2501 Aerial Center Pkwy, Suite 111
Morrisville, NC 27560
(“Syncfusion” or “Processor”) (together as the “Parties”)
WHEREAS
(A) Customer acts as a Data Controller.
(B) Syncfusion acts as a Data Processor.
(C) The Parties seek to implement a DPA that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), including the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (the “UK GDPR”).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1.Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
- 1.1.1 “DPA” means this Data Processing Addendum;
- 1.1.2 “Customer Personal Data” means any Personal Data Processed by the Processor on behalf of Customer pursuant to or in connection with this DPA;
- 1.1.3 “Contracted Processor” means a Subprocessor;”
- 1.1.4 Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
- 1.1.5 “EEA” means the European Economic Area;
- 1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
- 1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
- 1.1.8 “Data Transfer” means:
- 1.1.8.1 a transfer of Customer Personal Data from the Customer to a Contracted Processor; or
- 1.1.8.2 an onward transfer of Customer Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws
- 1.1.9 “Standard Contractual Clauses” means (i) where the GDPR applies, the Standard Contractual Clauses for the Transfer of Personal Data to Third Countries approved by the European Commission Decision of 4 June 2021, as attached to this DPA; or (ii) where the UK GDPR applies, the Standard Contractual Clauses (controller to processor) promulgated by the European Commission Decision 2010/87/EU.
- 1.1.10 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Customer in connection with this DPA.
1.2 The terms, “Commission“, “Controller“, “Data Subject“, “Member State“, “Personal Data“, “Personal Data Breach“, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their related terms shall be construed accordingly.
2. Processing of Customer Personal Data
2.1 Processor shall:
- 2.1.1 Use best efforts to comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
- 2.1.2 Process Customer Personal Data in accordance with the instructions below in Section 2.2.
2.2 Controller Instructions:
- 2.2.1 The Parties agree that Processor will process Customer Data for the purposes of performing a contract, compliance with legal obligations, and/or legitimate business interests.
- 2.2.2 The Parties agree that this DPA, together with Customer’s use of the Licensed Products in accordance with the terms and conditions of their respective Agreements, constitute your complete instructions to Processor in relation to the Processing of Customer Data.
- 2.2.3 Processor is not responsible for compliance with any Data Protection Laws applicable to Customer or Customer’s industry that are not generally applicable to Processor.
3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of this DPA, and to comply with applicable laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4. Security
4.1 Customer is responsible for independently determining whether the data security provided in relation to Customer’s use of the Licensed Products adequately meets Customer’s obligations under applicable Data Protection Laws. Customer is also responsible for its secure use of the Licensed Products, including protecting the security of Personal Data in transit in connection with such use (including to securely backup or encrypt any such Personal Data).
4.2 Processor will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches.
5. Subprocessing
5.1 Processor will only appoint (or disclose any Customer Personal Data to) any Subprocessor for the purposes stated in Section 2.2.1.
5.2 Customer agrees that any subprocessors noted on this site are authorized: .
6. Data Subject Rights
6.1 Processor shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible, as described below.
6.2 Processor shall:
- 6.2.1 Promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
- 6.2.2 Ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which the Processor is subject, in which case Processor shall to the extent permitted by applicable laws.
7. Personal Data Breach
7.1 Processor shall notify Customer without undue delay upon Processor becoming aware of a Personal Data Breach affecting Customer Personal Data. Such notification will include that information a processor must provide to a controller under Article 33(3) to the extent such information is reasonably available to Syncfusion.
7.2 Processor shall co-operate with Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which are reasonably considered to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Termination
9.1 At the choice of Customer, and so long as there is no conflicting legal obligation, subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date“), delete and procure the deletion of all copies of those Customer Personal Data, unless Union or Member State law requires storage of the Personal Data.
9.2 This DPA will terminate automatically upon termination of the Agreement.
10. Audit rights
10.1 Subject to this section 10, Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.
10.2 Information and audit rights of the Customer only arise under section 10.1 to the extent that the DPA does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
10.3 If Customer chooses to conduct an independent audit, Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Syncfusion will provide Customer with further details of any applicable costs or fees, and the basis of its calculation, in advance of any such review or audit.
10.4 Before the commencement of any such on-site audit, Customer and Syncfusion shall mutually agree upon the scope, timing, and duration of the audit.
10.5 Customer shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to Syncfusion’s premises, equipment, personnel and business while Customer’s personnel are on those premises in the course of such an audit.
11. Data Transfer
11.1 Customer acknowledges and agrees that Processor may access and Process Personal Data on a global basis as described in Section 2.2.1. Wherever Personal Data is transferred outside its country of origin, each party will ensure such transfers are made in compliance with the requirements of Data Protection Laws, as detailed in Section 11.2.
