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Data Processing Agreement

1. Subject matter of the DPA

  1. The DPA is concluded between the Customer (“the Customer”) and Magicsheets Ltd., (company number 13459589), 71-75 Shelton Street, London, Greater London, WC2H 9JQ, United Kingdom, (“the Processor” or “the Supplier”) in relation to the services provided by the Supplier to the Customer based on the Terms of Service agreement (“Main Agreement”) and for the purposes of its performance. The personal data processing in connection with the performance of the Main Agreement is subject to Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (“GDPR”) and other applicable law in the field of data protection law (“Data Protection Legislation”).
  2. The Parties acknowledge and agree that the Supplier is a Data Processor of Customer Personal Data listed in Appendix 1, whereas the Customer subscribing to Supplier’s services may be a Data Controller or Data Processor, as applicable, of Customer Personal Data. Each Party will comply with the obligations applicable to it under the Data Protection Legislation with respect to the Processing of that Customer Personal Data.
  3. Under the DPA, the Controller instructs the Processor to process personal data described in Appendix A to the DPA (“Personal Data”). The DPA may be update by the Processor from time to time. Any such change shall be made in writing, including electronic form, and notified to the Customer.
  4. The Processor processes Personal Data solely for the purpose of performing the Main Agreement, to the extent necessary to perform it and only during its term.
  5. The Processor is obliged to process Personal Data in accordance with the GDPR and Data Protection Legislation.

2. Obligations of the parties

  1. The Processor is obliged to: 1. apply all technical and organizational measures adequate to the risk level securing the Personal Data in accordance with the principles specified in Article 32 of the GDPR; the security measures applied by the Processor are indicated in Appendix B whereas those applied by Processor’s Subprocessor are indicated in appendix C. The Customer hereby confirms that those security measures are appropriate to the risks identified by the Customer; 2. assist the Controller in fulfilling the obligations set forth in Articles 32–36 of the GDPR, while taking into account the nature of processing and information available to the Processor; 3. process the Personal Data only on documented instructions from the Customer unless required to do so by the applicable EU or local law; in such a case, the Processor informs the Customer of such a legal requirement before processing, unless that law prohibits such information on important grounds of public interest; 4. assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the obligation to respond to requests for exercising the Data Subject’s rights laid down in Chapter III of the GDPR; 5. ensure that persons authorized to process the Personal Data have committed themselves to confidentiality, unless they are obliged to do so under an appropriate statutory obligation of confidentiality; 6. to ensure that each and every person who processes Personal Data on its behalf processes them only at the Customer’s instructions.
  2. Upon expiry of the DPA, Customer instructs the Processor to delete all Customer Data (including existing copies) from the Processor’s Systems in accordance with applicable Data Protection Law. Processor will comply with this instruction as soon as reasonably practicable and within a maximum period of 90 days, unless EU or EU Member State law requires or justifies that such Personal Data be retained by Processor for a longer period of time
  3. The Processor is entitled to entrust the processing of Personal Data to further processing entities (“Sub-processors”), a list of which is provided in Appendix C to the DPA and may be updated from time to time. The Processor will inform the Controller of any intended change in the list of Sub-processors via e-mail notification. The Customer may object to such a change within the next 7 days. The Customer’s objection shall be deemed as termination of the Agreement. Upon termination of the Agreement, the Customer shall no longer be entitled to use the Services in order to process personal data. The Customer shall still be enetitled to use the Services to process non-personal data, to the extent permissible under the law.
  4. The Processor will provide the Controller with the information necessary for the performance of its duties related to the processing of Personal Data. The Processor will enable the Controller to carry out audits, including inspections, within the time agreed by the Parties, as regards processing of Personal Data by the Processor and will ensure cooperation in this respect. Each Party will incur its own costs of the audit, regardless of its result.

