Data Processing Agreement (DPA)
Last edited December 20th, 2021
This DPA is entered into between Smint.io GmbH (Smint.io, we, us or our; the Data Processor) and you (”Customer”, ”you”, your, yours, user; the Data Controller) and is governed by the terms of the Smint.io Cloud Service Agreement.
Any capitalized term not defined in this section shall have the meaning given to it in the context.
Agreement means the Cloud Service Agreement or other agreement between You and us for the provision of Services;
Authorized Affiliate means Your Affiliate(s) who are permitted to use the Services pursuant to the terms of the Agreement, but who have not signed the Agreement or an Order Document;
Controller means You or 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;
Customer Data means all files, content, metadata, Personal Data, Confidential Information, and any other data stored or processed via the Services as requested by you as the Controller.
Data Subject shall have the same meaning as in Data Protection Laws or under any equivalent data protection regulation of applicable law. Without limiting the foregoing, Data Subject essentially means a natural person who is the subject of Personal Data.
Data Protection Laws
Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, the European Economic Area, their member states, the United Kingdom and Switzerland; any amendments, replacements, or renewals thereof, applicable to the processing of Personal Data, including where applicable the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.), (EU Exit) Regulations 2020, the EU GDPR, the Swiss FADP, the UK GDPR and any applicable national laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);
DPA means this data processing agreement together with its Appendices 1 and 2;
Effective Date means date on which you entered into the Agreement;
EU GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016;
Personal Data shall have the same meaning as in Data Protection Laws or under any equivalent data protection regulation of applicable law. Without limiting the foregoing, Personal Data means any information that could be used to identify a natural person, directly or indirectly, in particular by reference to a name or personal identification number, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person. Personal Data is considered to be Confidential Information;
Processor means us or a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller;
Services means the Smint.io Cloud Service, Technical Support or any Professional Services provided by us to You and Authorized Affiliates;
Standard Contractual Clauses (SCC)
Standard Contractual Clauses means the EU model clauses for personal data transfer from controllers to processors and third countries as per c2010-593 – Decision 2010/87 EU;
We have agreed to provide Services to you in accordance with the terms of the Agreement. In providing Services, we may process Customer Data on behalf of you. Customer Data may include Personal Data. From the Effective Date, we will process and protect such Customer Data in accordance with the terms of this DPA for the term of the Agreement.
In providing Services to you pursuant to the terms of the Agreement, we shall process Customer Data only to the extent necessary to provide Services in accordance with both the terms of the Agreement and your instructions documented in the Agreement and this DPA, as may be updated from time to time.
The parties shall take steps to ensure that any natural person acting under their authority respectively who have access to Personal Data do not process Personal Data except on the instructions from you unless he or she is required to do so by any Data Protection Law.
We may collect, process, or use Customer Data only within the scope of this DPA.
We confirm that we shall process Customer Data on behalf of you, in accordance with your documented instructions.
We shall promptly inform you, if in our opinion, any of the instructions regarding the processing of Customer Data provided by you, breach any applicable Data Protection Laws.
We shall ensure that all employees, agents, officers, and contractors involved in the handling of Customer Data: (i) are aware of the confidential nature of the Customer Data and are contractually bound to keep the Customer Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
We shall implement appropriate technical and organizational procedures to protect Customer Data, 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.
We shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymization and encryption of Customer Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing. When assessing the appropriate level of security, in particular the risks associated with the processing must be considered, in particular due to accidental or unlawful destruction, loss, modification, unauthorized disclosure or access to transmitted, stored or otherwise processed customer data.
The technical and organizational measures detailed in Appendix 2 shall be at all times adhered to as a minimum-security standard. You accept and agree that the technical and organizational measures are subject to development and review and that we may use alternative suitable measures to those detailed in the attachments to this DPA provided such measures are at least equivalent to the technical and organizational measures set out in Appendix 2 and appropriate.
You acknowledge and agree that, in the course of providing the Services to you, it may be necessary for us to access the Customer Data to respond to any technical problems or queries and to ensure the proper working of the Cloud Service. All such access by us will be limited to those purposes defined in Appendix 1.
