entrusted with Processing Controller’s Customer Data, which might include Personal Data, have undertaken to comply with the principle of data secrecy, which includes ensuring that persons authorized to process Personal Data have committed themselves to confidentiality, in accordance with GDPR and have been duly instructed on the protective regulations of the GDPR. The undertaking to secrecy and confidentiality shall continue after the termination of the above-entitled activities.
4.8 - The Processor shall appoint a Data Protection Officer, if this is legally required and, upon request of Controller, Processor shall notify to Controller of the contact details of the Data Protection Officer.
4.9 - Processor shall, without undue delay, inform Controller in case of a serious interruption of operations or violations by the Processor or persons employed by it, of any provision or obligation of this DPA to protect Customer Data, which might include Personal Data or of terms specified in this DPA.
4.10 - In such an event, Processor shall implement the measures necessary to secure the Customer Data, which might include Personal Data, and to mitigate potential adverse effects on the data subjects and shall agree upon the same with Controller without undue delay.
4.11 - Processor shall support Controller in fulfilling Controller’s disclosure obligations under GDPR (or a corresponding provision of the otherwise applicable Data Protection Laws). To the extent that the required information is reasonably available to Processor, and Controller does not otherwise have access to the required information, Processor will provide reasonable assistance to Controller with any data protection impact assessments and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by (European) Data Protection Laws.
4.12 - Controller shall retain title as to any carrier media provided to Processor as well as any copies or reproductions thereof. Processor shall store such media safely and protect them against unauthorized access by third parties.
4.13 - Processor shall, upon Controller’s request, provide to Controller all information on Controller’s Customer Data, which might include Personal Data, and information.
4.14 - Processor shall be obliged to securely delete any test and scrap material based on an Instruction issued by Controller on a case-by-case basis. Where Controller so decides, Processor shall hand over such material to Controller or store it on Controller’s.
4.15 - Processor shall be obliged to audit and verify the fulfillment of the above-entitled obligations and shall maintain adequate documentation of such verification.
5.1 - Controller and Processor shall be separately responsible for conforming with such statutory Data Protection Laws regulations as are applicable to them.
5.2 - Within the scope of the Agreement and in its use of the CyberTwice Services, the Controller will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.
5.3 - In particular but without prejudice to the generality of the stated under 2, Controller acknowledge and agrees that Controller will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring Controller has the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that Controllers Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the CyberTwice Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.
5.4 - Controller shall inform Processor without undue delay and comprehensively about any errors, irregularities, or if it is not able to comply with its responsibilities under this sub-section 3 or applicable Data Protection Laws on the Processing of Customer Data, which might include Personal Data, detected during verification of the results of such Processing.
5.5 - Controller shall be obliged to maintain the publicly available register or a corresponding provision of the applicable national data protection law, if any.
5.6 - Controller shall be responsible for fulfilling the duties to inform, both the Supervisory Authority and the Data Subject, as per the GDPR or a corresponding provision of the otherwise applicable national data protection law.
5.7 - Controller shall, upon termination or expiration of the Agreement and by way of issuing an Instruction, stipulate, within a period of time set by Processor, the reasonable measures to return data carrier media or to delete stored data.
5.9 - Any additional cost arising in connection with the return or deletion of Customer Data, which might include Personal Data, after the termination or expiration of the Agreement shall be borne by Controller.
5.10 - The parties agree that the Agreement (including this DPA), together with Customers use of the CyberTwice Services in accordance with the Agreement, constitute Controller’s complete and final Instructions to Processor in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between Parties.
6.1 - The CyberTwice Service provides Controller with several controls that Controller can use to retrieve, correct, delete or restrict Personal Data, which Controller can use to assist it in connection with its obligations under Data Protection Laws, including Controller’s obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”).
6.2 - Where Controller, based upon applicable data protection law, is obliged to provide information to an individual about the collection, processing or use of its Personal Data, and to the extent that Controller is reasonably unable to independently address a Data Subject Request through the CyberTwice Services, Processor shall assist Controller in making this information available, provided that:
6.3 - Where a Data Subject requests the Processor directly to correct or delete Personal Data, Processor shall refer such Data Subject to the Controller.
7.1 - Controller shall have the right, prior to the commencement of Processing, and/or at regular intervals thereafter, to audit the technical and organizational measures taken by Processor, and if done so shall document the resulting findings.
7.2 - For such purpose, Controller may, e.g.,
8.1 - Processor shall be entitled to subcontract Processor’s obligations defined in the Agreement to third parties only with Controller’s written consent.
