Data Processing Agreement

This Data Processing Agreement ("DPA") reflects the parties’ agreement regarding the Processing of Personal Data by Us on Your behalf under the agreement between You and Us by which You access the Services (the "Agreement").
This DPA is supplemental to, and forms an integral part of, the Agreement, and is effective upon its incorporation into the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
The term of this DPA will follow the term of the Agreement. Terms not otherwise defined in this DPA will have the meaning as set forth in the Agreement.
  1. Definitions
    1. "Approved Country" means a country, such as the countries within the European Economic Area, that has a data localization requirement requiring that Personal Data must either remain within that country’s territory or satisfy certain requirements before the Personal Data can be transferred to a third country.
    2. "California Personal Information" means Personal Data that is subject to the protection of the CCPA.
    3. "Consumer," "Business," "Sell" and "Service Provider" will have the meanings given to them in the CCPA.
    4. "Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
    5. "Data Protection Laws" means all worldwide laws and regulations relating to the processing or protection of Personal Information applicable to Us or You, including without limitation European Data Protection Laws, PIPEDA, Lei Geral de Proteção de Dados (Brazil’s General Data Protection Law), and the CCPA.
    6. "Data Subject" means the individual to whom Personal Data relates.
    7. "Data Subject Requests" has the meaning given to it in Section 4.1 of this DPA.
    8. "Europe" means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom.
    9. "European Data" means Personal Data that is subject to the protection of European Data Protection Laws.
    10. "European Data Protection Laws" means data protection laws applicable in Europe, including: (i) 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) ("GDPR"); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) the UK Data Protection Act 2018 ("DPA 2018); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.
    11. "Instructions" means the written, documented instructions issued by a Controller to a Processor or Processor to Sub-Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
    12. "Permitted Affiliates" means any of Your affiliates that (i) are permitted to use Your Data pursuant to the Agreement, but have not signed their own separate agreement with Us and are not an Authorized User as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by You, and (iii) are subject to European Data Protection Laws.
    13. "Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by Us and/or Our Sub-Processors in connection with this Agreement. "Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
    14. "Personal Data" means information about an individual that (a) can be used to identify, contact, or locate that specific individual; (b) can be combined with other information that can be used to identify, contact or locate a specific individual; or (c) is defined as personal data or personal information under applicable Data Protection Laws.
    15. "Processing" means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms "Process", "Processes" and "Processed" will be construed accordingly.
    16. "Processor" means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
    17. "Security Measures" means the technical and organizational measures to protect Personal Data from Personal Data Breaches described in ANNEX 2 of this DPA.
    18. "Standard Contractual Clauses" means the standard contractual clauses for Processors approved by the European Commission; as may be amended, superseded or replaced.
    19. "Sub-Processor" means any Processor engaged by Us or Our affiliates to assist in fulfilling Our obligations with respect to the Agreement. Sub-Processors may include third parties or Our affiliates but will exclude any of Our employees or consultants.
  2. Your Obligations
