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Data Processing Addendum (DPA)

This Data Processing Addendum (“DPA“) forms part of, and is subject to, the Master Service Agreement or other written or electronic terms of service or subscription agreement between Orderly d.o.o. that is a party to such agreement (“Ordely“) and the legal entity defined as ‘Customer’ thereunder together with all Customer Affiliates who are signatories to an Order Form for their own Service Account pursuant to such agreement (collectively, for purposes of this DPA, “Customer”, and together with Orderly, the “Parties“) (such agreement, the “Agreement“). All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

  1. Definitions.

“Account” means Customer’s account in the Service in which Customer stores and processes Customer Data.

“Affiliate“ has the meaning set forth in the Agreement.

“Authorized Affiliate“ shall mean a Customer Affiliate who has not signed an Order Form pursuant to the Agreement, but is either a Data Controller or Data Processor for the Customer Personal Data processed by Orderly pursuant to the Agreement, for so long as such entity remains a Customer Affiliate.

“California Consumer Privacy Act“ or “CCPA“ means the California Consumer Privacy Act of 2018, as may be amended from time to time.

“Customer Data” has the meaning set forth in the Agreement.

“Customer Personal Data” means any Customer Data that is Personal Data.

“Data Controller” means an entity that determines the purposes and means of the Processing of Personal Data.

“Data Processor” means an entity that Processes Personal Data on behalf of a Data Controller.

“Data Protection Laws” means all data protection and privacy laws applicable to the respective party in its role in the Processing of Personal Data under the Agreement, including, where applicable, EU & UK Data Protection Law and the CCPA.

“Data Subject” means the identified or identifiable natural person to whom Customer Personal Data relates.

“EU & UK Data Protection Law” means (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“); and (ii) the GDPR as it forms part of United Kingdom law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR“) and the Data Protection Act 2018.

“Personal Data” means any information, including opinions, relating to an identified or identifiable natural person and includes similarly defined terms in Data Protection Laws, including, but not limited to, the definition of “personal information” in the CCPA.

“Processing” shall mean any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination and “Process“, “Processes” and “Processed” will be interpreted accordingly.

“Purposes“ shall mean (i) Orderly’s provision of the Services as described in the Agreement, including Processing initiated by Users in their use of the Services; and (ii) further documented, reasonable instructions from Customer agreed upon by the Parties.

“Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data.

“Services” means the generally available Orderly software-as-a-service offering described in the Documentation and procured by Customer, and any other services provided by Orderly as described under the Agreement, including but not limited to support and technical services.

“SCCs“ means the standard contractual clauses for the transfer of personal data to third countries approved pursuant to Commission Decision (EU) 2021/914 of 4 June 2021, found at ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en.

“Sub-Processor” means any other Data Processors engaged by a member of the Orderly Group to Process Customer Personal Data.

  1. Scope and Applicability of this DPA. This DPA applies where and only to the extent that Orderly Processes Customer Personal Data on behalf of Customer as Data Processor in the course of providing the Services.
  2. Roles and Scope of Processing.

3.1. Role of the Parties. As between Orderly and Customer, Orderly shall Process Customer Personal Data only as a Data Processor (or sub-processor) acting on behalf of Customer and, with respect to CCPA, as a “service provider” as defined therein, in each case regardless of whether Customer acts as a Data Controller or as a Data Processor on behalf of a third-party Data Controller (“Third-Party Controller“) with respect to Customer Personal Data. To the extent any Usage Data (as defined in the Agreement) is considered Personal Data under applicable Data Protection Laws, Orderly is the Data Controller of such data and shall Process such data in accordance with the Agreement and applicable Data Protection Laws.

3.2. Customer Instructions. Orderly will Process Customer Personal Data only for the Purposes. Customer shall ensure its Processing instructions are lawful and that the Processing of Customer Personal Data in accordance with such instructions will not violate applicable Data Protection Laws. The Parties agree that the Agreement (including this DPA) sets out the exclusive and final instructions to Orderly for all Processing of Customer Personal Data, and (if applicable) include and are consistent with all instructions from Third-Party Controllers. Any additional requested instructions requires the prior written agreement of Orderly. Orderly shall promptly notify Customer if, in Orderly’s opinion, such an instruction violates EU & UK Data Protection Law. Where applicable, Customer shall be responsible for any communications, notifications, assistance and/or authorizations that may be required in connection with a Third-Party Controller.

