Data Processing Agreement
Data Processing Agreement
This data processing agreement (the "Data Processing Agreement") is between HostNine at 2500 Ridgepoint Dr, Austin, TX 78754
(the "Data Processor") and the customer agreeing to the HostNine User Agreement
hereto (the "Schedule"). The Data Processing Agreement and the Schedule shall be referred to collectively as the
"Agreement". Terms used in the Data Processing Agreement but not defined herein shall have the meaning attributed to them
in the Schedule.
Controller. As a result of its providing the Services to Data Controller, Data Processor will store and process certain personal information
of Data Controller as described below:
- The Customer Personal Data Processed by Data Processor will be subject to the following basic Processing activities: Operations necessary
destruction and access of the Customer Personal Data.
- The Customer Personal Data Processed by Data Processor shall concern only the following categories of Data Subjects: Customers of Data
Controller based in the European Union whose information is provided to Data Processor for the purposes of the provision of the Services
- The Customer Personal Data Processed by Data Processor includes and shall be limited to the following categories of data: (i)
identification and contact information (such as name, email address); (ii) purchase information (such as payment method, products purchased,
billing information); and (iii) information gathered in the provision of services to Data Controller (such as analytics, device and browser
- The Customer Personal Data Processed by Data Processor does not contain special categories of Personal Data.
The Agreement is being put in place to ensure that Data Processor processes Data Controller’s personal data on Data Controller’s instructions
and in compliance with applicable data privacy laws. The Parties to this Agreement hereby agree to be bound by the terms and conditions in
the attached Schedule as applicable with effect from 25 May 2018 (the "Effective Date").
STANDARD TERMS FOR PROCESSING AGREEMENT
Definitions For the purposes of this Agreement, the following expressions bear the following meanings unless
the context otherwise requires:
- "Applicable Data Protection Laws" means the General Data Protection Regulation 2016/679 ("GDPR")
once it takes effect and any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule
or other binding instrument of the Data Controller’s Member State which implements the GDPR, the Data Protection Directive 95/46/EC
and the e-Privacy Directive 2002/58/EC (in each case as amended, consolidated, re-enacted or replaced from time to time);
- "Customer Personal Data" means Personal Data provided by Data Controller to Data Processor for Processing on
- "Data Subject" means the living individuals who are the subject of the Customer Personal Data;
- "Model Clauses" means the standard contractual clauses for the transfer of Personal Data to data processors
established in Third Countries set out in the Commission Decision of 5 February 2010 (C(2010) 593), as amended by EU Commission
Implementing Decision 2016/2297 of 16 December 2016;
- "Personal Data" and "Process", "Processed" or "Processing"
have the meaning given in the GDPR;
- "Regulator" means the data protection supervisory authority which has jurisdiction over Data Controller’s
Processing of Personal Data; and
- "Third Countries" means all countries outside of the scope of the data protection laws of the European Economic
Area ("EEA"), excluding countries approved as providing adequate protection for Personal Data by the European
Commission from time to time.
- Conditions of Processing
- This Agreement governs the terms under which Data Processor is required to Process Customer Personal Data on behalf of
terms of this Agreement shall prevail, to the extent of the conflict.
- Data Processor’s Obligations
- Data Processor shall only Process Customer Personal Data on behalf of Data Controller and in accordance with, and for the
purposes of providing the Services. If Data Processor cannot provide such compliance for whatever reason (including if the
instruction violates Applicable Data Protection Laws), it agrees to inform Data Controller of its inability to comply as soon
as reasonably practicable.
- Data Processor shall ensure that its personnel who are authorized to Process the Customer Personal Data have committed
themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Data Processor shall implement and hold in force for the term of this Agreement specific technical and organizational
security measures as required by the GDPR.