    1. Compliance with Laws. Within the scope of the Agreement and in Your use of the Services, You will be responsible for complying with all requirements that apply to You under applicable Data Protection Laws with respect to Your Processing of Personal Data and the Instructions that You issue to Us. In particular, You acknowledge and agree that You will be solely responsible for: (i) the accuracy, quality, and legality of Your Data and any Personal Data that is contained therein; (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 You for marketing purposes); (iii) ensuring that You have the right to transfer or provide access to the Personal Data to Us for Processing in accordance with the Agreement (including this DPA); (iv) ensuring that Your 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, texts, and other electronic communication as well as any other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send electronic communications, and the format and content of such communications.
    2. Your Instructions. The parties agree that the Agreement (including this DPA), together with Your use of the Services in accordance with the Agreement, constitute Your complete and final instructions to Us regarding the Processing of Personal Data, and any additional instructions outside of the scope of the Instructions shall require prior written agreement between Us and You.
  3. Tekion Obligations
    1. Compliance with Instructions. We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of Your lawful Instructions, except where and to the extent otherwise required by applicable Law. We are not responsible for compliance with any Data Protection Laws applicable only to You or Your industry that are not generally applicable to Us.
    2. Conflict of Laws. If We become aware that We cannot Process Personal Data in accordance with Your Instructions due to a legal requirement under any applicable Law, We will (i) promptly notify You of that legal requirement to the extent permitted by the applicable Law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time You issue new Instructions. If this provision is invoked, We will not be liable to You under the Agreement for any failure to perform the applicable Services until You issue new lawful Instructions with regarding to the Processing. However, any amounts payable under the Agreement shall be equitably adjusted such that You are not required to pay any amounts for Services that You are not receiving.
    3. Security. We will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches as described in ANNEX 2 of this DPA. Notwithstanding any provision to the contrary, We may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.
    4. Confidentiality. We will take commercially reasonable steps to ensure that any personnel whom We authorize to Process Personal Data on Our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) and comply with the terms of this DPA.
    5. Personal Data Breaches. We will notify You without undue delay (and in no case later than twenty-four (24) hours) after We become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by You. Such notification shall at a minimum: (i) describe the nature of the Personal Data Breach, including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; (ii) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained; (iii) describe the likely consequences of the Personal Data Breach; and (iv) describe the measures taken or proposed to be taken by Us to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects. We shall take prompt steps to remedy the Personal Data Breach and mitigate, to the extent commercially practicable, any harmful effects, and shall take commercially reasonable steps to ensure that Our Sub-Processors co-operate with You and take such reasonable steps as are directed by You to assist in any subsequent investigation, litigation, provision of notices, and mitigation and remediation of each such Personal Data Breach.
    6. Deletion or Return of Personal Data. We will delete or return all Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of the Agreement in accordance with the procedures and timeframes set out in the Agreement, save that this requirement shall not apply to the extent We are required by applicable law to retain some or all of the Data, or to Data We have archived on back-up systems, which data We will securely isolate and protect from any further Processing and will delete at the earliest possible time (and no later than in accordance with Our deletion practices).
    7. Sub-processors. We will notify You prior to engaging any Sub-Processors to Process Personal Data on Your behalf unless You have provided prior written approval of such Sub-Processors, such consent will not be unreasonably withheld. We have currently appointed, and You have approved, as Sub-Processors the third parties listed in ANNEX 3 to this DPA.