Where Customer Data relating to an EU (or UK or Swiss) Data Subject is transferred outside of the EUROPEAN UNION (or the UK or Switzerland) it shall be processed in accordance with the Standard Contractual Clauses unless the processing: (i) takes place in a third country or territory recognized by the EU Commission as having an adequate level of protection; or (ii) is by an organization located in a country which has other legally recognized appropriate safeguards in place.
Considering the nature of the processing and the information available to us, we shall assist you by having in place appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights and your compliance with your data protection obligations in respect of the processing of Customer Data.
We confirm that we have appointed a data protection officer where such appointment is required by applicable data protection legislation.
You represent and warrant that you shall comply with the terms of the Agreement, this DPA and all applicable Data Protection Laws.
You represent and warrant that you have obtained any and all necessary permissions and authorizations necessary to permit us, our Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
You are responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Customer Data under this DPA and the Agreement.
All Authorized Affiliates who use the Services shall comply with your obligations set out in this DPA.
You shall implement appropriate technical and organizational procedures to protect Personal Data, considering 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. You shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
You acknowledge and agree that some instructions from you, including destruction or return of data from us, us assisting you with inspections, data protection impact assessments (DPIAs) or providing any assistance under this DPA, may result in additional fees which shall not be unreasonable. In such case, we will notify you of such fees in advance unless otherwise agreed.
You acknowledge and agree that: (i) Our Affiliates may be used as Sub-processors; and (ii) we and our Affiliates respectively may engage Sub-processors in connection with the provision of the Services.
We shall not authorize any Sub-processor to process Personal Data without prior notification to you as defined in 6.5.
All Sub-processors who process Customer Data in the provision of Services to you shall comply with our obligations set out in this DPA and we acknowledge and agree that we are fully responsible and liable for any Sub-processor’s processing of Personal Data for the performance of its obligations under this DPA.
You agree that Sub-Processors may transfer Personal Data for the purpose of providing the Services to you in accordance with the Agreement to countries outside the European Economic Area (EUROPEAN UNION). Where Sub-processors are located outside of the EUROPEAN UNION, we confirm that such Sub-processors: (i) are located in a third country or territory recognized by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with us; or (iii) have other legally recognized appropriate safeguards in place.
You authorize us to use the Sub-Processors already engaged by us on the Effective Date and we shall make available to you the current list of Sub-processors at Smint.io.com/terms which shall include the identities of Sub-processors and their country of location. During the term of this DPA, we shall provide you with prior notification of at least 30 days, via email or postal mail, of any changes to the list of Sub-processor(s) who may process Customer Data before authorizing any new or replacement Sub- processor(s) to process Customer Data in connection with the provision of the Services.
You may object to the use of a new or replacement Sub-processor, by notifying us promptly in writing within ten (10) Business Days after receipt of our notice. If you object to a new or replacement Sub-processor, you may terminate the Agreement or applicable Order with respect to those services which cannot be provided by us without the use of the new or replacement Sub- processor. We will refund you any prepaid fees covering the remainder of the term of the Agreement (or applicable Order) following the effective date of termination with respect to such terminated services.
Transfer of Data
If the Processor is located in the European Union, UK or Switzerland, (”European Territories”) and processes EUROPEAN UNION, UK or Swiss Personal Data at or from facilities in a third country, Standard Contractual Clauses shall be incorporated with those processors. The parties agree that the Processor is the data importer, and the Controller is the data exporter. Unless otherwise agreed by the parties, Appendices 1 and 2 of this DPA shall apply to the SCCs and the governing law will be the country in which the relevant Controller is established. Nothing in this DPA shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. Each party acknowledges that it has had the opportunity to review the Standard Contractual Clauses. In particular, the Processor acknowledges its obligations: (i) to promptly inform the Controller of the Processor’s inability to comply with the Standard Contractual Clauses; (ii) to notify the Controller of a legally binding request for disclosure by a law enforcement authority; and (iii) o deal promptly and properly with all inquiries from the Controller relating to the processing which is the subject of the transfer.