8.2 - Controller consents to Processor’s subcontracting to Processor’s affiliated companies and third parties, as listed in Exhibit 1, of Processor’s contractual obligations hereunder.
8.3 - If the Processor intends to instruct Subcontractors other than those listed in Exhibit 1, the Processor must notify the Controller thereof in writing (email to the email address(es) on record in Processor’s account information for Controller is sufficient) and must give the Controller the possibility to provide written consent or object against the instruction of the Subcontractor within 30 days after being notified.
8.4 - Any objection must be based on reasonable grounds (e.g. if the Controller proves that significant risks for protecting its Personal Data exist at the Subcontractor). If the Processor and Controller are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party. Controller shall receive a refund of any prepaid but unused fees for the period following the effective termination date.
8.5 - Where Processor engages Subcontractors, Processor shall be obliged to pass on Processor’s contractual obligations hereunder (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processor, to such Subcontractors. This shall apply in particular, but shall not be limited to, the contractual requirements for confidentiality, data protection and data security stipulated between the parties of the Agreement.
8.6 - Where Processer engages Subcontractors, Processor shall be deemed to have performed any work or activity, actually performed by a Subcontractor, and remain responsible and liable for any work or activities performed by a Subcontractor as if Processor had provided the work or activities itself.
8.7 - Where a Subcontractor is used, the Controller must be granted the right to monitor and inspect the Subcontractor in accordance with this DPA (or in accordance with the corresponding provision of the otherwise applicable Data Protection Laws). This also includes the right of the Controller to obtain information from the Processor, upon written request, on the substance of the contract and the implementation of the data protection obligations within the subcontract relationship, where necessary by inspecting the relevant contract documents.
9.1 - Controller acknowledge and agree that Processor may access and Process Personal Data on a global basis as necessary to provide the CyberTwice Services in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by CyberTwice B.V. in the Netherlands and to other jurisdictions where CyberTwice Affiliates and Sub-Processors have operations. Processor will ensure such transfers are made in compliance with the requirements of Data Protection Laws.
9.2 - Processor shall not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, or to a recipient that has executed appropriate standard contractual clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.
9.3 - As a matter of transparency, Controller acknowledges that in connection with the performance of the CyberTwice Services, CyberTwice B.V. might transfer Customer Data, which may include Personal Data, to processors in other regions than the designated Data Centre Regions, as indicated in Exhibit A- List of Subcontractors.
9.4 - Parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled "FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC" the Controller (data exporter) may provide a general consent to onward sub-processing by the Processor.
9.5 - Accordingly, the Controller mandates the Processor to sign Model Clauses 2010/87/EU with their non-EEA-based sub-processors in the name and on behalf of the Controller. The latter remains the data exporter and the Sub-processor is the data importer under those terms. The Controller also agrees, in advance, to the content of Appendices 1 and 2 of Model Clauses 2010/87/EU.
10.1 - Where Controller’s Personal Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while being Processed, Processor shall inform Controller without undue delay.
10.2 - Processor shall, without undue delay, notify all pertinent parties in such action that any Personal Data affected thereby is in Controller’s sole property and area of responsibility, that Personal Data is at Controller’s sole disposition, and that Controller is the responsible body in the sense of the GDPR (or a corresponding provision of the otherwise applicable national data protection law).
10.3 - With respect to updates and changes to this DPA, the terms that apply in the ‘Amendment; No Waiver’ section of ‘GENERAL TERMS' in the Agreement shall apply.
10.4 - In case of any conflict, the regulations of this DPA shall take precedence over the regulations of the Agreement. Where individual regulations of this DPA are invalid or unenforceable, the validity and enforceability of the other regulations of this DPA shall not be affected.
10.5 - Controller will indemnify and hold harmless Processor against any and all claims from third parties, those of the data protection authority in particular resulting in any way from not complying with this guarantee.
10.6 - Processor guarantees that it will not use Customer Data, which might include Personal Data, which it Processes in the context of the Agreement for its own or third-party purposes without the Controller’s express written consent, unless legal provisions require the Processor to do so. In such cases Processor shall immediately inform Controller of that legal requirement before Processing, unless that law prohibits such information on import grounds of public interest.
10.7 - The legal entity agreeing to this DPA as Controller represents that it is authorized to agree to and enter into this DPA for, and is agreeing to this DPA solely on behalf of, the Controller
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1 In case of transfer of personal data to Sub-processors established in third countries, as indicated in the above table with SCC, under Directive 95/46/EC, CyberTwice has instituted the required security measures by means of a full data processing agreement, which includes the Standard Contractual Clauses as per article 9.5.