3.3. Customer Affiliates. Orderly’s obligations set forth in this DPA shall also extend to Authorized Affiliates, subject to the following conditions:

(a) Customer must exclusively communicate any additional Processing instructions requested pursuant to 3.2 directly to Orderly, including instructions from its Authorized Affiliates;

(b) Customer shall be responsible for Authorized Affiliates’ compliance with this DPA and all acts and/or omissions by an Authorized Affiliate with respect to Customer’s obligations in this DPA shall be considered the acts and/or omissions of Customer; and

(c) Authorized Affiliates shall not bring a claim directly against Orderly. If an Authorized Affiliate seeks to assert a legal demand, action, suit, claim, proceeding or otherwise against Orderly (“Authorized Affiliate Claim”): (i) Customer must bring such Authorized Affiliate Claim directly against Orderly on behalf of such Authorized Affiliate, unless Data Protection Laws require the Authorized Affiliate be a party to such claim; and (ii) all Authorized Affiliate Claims shall be considered claims made by Customer and shall be subject to any liability restrictions set forth in the Agreement, including any aggregate limitation of liability.

3.4. Customer Processing of Personal Data. Customer agrees that it: (i) will comply with its obligations under Data Protection Laws with respect to its Processing of Customer Personal Data; (ii) will make appropriate use of the Services to ensure a level of security appropriate to the particular content of the Customer Personal Data, such as pseudonymizing and backing-up Customer Personal Data; and (iii) has obtained all consents, permissions and rights necessary under Data Protection Laws for Orderly to lawfully Process Customer Personal Data for the Purposes, including, without limitation, Customer’s sharing and/or receiving of Customer Personal Data with third-parties via the Services.

3.5. Details of Data Processing.

(a) Subject Matter: The subject matter of the Processing under this DPA is the Customer Personal Data.

(b) Frequency and duration: Notwithstanding expiry or termination of the Agreement, Orderly will Process the Customer Personal Data continuously and until deletion of all Customer Personal Data as described in this DPA.

(c) Purpose: Orderly will Process the Customer Personal Data for the Purposes, as described in this DPA.

(d) Nature of the Processing: Orderly will perform Processing as needed for the Purposes, and to comply with Customer’s Processing instructions as provided in accordance with the Agreement and this DPA.

(e) Retention Period. The period for which Customer Personal Data will be retained and the criteria used to determine that period shall be determined by Customer during the term of the Agreement via its use and configuration of the Service. Upon termination or expiration of the Agreement, Customer may retrieve or delete all Customer Personal Data as set forth in the Agreement. Any Customer Personal Data not deleted by Customer shall be deleted by Orderly promptly upon the later of (i) expiration or termination of the Agreement and (ii) expiration of any post-termination “retrieval period” set forth in the Agreement.

(f) Categories of Data Subjects: The categories of Data Subjects to which Customer Personal Data relate are determined and controlled by Customer in its sole discretion, and may include, but are not limited to:

(i) Prospects, customers, business partners and vendors of Customer (who are natural persons);

(ii) Employees or contact persons of Customer’s prospects, customers, business partners and vendors; and/or

(iii) Employees, agents, advisors, freelancers of Customer (who are natural persons).

(g) Categories of Personal Data: The types of Customer Personal Data are determined and controlled by Customer in its sole discretion, and may include, but are not limited to:

(i) Identification and contact data (name, address, title, contact details);

(ii) Financial information (credit card details, account details, payment information);

(iii) Employment details (employer, job title, geographic location, area of responsibility); and/or

(iv) IT information (IP addresses, cookies data, location data).