11.2 Cross-Border Transfer Mechanisms for International Data Transfers.
- a. To the extent that Customer’s use of the Service requires a transfer of Personal Information outside the EEA or the United Kingdom (the “UK”), Syncfusion and Customer will take such measures as are necessary to ensure the transfer is in compliance with applicable Data Protection Laws.
- b. Syncfusion and Customer will only transfer Personal Information from the EEA or the UK to countries outside the EEA or the UK (i) that are recognized by the European Commission as providing an adequate level of protection for Personal Information; (ii) that are covered by a suitable framework recognized by the European Commission as providing an adequate level of protection for Personal Information; or (iii) through the use of other legally recognized validation methods such as Standard Contractual Clauses.
- c. Syncfusion currently transfers personal data from the EEA or the UK to countries outside the EEA as follows: Syncfusion has adopted and hereby incorporates by reference the Standard Contractual Clauses. The parties further agree that the Standard Contractual Clauses will apply to Personal Information that is transferred from the EEA or the UK, either directly or via onward transfer, to any country or recipient not recognized by the European Commission as providing an adequate level of protection for personal data.
- d. The parties hereby agree that as new Standard Contractual Clauses are approved by the European Commission or other competent authority and become available for data controller to data processor transfers, this DPA will be updated to replace the existing Standard Contractual Clauses with the updated and approved Standard Contractual Clauses, if any.
- e. Each party agrees to the attached Standard Contractual Clauses, found in Exhibit A, where Customer is the “controller” and Syncfusion the “processor”.Governing Law and Jurisdiction
11.3 This DPA is governed by the substantive laws of the state of North Carolina, unless required otherwise by Data Protection Laws.
IN WITNESS WHEREOF, this DPA is entered into with effect from the date first set out below.
Customer
Signature ___________________________________
Name : _____________________________________
Title : ______________________________________
Date Signed : ________________________________
Syncfusion, Inc.
Signature ___________________________________
Name : _____________________________________
Title : ______________________________________
Date Signed : ________________________________
ANNEX
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(a) The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data
(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 and/or Article 29 (3) and (4) Regulation (EU) 2018/1725.
(c) These Clauses apply to the processing of personal data as specified in Annex II.
(d) Annexes I to IV are an integral part of the Clauses.
(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
(f) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
Clause 2
Invariability of the Clauses
(a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
(b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.
Clause 3
Interpretation
(a) Where these Clauses use the terms defined in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725 respectively.
(c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or in a way that prejudices the fundamental rights or freedoms of the data subjects.
Clause 4
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 5
Description of processing(s)
The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.
Clause 6
Obligations of the Parties
6.1. Instructions
(a) The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.
(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or the applicable Union or Member State data protection provisions.
6.2. Purpose limitation
The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.
6.3. Duration of the processing of personal data
Processing by the processor shall only take place for the duration specified in Annex II.
6.4. Security of processing
(a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.
(b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
6.5. Sensitive data
If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.
6.6. Documentation and compliance
(a) The Parties shall be able to demonstrate compliance with these Clauses.
(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.
(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.
6.7. Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.
(b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
(c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
(d) The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.
(e) The processor shall agree a third party beneficiary clause with the sub-processor whereby – in the event the processor has factually disappeared, ceased to exist in law or has become insolvent – the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
6.8. International transfers
(a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.
(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 6.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.
Clause 7
Assistance to the controller
(a) The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.
(b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions
(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 7(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
- (1) the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
- (2) the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk;
- (3) the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;
- (4) the obligations in Article 32 Regulation (EU) 2016/679
(d) The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.
Clause 8
Notification of personal data breach
In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 Regulation (EU) 2016/679 or under Articles 34 and 35 Regulation (EU) 2018/1725, where applicable, taking into account the nature of processing and the information available to the processor.
8.1. Data breach concerning data processed by the controller
In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:
(a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);
(b) in obtaining the following information which, pursuant Article 34(3) Regulation (EU) 2018/1725, shall be stated in the controller’s notification, and must at least include:
- (1) the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
- (2) the likely consequences of the personal data breach;
- (3) the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(c) in complying, pursuant to Article 34 Regulation (EU) 2016/679 / with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.
8.2. Data breach concerning data processed by the processor
In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:
(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
(b) the details of a contact point where more information concerning the personal data breach can be obtained;
(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.
Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679 /
SECTION III – FINAL PROVISIONS
Clause 9
Non-compliance with the Clauses and termination
(a) Without prejudice to any provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:
- (1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
- (2) the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725;
- (3) the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 6.1 (b), the controller insists on compliance with the instructions.
(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.
