Last modified: 09 October 2024
This Data Processing Agreement ("Agreement") forms part of the Contract for Wystra’s Terms of Service (the “Principal Agreement") between KS Systems GmbH, Wotanstr 30, 80639 München, Germany, Company registration number HRB179627 (referred to as the "Service Provider") and the Company using KS Systems GmbH’s services (referred to as the "Company").
This Agreement governs the specific requirements of Data Protection Laws to the extent that the Company’s use of the Service Provider’s services implies the processing of Personal Data subject to Data Protection Laws.
This Agreement is complementary to our Privacy Policy, which serves as the primary reference for our data protection practices and measures.
The term of this Agreement shall follow the term of the Principal Agreement. Terms not defined herein shall have the meaning as set forth in the Principal Agreement.
WHEREAS
A) The Company acts as a Data Controller (the "Controller").
B) The Company wishes to subcontract certain Services (as defined below), which imply the processing of Personal Data, to the Service Provider, acting as a Data Processor (the "Processor").
C) The Parties seek to implement a data processing agreement 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) and other applicable data protection laws.
D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
1.1) "Agreement" means this Data Processing Agreement and all Schedules;
1.2) "Company Personal Data" means any Personal Data related to the Company or Company’s customers or employees Processed in connection with the Principal Agreement;
1.3) "Contracted Processor" means a Subprocessor;
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;
1.5) "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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.6) "GDPR" means EU General Data Protection Regulation 2016/679;
1.7) "Data Transfer" means:
1.7.1) a transfer of Company Personal Data from Controller to the Processor or a Contracted Processor; or
1.7.2) an onward transfer of Company Personal Data from the Processor to a Subprocessor, or between two establishments of a Subprocessor;
1.8) "Services" means online secure services provided by the Processor, such as Wystra, an employee review platform, provided and managed by the Service Provider. The details and pricing of the Services can be found on the Processor’s website.
1.9) "Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of Controller in connection with the Agreement.
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 or other applicable Data Protection Law, and their cognate terms shall be construed accordingly.
Processor shall:
2.1) comply with all applicable Data Protection Laws in the Processing of Company Personal Data;
2.2) and not process Company Personal Data other than on Controller’s documented instructions in section 2.
Controller instructs Processor to process Company Personal Data to:
2.3) provide the Services and related technical support;
2.4) fulfil legal obligations or resolve disputes;
2.5) exercise any internal task aimed to optimise the security, privacy, confidentiality and functionalities of the Services;
2.6) exercise internal reporting, financial reporting and other similar internal tasks.
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and/or to comply with Data Protection Laws and other relevant legislation 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.
In accordance with Article 32 (1) of the GDPR, the Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing. These measures shall be designed to protect the rights and freedoms of natural persons, considering the risks of varying likelihood and severity, including the risk of a Personal Data Breach.
The Processor shall also assess the risks associated with processing activities and apply measures that are consistent with the requirements set forth in Article 32 (1) GDPR, ensuring the security of Company Personal Data at all times.
Subject to this Agreement, the Company grants general authorization to the Processor to engage Subprocessors and disclose or transfer Company Personal Data to them. The Company acknowledges and approves the list of Subprocessors outlined in the Processor’s Privacy Policy, understanding that this list may be updated by the Processor regularly, in which case the company shall be informed by the Processor according to the Privacy Policy notification process. Furthermore, the Company authorizes the Processor to disclose and transfer Personal Data to any company within its corporate group.
Processor ensures that Subprocessors are subject to an agreement with Processor no less restrictive and protective than the present Agreement with respect to the protection of Company Personal Data to the extent applicable to the nature of the services provided by the Subprocessor.
Taking into account the nature of the processing, Processor shall reasonably assist Company for the fulfilment of Company’s obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws.
Processor shall:
6.1) promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2) ensure that it does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.
The Processor shall manage any Personal Data Breach in compliance with applicable Data Protection Laws and its internal Personal Data Breach procedures. In the event of a Personal Data Breach affecting company Personal Data, the Processor shall notify the Company without delay, providing sufficient information to enable the Company to fulfill its obligations under Data Protection Laws, including informing Data Subjects as necessary. In such cases, Processor shall provide Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Processor shall co-operate with Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Each party shall bear the costs of the investigation, remediation, mitigation, and other related costs to the extent a Data Breach is caused by such party.
Each party shall bear the costs of any fines, penalties, damages, or other related amounts imposed by an authorized regulatory body, governmental agency, or court of competent jurisdiction to the extent arising from such party’s breach of its obligations under this Agreement.
Processor shall provide reasonable assistance to Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers 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 Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
In case of cessation of any Service involving the Processing of Company Personal Data, the Processor shall delete all Company Personal Data to the extent permitted by applicable laws and in accordance with Processor’s Terms and Conditions and Privacy Policy. Should the Company require a copy of their data, they must request it before the deletion of their account; requests made after the account has been deleted can no longer be considered.
Subject to this section, the Service Provider (KS Systems GmbH) shall make available to the Company all necessary information to demonstrate compliance with this Agreement regarding the processing and management of Personal Data. The Company may request documented evidence of compliance, including certifications or reports, in lieu of an audit.
Audits shall only be conducted if required by law, regulatory authority, or in the event of a Personal Data Breach. The Company shall provide sixty (60) days’ notice before any audit, and both parties will mutually agree on the scope, duration, and confidentiality measures prior to the audit.
The Company acknowledges that a non-disclosure agreement may be required before the audit can proceed, and that the Service Provider reserves the right to charge reasonable costs related to the audit.
Information and audit rights of the Company arise only under this section and to the extent that such rights are required by Data Protection Law.
To the extent possible, the Processor shall only transfer or authorize the transfer of Personal Data to countries within the EU or countries with an adequacy decision under Article 45 GDPR. If Personal Data processed under this Agreement is transferred from the EU to a non-adequate country, the Parties shall ensure that the Personal Data is adequately protected. The Parties will rely on EU-approved standard contractual clauses or other lawful transfer mechanisms provided under Data Protection Laws. Processor may transfer data to Subprocessors if adequate safeguards are in place.
Compliance with Applicable Laws. Processor will process Company Personal Data in accordance with this Agreement and Data Protection Laws applicable to its role under this Agreement. Processor is not responsible nor liable for complying with Data Protection Laws solely applicable to Company by virtue of its business or industry.
Confidentiality. Each party must keep any information it receives about the other party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain through no fault of the Parties.
Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. Controller shall be notified by email sent to the address related to its use of the Services under the Principal Agreement. Processor shall be notified by email sent to the address: [email protected].
Governing Law and Jurisdiction. This Agreement shall be governed by German law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and disputed, actions, claims or causes of action arising out of or in connection with this Agreement, an order form, any document incorporated by reference, Wystra technology, or the Services shall be subject to the exclusive jurisdiction of Munich, Germany.