- Data Processor shall notify Data Controller promptly upon receipt by Data Processor of a request from an individual
seeking to exercise any of their rights under Applicable Data Protection Laws. Taking into account the nature of the
processing, Data Processor shall, at Data Controller’s expense, assist Data Controller by appropriate technical and
organizational measures, for the fulfillment of Data Controller’s obligation to respond to requests by Data Subjects to
exercise their rights under Chapter III of the GDPR (including the right to transparency and information, the data subject
access right, the right to rectification and erasure, the right to the restriction of processing, the right to data
portability and the right to object to processing). Data Processor shall carry out a request from Data Controller to amend,
correct, block, transfer or delete any of the Customer Personal Data to the extent necessary to allow Data Controller to
comply with its responsibilities as a data controller.
Data Processor shall, insofar as possible and at Data Controller’s expense, assist Data Controller in carrying out its
obligations under Articles 32 to 36 of the GDPR and any other Applicable Data Protection Laws with respect to security, breach
notifications, impact assessments and consultations with supervisory authorities or regulators. Data Processor shall comply
with GDPR breach notification requirements.
- Upon termination of the Processing of Personal Data by Data Processor (subject to Data Processor’s customer data retention
policy) and at Data Controller’s request, Data Processor shall either (i) delete all Customer Personal Data; or (ii) return
all Customer Personal Data to the Data Controller and delete existing copies unless applicable law requires storage of the
Customer Personal Data.
- Data Processor shall upon written request from Data Controller from time to time provide Data Controller with all information necessary
to demonstrate compliance with the obligations laid down in this Agreement.
- Data Controller acknowledges and agrees that Data Processor may, or may appoint an affiliate or third party subcontractor to, Process
the Data Controller’s Personal Data in a Third Country, provided that it ensures that such Processing takes place in accordance with the
requirements of Applicable Data Protection Laws. Data Controller hereby consents to Data Processor’s access to Customer Personal Data from
the United States to the extent necessary for Data Processor to provide the Services.
- Where the Data Processor processes, accesses, and/or stores Customer Personal Data in any Third Country, Data Processor shall comply with
the data importer’s obligations set out in the Model Clauses, which are hereby incorporated into and form part of this Agreement. The
processing details set out at paragraphs a) to d) of the first page of this Agreement shall apply for the purposes of Appendix 1 of the Model
Clauses and the terms of the Security Policy apply for the purposes of Appendix 2 of the Model Clauses. Data Controller hereby grants Data
Processor a mandate to execute the Model Clauses, for and on behalf of Data Controller, with any relevant subcontractor (including
affiliates) it appoints.
- Data Controller acknowledges and agrees that Data Processor relies solely on Data Controller for direction as to the extent to which Data
Processor is entitled to access, use and process Customer Personal Data. Consequently, Data Processor is not liable for any claim brought by
Data Controller or a data subject arising from any action or omission by Data Processor to the extent that such action or omission resulted
from Data Controller’s instructions.
- Data Controller’s Obligations
- Data Controller warrants that it has complied and continues to comply with the Applicable Data Protection Laws, in particular that it has
obtained any necessary consents or given any necessary notices, and otherwise has a legitimate ground to disclose the data to Data Processor
and enable the Processing of the Customer Personal Data by the Data Processor as set out in this Agreement and as envisaged by the Terms of
- Data Controller agrees that it will indemnify and hold harmless Data Processor on demand from and against all claims, liabilities, costs,
expenses, loss or damage (including consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and
other professional costs and expenses) incurred by Data Processor arising directly or indirectly from a breach of this Clause 4 or any
Applicable Data Protection Laws.
- Data Controller hereby consents to the use by Data Processor of the Subcontractors set out in the list of third party sub
processors available upon request. If Data Processor appoints a new Subcontractor to Process Customer Personal Data, it shall
update such list. In the event that Data Controller objects to the appointment, Data Controller’s sole remedy shall be to
terminate the services provided by Data Processor. If Data Controller does not object, Data Processor may proceed with the
appointment. Data Processor ensures that it has a written agreement in place with all Subcontractors which contains
obligations on the Subcontractor which are no less onerous on the relevant Subcontractor than the obligations on Data
Processor under this Agreement.
- Law and Jurisdiction
- This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection
with it or its subject matter or formation shall be governed by and construed in all respects in accordance with the laws of
This file was last modified on June 27, 2018.