For the avoidance of doubt, in the event that the European Commission approves a successor set of Standard Contractual Clauses (”New SCCs”), or the UK authorities issue a set of Standard Contractual Clauses (”UK SCCs”), the New SCCs and the UK SCCs shall be incorporated by reference in this DPA in place of the previously approved set of Standard Contractual clauses. In such cases, the information set out in Appendices 1 and 2 of this DPA shall be deemed to be incorporated into the appropriate sections of the New SCCs and the UK SCCs, and the Processor acknowledges the equivalent obligations in the New SCCs and UK SCCs as those set out above. To the extent that the New SCCs or UK SCCs require the inclusion of additional information not covered by Appendices 1 and 2 of this DPA, the Controller may incorporate that additional information into the New SCCs and UK SCCs by way of a written notice to the Processor.
This section applies if the Processor is established in the European Territories and engages a Sub-Processor in a third country to process EU, Swiss or UK Personal Data. In this situation, the Processor will assist the Controller and its Affiliates based in the
European Territories and/or that process Personal Data of Data Subjects in the European Territories to provide an adequate level of protection for EU, Swiss or UK Personal Data by executing Standard Contractual Clauses with that Sub-Processor on the Controller’s behalf. The Controller hereby appoints the Processor as its agent for the sole purpose of entering into such Standard Contractual Clauses on its behalf. The Processor shall provide the Controller with a copy of any Standard Contractual Clauses entered into pursuant to this section promptly on request.
Data Subject Access Requests
You may require correction, deletion, blocking and/or making available the Customer Data during or upon termination of the Agreement. You acknowledge and agree that we will process the request and will reasonably fulfil such request in accordance with our standard operational procedures to the extent possible.
In the event that we receive a request from a Data Subject in relation to Customer Data, we will refer the Data Subject to you unless otherwise prohibited by law. You shall reimburse us for reasonable costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request; provided you receive prior written notice regarding all such costs. In the event that we are legally required to respond to the Data Subject, you will fully cooperate with us as applicable.
We shall make available to you and subject to a reasonable fee all information reasonably necessary to demonstrate compliance with our processing obligations and allow for and contribute to audits and inspections.
Any audit conducted by you under this DPA shall consist of examination of our most recent reports, certificates and/or extracts prepared by us, or an independent auditor bound by confidentiality provisions at least as strict as those set out in the Agreement. In the event that provision of the same is not deemed sufficient in your reasonable opinion, you may conduct a more extensive audit which will be: (i) at your expense; (ii) limited in scope to matters specific to you and agreed in advance; (iii) carried out during Austrian business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iv) conducted in a way which does not interfere with our day-to-day business.
This clause shall not modify or limit your rights of audit in accordance with applicable law, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
We shall notify you without undue delay after becoming aware of and in any event within 72 hours of discovering any accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access to any Customer Data.
We will promptly investigate every security breach and take reasonable measures to identify its root cause(s), mitigate its adverse effect and prevent a recurrence. As information becomes available, unless prohibited by law, we will provide you with a description of the security breach, the type of Customer Data that was the subject of the Data Breach, and other information you may reasonably request concerning the affected Customer Data.
We will take all commercially reasonable measures to secure the Customer Data, to limit the effects of any Data Breach, and to assist you in meeting your obligations under applicable law.
Compliance, Cooperation and Response
We will notify you promptly of any request or complaint regarding the processing of Customer Data, which adversely affects you, unless such notification is not permitted under applicable law or a relevant court order.
We may make copies of and/or retain Customer Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
We shall reasonably assist you in meeting your obligation to carry out data protection impact assessments (DPIAs), taking into account the nature of the processing and the information available to us.
You shall notify us within a reasonable time, of any changes to Data Protection Laws, and applicable codes or regulations which may affect our contractual duties. We shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organizational measures to maintain compliance. If we are unable to accommodate reasonably necessary changes, you may terminate the part or parts of the Services which give rise to the non- compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with the applicable supervisory authority in the performance of their respective obligations under this DPA and Data Protection Laws.