      Where We engage Sub-Processors, We will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses) to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s acts or omissions with regard to data protection where the Sub-Processor acts on our Instructions.

  4. Data Subject Requests
    1. The Service provides You with a number of controls that You can use to retrieve, correct, delete or restrict Personal Data, which You can use to assist You in connection with Your obligations under Data Protection Laws, including Your obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws ("Data Subject Requests").

      To the extent that You are unable to independently address a Data Subject Request through the Service, then upon Your written request, we will provide reasonable assistance to You to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement.

    2. If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to Us, We will promptly inform You and will advise the Data Subject to submit their request to You. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.
  5. Data Transfers
    1. You acknowledge and agree that We may access and Process Personal Data on a global basis as necessary to provide the Service in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by Tekion Corp. in the United States and to other jurisdictions where Tekion Affiliates and Sub-Processors have operations. We will ensure that such transfers are made in compliance with the requirements of Data Protection Laws.
  6. Additional Provisions for European Data
    1. Scope of Section 6. This section shall apply only with respect to European Data.
    2. Roles of the Parties. When Processing European Data in accordance with Your Instructions, the parties acknowledge and agree that You are the Controller of European Data and We are the Processor.
    3. Notification and Objection to New Sub-Processors. We will notify You of any changes to Sub-Processors by updating ANNEX 3 to this DPA and will give You the opportunity to object to the engagement of the new Sub-Processor on reasonable grounds relating to the protection of Personal Data within thirty (30) days after updating ANNEX 3 to this DPA. If You notify Us of Your objection(s), the parties will discuss Your concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, We will, at our sole discretion, either not appoint the new Sub-Processor or permit you to suspend or terminate the Agreement in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by You prior to suspension or termination).
    4. Data Protection Impact Assessments and Consultation with Supervisory Authorities. To the extent that the required information is reasonably available to Us, We will provide reasonable assistance to You 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.
    5. Transfer Mechanisms for Data Transfers. We 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 We first take 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) (i) 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, (ii) to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws, (iii) 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 and which are incorporated in ANNEX 4.
    6. Demonstration of Compliance. We will make all information reasonably necessary to demonstrate compliance with this DPA available to You and allow for and contribute to audits, including inspections by You, no more than once a calendar year during regular business hours with reasonable advance notice to Us in order to assess compliance with this DPA. Any such audit is subject to Our reasonable confidentiality procedures, and You are responsible for all costs and fees related to such audit, including all reasonable costs and fees (including Our time spent) that We incur for the audit. Upon request, We will supply (on a confidential basis) a summary copy of its penetration testing report(s) to You so that You can verify Our compliance with this DPA. Further, at Your written request, We will provide written responses (on a confidential basis) to all reasonable requests for information made by You necessary to confirm Our compliance with this DPA, provided that You will not exercise this right more than once per calendar year. You acknowledge that the Services are hosted by Our data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001) and that Our systems are regularly tested by independent third-party penetration testing firms.
  7. Additional Provisions for California Personal Information
    1. Scope of Section 7. This section of the DPA will apply only with respect to California Personal Information.
    2. Roles of the Parties. When processing California Personal Information in accordance with Our Instructions, the parties acknowledge and agree that You are a Business and We are a Service Provider for the purposes of the CCPA.
    3. Responsibilities. The parties agree that We will Process California Personal Information as a Service Provider strictly for the Uses under the Agreement. You do not sell Personal Data to Us because we only use Your Data and any Personal Data contained within it for the purposes specified in the DPA.
  8. General Provisions
    1. Amendments. Notwithstanding anything else to the contrary in the Agreement and subject to section 12.15 of the Agreement, We reserve the right to make any updates and changes to this DPA at any time on not less than 30 days’ notice to You.
    2. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.
    3. Limitation of Liability. The limitations and exclusions of liability and indemnity obligations in the Agreement apply to each party under this DPA.
    4. Governing Law. This DPA will be governed by and construed in accordance with section 12 of the Agreement unless required otherwise by Data Protection Laws.

ANNEX 1

Scope of Processing

Processing Activities

This summary sets out details of the processing of Data under the DPA.

Nature and Purpose of ProcessingWe will Process Personal Data as necessary to provide the Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by You in Your use of the Services.
Duration of ProcessingSubject to the Deletion or Return of Personal Data Section of this DPA, We will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
Categories of Data SubjectsYou may submit Personal Data in the course of using the Service, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
  • Your customers
  • Your employees and contractors
  • Your business contacts
  • Your potential customers and prospects
  • Your suppliers
  • Your subcontractors
Types of Personal DataYou may submit Personal Data to the Services, the extent of which is determined and controlled by You in Your sole discretion, and which may include but is not limited to the following categories of Personal Data:
  • Demographic data (e.g., name and date of birth)
  • Contact Information (e.g., address, emails, telephone number)
  • Employment history
  • Financial History (e.g., credit report)
  • Employee performance information
  • Vehicle history (e.g., purchase data, insurance, vehicle service history)
  • Remuneration details (e.g., salary and benefits)
  • Payments information (e.g., bank account and credit card information)
  • Contact Preferences
  • Consumer Preferences (e.g., vehicle preferences)
  • Lifestyle Information
  • Information relating to complaints
  • Systems data (e.g., IP address)
  • Any other individual information that qualifies as Personal Data

Sensitive Personal Data:
  • Precise geolocation data
  • Government identifiers (e.g., social security number and driver’s license number)
  • Racial or ethnic information
  • Trade union membership
  • Biometric data (e.g., fingerprints, facial recognition data)
  • Consumer account and login information
Processing OperationsPersonal Data will be processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:
  • Storage and other Processing necessary to provide, maintain, and improve the Services provided to You; and/or
  • Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable Laws

ANNEX 2

Security Measures

Available upon request.

ANNEX 3

List of Subprocessors

Available upon request.

ANNEX 4

Standard Contractual Clauses

Available upon request.