3. Data transfer

  1. The Processor will transfer Personal Data outside the EEA, unless it obtains Controller’s explicit permit in this respect, which the Controller will not unreasonably withhold, and such transfer will be effected in accordance with the respective provisions of the GDPR. In any event, the transfer will be effected solely for the purpose of performing the Main Agreement.
  2. Customer acknowledges and agrees that Supplier may, store and process Customer Data outside the EEA. In such case, Supplier and Customer hereby agree to enter into the Standard Contractual Clauses enclosed in Appendix D and any Transfers are made in accordance with such Standard Contractual Clauses. Supplier will impose under a written agreement the same obligations on the Subprocessors, if any, as are imposed on the Processor under this DPA and the Standard Contractual Clauses. In addition, where provision of the Services involves a data transfer from the Supplier to a Subprocessor located outside EU, Customer mandates Supplier, which mandate Supplier hereby accepts, to promptly enter, on Customer’s own name and behalf as Data Exporter (Subprocessor being the Data Importer), into a Personal Data processing agreement with any Subprocessor engaged by Supplier in such Transfer, before such Subprocessor first Processes the Personal Data, so as to ensure that any such transfer complies with the Data Protection Legislation.

4. Liability

  1. Irrespective of the provisions of the Main Agreement, the Processor’s liability related to the processing of Personal Data under the DPA is limited to the total amount paid to the Supplier based on the Main Agreement, unless the mandatory provisions of the applicable law provide for otherwise.

5. Miscellaneous

  1. The DPA is concluded for the term of the Main Agreement’s duration.
  2. Any amendments to this DPA will be made in writing, including electronic form.
  3. The DPA is subject to the law applicable to the Main Agreement. Any disputes related to the DPA will be resolved by a court of jurisdiction in accordance with the Main Agreement.
  4. The appendices to this DPA constitute an integral part hereof. List of appendices: 1. Appendix A – Personal Data; 2. Appendix B – Security measures 3. Appendix C – List of Sub-processors. 4. Appendix D – Standard contractual clauses  

APPENDIX A

Scope of entrusting Personal Data

  1. Nature and purpose of the processing: the data shall be processed for the purposes of the Services, namely providing analytical predictions based on users’ data as well as for the purpose of providing a better product experience.
  2. Categories of data subjects: Customer’s clients, end users, employees
  3. Type of personal data: any personal data (including special categories of data, depending on the Customer’s decision) entered into the Services by the Customer, in particular, the data may include sales data, data on purchasing decisions, data on time and nature of online orders, end user and customer demographic data, etc.

APPENDIX B

Security measures

  1. Security measures undertaken by the Processor include, in particular:
    • applying necessary procedures regarding personal data protection
    • regular testing of the security of the service
    • encryption of personal data
  2. Data entered into the Services by the Customer is protected by security measures of Google Cloud while in the spreadsheet, and by that of Amazon Web Services while being processed. Both Google Cloud and Amazon Web Services apply highest standards of security to their services. Data Processing Agrement for both Google Cloud and Amazon Web Services are detailed in Appendix C.

APPENDIX C

List of Sub-processors

  1. Amazon Web Services (“AWS”) AWS Data Service Terms and specifically the Data Processing Agreement. AWS customer agreement.
  2. Google Cloud (“GoogleSheets”) Google Cloud’s Data Processing Agreement.

APPENDIX D

Standard Contractual Clauses

STANDARD CONTRACTUAL CLAUSES (PROCESSORS) Data exporter: the Customer, as defined above in the DPA (the data exporter) And Magicsheets Ltd. (the data importer) each a ‘party’; together ‘the parties’, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1: Definitions

For the purposes of the Clauses:

  1. ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  2. the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
  4. ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2: Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3: Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4: Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
  2. that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
  5. that it will ensure compliance with the security measures;
  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
  7. to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5: Obligations of the data importer

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:
  5. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
  6. any accidental or unauthorised access; and
  7. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  8. to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
  9. at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
  10. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
  11. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
  12. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
  13. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

Clause 6: Liability

  1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7: Mediation and jurisdiction

  1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
  2. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; to refer the dispute to the courts in the Member State in which the data exporter is established.
  3. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8: Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
  3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

Clause 9: Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10: Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11: Sub-processing

  1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely …
  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12: Obligation after the termination of personal data-processing services

  1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
  2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.