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GDPR Data Processing Agreement

This Data Processing Agreement ("DPA") is an addendum to the Terms of Service between Software Tailor ("Software Tailor", "we", "us" or "our") and you, which incorporates our Privacy Policy by reference (collectively, the "Agreement"). Unless otherwise stated, or where the context requires, all capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

By accessing or using our website and services, or otherwise interacting with us, you are deemed to have read, understood and agreed to our Processing of your Personal Data as outlined in this DPA. You hereby acknowledge that you are entering into this DPA on behalf of yourself and, to the extent required under Data Protection Laws, in the name and on behalf of your Authorized Affiliates (as defined below).

The parties agree as follows:

  1. Definitions

"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.

"Authorized Affiliate" means any of your Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.

"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.

"Controller" means an entity that determines the purposes and means of the processing of Personal Data.

"Customer Data" means any data that Software Tailor and/or its Affiliates process on behalf of you in the course of providing the Services under the Agreement.

"Data Protection Laws" means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

"EU Data Protection Law" means Directive 95/46/EC 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 (the "Directive"), as transposed into domestic legislation of each EU Member State and. As amended, replaced or superseded from time to time, including by Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "GDPR") and laws implementing or supplementing the GDPR; and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).

"Personal Data" means any Customer Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Laws.

"Processor" means an entity that processes Personal Data on behalf of the Controller.

"Processing" has the meaning given to it in the GDPR and "process", "processes" and "processed" shall be interpreted accordingly.

"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

"Services" means the SoftwareTailor.com website and all content, services and products available at or through the SoftwareTailor.com website, including, but not limited to, the Software Tailor software and the SoftwareTailor.com hosted service.

"Sub-processor" means any Processor engaged by Software Tailor or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any Software Tailor Affiliate.

  1. Scope and Applicability of this DPA

2.1 This DPA applies where and only to the extent that Software Tailor processes Personal Data on your behalf in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.

2.2 Role of the Parties. As between you and Software Tailor, you are the Controller of Personal Data and Software Tailor shall process Personal Data only as a Processor on your behalf. Nothing in the Agreement or this DPA shall prevent Software Tailor from using or sharing any data that Software Tailor would otherwise collect and process independently of your use of the Services.

2.3 Customer Obligations. You agree that (i) you shall comply with your obligations as a Controller under Data Protection Laws in respect of your processing of Personal Data and any processing instructions it issues to Software Tailor; and (ii) you have provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Software Tailor to process Personal Data and provide the Services pursuant to the Agreement and this DPA.

2.4 Software Tailor Processing of Personal Data. As a Processor, Software Tailor shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by you to the extent they are consistent with the terms of this DPA and the Agreement and only in accordance with your documented lawful instructions. The parties agree that this DPA and the Agreement set out your complete and final instructions to Software Tailor in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between you and Software Tailor.

2.5 Nature of the Data. Software Tailor handles Customer Data provided by the you. Such Customer Data may contain special categories of data depending on how the Services are used by you. The Customer Data may be subject to the following processing activities: (i) storage and other processing necessary to provide, maintain and improve the Services; (ii) to provide customer and technical support; and (iii) disclosures as required by law or otherwise set forth in the Agreement.

2.6 Software Tailor Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), you hereby acknowledge that Software Tailor shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Data Protection Laws, Software Tailor is the Controller of such data and accordingly shall Process such data in compliance with Data Protection Laws.

  1. Sub-processors

3.1 Authorized Sub-processors. You hereby agree that Software Tailor may engage Sub-processors from time to time to process Personal Data on your behalf. The Sub-processors currently engaged by Software Tailor are listed in Annex A of this DPA.

3.2 Sub-processors' Obligations. Software Tailor shall: (i) enter into a written agreement with each Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Software Tailor to breach any of its obligations under this DPA.