The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
The parties agree that we shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of our Sub-processors to the same extent we would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
The parties agree that you shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of your Authorized Affiliates as if such acts, omissions or negligence had been committed by you yourself.
You shall not be entitled to recover more than once in respect of the same loss.
Term and Termination
The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.
We shall at your choice, upon receipt of a written request received within 10 days of the effective date of termination of the Agreement, delete Personal Data according to our internal procedures or return Personal Data to you. We shall in any event within ninety (90) days of termination of the Agreement, delete all Customer Data from our systems and provide you with certificates of such deletion upon request.
If you make a request to have Customer Data deleted earlier than the expiry of aforementioned periods, we shall delete the Customer Data without undue delay, for a reasonable charge unless prohibited from doing so by applicable law.
This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
Subject to any provision of the Standard Contractual Clauses to the contrary, this DPA shall be governed by the law applicable to the terms of the Agreement. The courts that shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA shall be the same as those set out in the terms of the Agreement.
The provisions of this DPA shall survive the termination of other relevant existing Agreement(s) and continue as long as we have possession of your Personal Data.
Any notices under this DPA shall be in writing, sent via email to the email addresses as provided in the Order Documents with a copy sent via email to firstname.lastname@example.org .
Overview of data processing activities to be performed by us.
You in your role as the Data Controller will use the Services or grant users the right to access the Cloud Service in accordance with the terms of the Agreement for transfer of Customer Data identified herein, as it relates to the processing operations.
We in our role as the Data Processor receive data as identified herein below, as it relates to the processing operations.
You acknowledge and agree that the categories of Data subjects that use and might process Customer Data via the Services are solely determined by you and your User’s use of the Cloud Service. Notwithstanding the foregoing, the Customer Data processed usually concerns the following categories of Data Subjects:
- Employees, freelancers, and contractors of you.
- Users, Authorized Affiliates and other participants.
- Partners, suppliers, or service providers of you
- Customers of you or your media contacts.
- Any individual to whom you have granted the right to access the Services in accordance with the terms of the Agreement.
- Other individuals to the extent identifiable through their use or registration with the Cloud Service, or through content of files or metadata processed with the Services.
Categories of Customer Data
The categories of Customer Data processed is solely determined by you and your Users use of the Services but when using the Cloud Service as a registered user which may include the User’s full name, email, address, password, and IP address. Customer Data might be stored in database records, metadata and files on file systems which identify or may reasonably be used to identify, Data Subjects.
When using the Cloud Service, you agree and acknowledge that you and your Users will abide by the Acceptable Use Policy (AUP) and that Customer Data including Personal Data is only processed via the Cloud Service with the prior written consent of the Data Subject.
Special categories of Personal Data
We do not require any special categories of Personal Data for using the Services such as, for example only, data of minors. Your and your User’s use of the Services solely determines if and which special categories of Personal Data are stored and processed.
- The Customer Data processed will be subject to the following basic processing activities:
- Customer Data will be processed to the extent necessary to provide the Services in accordance with both the Agreement and your instructions. We process Customer Data only on behalf of you, the Data Controller.
- Processing operations include, but are not limited to:
- Provision of the Cloud Service via our hosting infrastructure.
- Auditing use of the Cloud Service for compliance with the Agreement or applicable law.
- Analyzing the usage of the Cloud Service and Customer Data for the purpose of protecting it against threats or for improving the Cloud Service.
- Provision of Technical support, issue diagnosis and Defect resolution to ensure the efficient and proper running of the systems and to identify, analyze and resolve technical issues both generally in the provision of the Cloud Service and specifically in answer to Support queries of you or your users.
- Informing users about changes, issues or maintenance work related to the Cloud Service.
- Complying with your requests for Professional Services or auditing that involve accessing and processing Customer Data.
- Fulfilling any other obligation set out in the Agreement.
All these operations relate to all categories and aspects of Customer Data processed.
Technical and Organizational Security Measures
The following descriptions provide an overview of the technical and organizational security measures implemented. It should be noted however that, in some circumstances, in order to protect the integrity of the security measures and in the context of data security, detailed descriptions may not be available. It’s acknowledged and agreed that the technical and organizational measures described therein and in our internal IT & Security Policies will be updated and amended from time to time, at our sole discretion. Notwithstanding the foregoing, the technical and organizational measures will not fall short of those measures described in our IT Security Policy in any material, detrimental way.
We utilize Microsoft Azure Cloud infrastructure hosted in Amsterdam/Netherlands for the Cloud Service with state of the art security certifications. See: https://docs.microsoft.com/en-us/azure/compliance/
Physical Access Control
Technical or organizational measures regarding access control, especially regarding legitimation of authorized persons:
The aim of the entrance control is to prevent unauthorized people from physically accessing such data processing equipment which processes or uses Customer Data.
We employ measures designed to prevent unauthorized persons from gaining access to data processing systems that we use for the Services.
System Access Control
Technical and organizational measures regarding the user identification and authentication:
The aim of the system access control is to prevent unauthorized use of data processing systems used for the processing of Customer Data.
The following may, among other controls, be applied depending upon the particular Services ordered: authentication via passwords and, documented authorization and change management processes, and logging of access on several levels.
Data Access Control
Technical and organizational measures regarding the authorization concept, data access rights and monitoring and recording of the same:
Measures regarding data access control are targeted on the basis that only such data can be accessed for which an access authorization exists, and that data cannot be read, copied, changed or deleted in an unauthorized manner during the processing and after the saving of such data.
Customer Data is accessible and manageable only by properly authorized staff, direct database query access is restricted, and application access rights are established and enforced. Access to data necessary for the performance of the particular task is ensured within the systems and applications by a corresponding role and authorization concept.
Technical and organizational measures regarding the transport, transfer, transmission, storage and subsequent review of Customer Data on data media (manually or electronically).
Transmission control is implemented so that Customer Data cannot be read, copied, changed or deleted without authorization, during transfer or while stored on data media, and so that it can be monitored and determined as to which particular recipients a transfer of Customer Data is intended.
Except as otherwise specified for the Services or parts thereof, transfers of data outside the Cloud Service environment and our internal IT infrastructure used for Services such as backups, POC, staging, testing or project implementation are encrypted and/or stored on encrypted media.
The content of communications (including sender and recipient addresses) sent through some email or messaging services may not be encrypted. You are responsible for the results of your decision to use unencrypted communications or transmissions when exchanging data with us through such email or messaging services, or when using part of the Cloud Service that rely on sending content through such email or messaging services.
The transfer of Customer Data to a third party (e.g., sub-processors) is only made if a corresponding agreement exists, and only for the specific purposes. If Customer Data is transferred to companies located outside the EUROPEAN UNION (or the UK or Switzerland), we provide that an adequate level of data protection exists at the target location or organization in accordance with our obligations of this DPA, e.g., by employing contracts based on the Standard Contractual Clauses.
Customer Data used for internal purposes only e.g., as part of the respective customer relationship, may be transferred to a third party such as a subcontractor, solely under consideration of contractual arrangements and appropriate data protection regulatory requirements.
Data Backup and Availability Control
Technical and organizational measures regarding data backup (physical/logical):
Data backup and availability controls are implemented to protect Customer Data against accidental destruction and loss.
Backups for our Cloud Services are taken on a regular basis where you have chosen a corresponding Hosting type or Backup option as defined in the Agreement. It is your sole responsibility to select such corresponding options providing you with adequate data backup and availability control.
Backup media transferred outside of the Hosting infrastructure of the Cloud Service and our internal IT infrastructure used for Services such as backups, POC, staging, testing or project implementation is always encrypted except we are instructed otherwise by you for which you are then responsible.
Technical and organizational measures regarding purposes of collection and separated processing:
Customer Data from our different customer environments is logically segregated on our systems or those of Sub-processors by technical or organizational means.
Employees are instructed to collect, process and use Customer Data only as per the definitions of our IT & Security Policies and for the purposes of their duties only (e.g. provision of Professional Services), and to delete such Customer Data if no longer required for the purpose of the delivery of Services or as required by applicable law.
Customer Data processed via our Cloud Service is stored in a way that logically separates it from other customer data.