3.3 Changes to Sub-processors. Software Tailor shall provide you with reasonable advance notice (for which an email shall constitute sufficient notice) if it appoints any additional Sub-processors or ceases to engage any existing Sub-processors.

3.4 Objection to Sub-processors. You may object in writing to Software Tailor's appointment of a new Sub-processor on reasonable grounds relating to Data Protection Laws by notifying Software Tailor promptly in writing within five (5) calendar days of receipt of Software Tailor's notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by Software Tailor without the use of the objected-to-new Sub-processor.

  1. Security

4.1 Security Measures. Taking into account the state of the art, the costs of implementation and the 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, Software Tailor shall implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, to protect Personal Data from Security Incidents, and to preserve the security and confidentiality of the Personal Data, in accordance with Software Tailor's security standards described in Annex B of this DPA ("Security Measures").

4.2 Confidentiality of Processing. Software Tailor shall ensure that any person who is authorized by Software Tailor to process Personal Data (including its employees, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

4.3 Security Incident Response. Upon becoming aware of a Security Incident, Software Tailor shall notify you without undue delay and shall provide sufficient information relating to the Security Incident as it becomes known or as is reasonably requested by you to allow you to meet any obligations to report to or inform any relevant third parties of the Security Incident under Data Protection Laws.

4.4 Updates to Security Measures. You hereby acknowledge that the Security Measures are subject to technical progress and development and that Software Tailor may update or modify the Security Measures from time to time without notifying you of the same provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

  1. Security Reports and Audits

5.1 Software Tailor shall maintain records of its security standards. Software Tailor shall further provide written responses (on a confidential basis) to all reasonable requests for information made by you, including responses to information security and audit questionnaires, that you (acting reasonably) consider necessary to confirm Software Tailor's compliance with this DPA, provided that you shall not exercise this right more than once per year.

  1. International Transfers

6.1 Processing Locations. Software Tailor stores and processes EU Data (defined below) in data centres located within and outside the European Union. All other Customer Data may be transferred and processed anywhere in the world where a Customer, its Affiliates and/or its Sub-processors maintain data processing operations. Software Tailor shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws. 

6.2 Transfer Mechanism: Notwithstanding Section 6.1, to the extent Software Tailor processes or transfers (directly or via onward transfer) Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom ("EU Data") in or to third countries, with a differing level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, the parties shall enter into Standard Contractual Clauses as annexed to the European Commission's Decision (EU) 2021/914 of 4 June 2021 and as may be amended, superseded or replaced from time to time ("SCCs"), and agree that having entered into SCCs with the recipients, Software Tailor shall be deemed to provide appropriate safeguards for such data. The Customer hereby authorises any transfer of EU Data to, or access to EU Data from, such destinations outside the EU subject to any of these measures having been taken.

  1. Return or Deletion of Data

7.1 Upon deactivation of the Services, all Personal Data shall be deleted promptly and in any event within x business days of deactivation of the Services, save that this requirement shall not apply to the extent Software Tailor is required by any applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data Software Tailor shall securely isolate and protect from any further processing, except to the extent required by applicable law.

  1. Cooperation

8.1 To the extent that you are unable to independently access the relevant Personal Data within the Services, Software Tailor shall (at your expense) taking into account the nature of the processing, provide reasonable cooperation to assist you by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to Software Tailor in relation to your Personal Data, Software Tailor shall not respond to such communication directly without your prior authorization, unless legally compelled to do so. If Software Tailor is required to respond to such a request, Software Tailor shall promptly notify your and provide it with a copy of the request unless legally prohibited from doing so.

8.2 To the extent Software Tailor is required under Data Protection Law, Software Tailor shall (at the Customer's expense) provide reasonably requested information regarding Software Tailor's processing of Personal Data under the Agreement to enable you to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

  1. Miscellaneous

9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

9.2 This DPA is a part of and incorporated into the Agreement so references to "Agreement" in the Agreement shall include this DPA.

9.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.

9.4 This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

Software Tailor