(h) Special Categories of Personal Data (if applicable): Subject to any applicable restrictions and/or conditions in the Agreement or Documentation, Customer may also include “special categories of personal data” or similarly sensitive Personal Data (as described or defined in Data Protection Laws) in Customer Personal Data, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Customer Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data Processed for the purposes of uniquely identifying a natural person, data concerning health and/or data concerning a natural person’s sex life or sexual orientation.

  1. Sub-Processing.

4.1. Authorized Sub-Processors. Customer provides Orderly with a general authorization to engage Sub-processors, subject to Section 4.3 (Changes to Sub-processors), as well as Orderly’s current Sub-processors listed at www.Orderly.com/legal/Orderly-sub-processors (“Sub-processor Site”) as of the effective date of this DPA and members of the Orderly Group.

4.2. Sub-Processor Obligations. Orderly shall: (i) enter into a written agreement with each Sub-processor imposing data protection obligations no less protective of Customer Personal Data as Orderly’s obligations under this DPA to the extent applicable to the nature of the services provided by such Sub-processor; and (ii) remain liable for each Sub-processor’s compliance with the obligations under this DPA. Upon written request, and subject to any confidentiality restrictions, Orderly shall provide Customer all relevant information it reasonably can in connection with its applicable Sub-processor agreements where required to satisfy Customer’s obligations under Data Protection Laws.

4.3. Changes to Sub-Processors. Orderly shall make available on its Sub-processor Site a mechanism to subscribe to notifications of new Sub-processors. Orderly shall provide such notification to those emails that have subscribed at least fourteen (14) days in advance of allowing the new Sub-processor to Process Customer Personal Data (the “Objection Period”). During the Objection Period, objections (if any) to Orderly’s appointment of the new Sub-processor must be provided to Orderly in writing and based on reasonable grounds relating to data protection. In such event, the Parties will discuss those objections in good faith with a view to achieving resolution. If it can be reasonably demonstrated to Orderly that the new Sub-processor is unable to Process Customer Personal Data in compliance with the terms of this DPA and Orderly cannot provide an alternative Sub-processor, or the Parties are not otherwise able to achieve resolution as provided in the preceding sentence, Customer, as its sole and exclusive remedy, may provide written notice to Orderly terminating the Order Form(s) with respect only to those aspects of the Services which cannot be provided by Orderly without the use of the new Sub-processor. Orderly will refund Customer any prepaid unused fees of such Order Form(s) following the effective date of termination with respect to such terminated Services.

  1. Security.

5.1. Security Measures. Orderly shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data in accordance with Orderly’s Security Addendum found at www.Orderly.com/legal (“Security Addendum”). Orderly may review and update its Security Addendum from time to time, provided that any such updates shall not materially diminish the overall security of the Services or Customer Personal Data.

5.2. Confidentiality of Processing. Orderly shall ensure that any person who is authorized by Orderly to Process Customer Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

5.3. No Assessment of Customer Personal Data by Orderly. Orderly shall have no obligation to assess the contents or accuracy of Customer Personal Data, including to identify information subject to any specific legal, regulatory, or other requirement. Customer is responsible for reviewing the information made available by Orderly relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws.

  1. Customer Audit Rights.

6.1. Upon written request and at no additional cost to Customer, Orderly shall provide Customer, and/or its appropriately qualified third-party representative (collectively, the “Auditor“), access to reasonably requested documentation evidencing Orderly’s compliance with its obligations under this DPA in the form of the relevant audits or certifications listed in the Security Addendum, such as (i) Orderly’s ISO 27001, HITRUST CSF, and PCI-DSS third-party certifications, (ii) Orderly’s SOC 2 Type II audit reports, SOC 1 Type II audit reports, HIPAA Compliance Report for Business Associates, and (iii) Orderly’s most recently completed industry standard security questionnaire, such as a SIG or CAIQ (collectively, “Reports”).

6.2. Customer may also send a written request for an audit of Orderly’s applicable controls, including inspection of its facilities. Following receipt by Orderly of such request, Orderly and Customer shall mutually agree in advance on the details of the audit, including the reasonable start date, scope and duration of, and security and confidentiality controls applicable to, any such audit. Orderly may charge a fee (rates shall be reasonable, taking into account the resources expended by Orderly) for any such audit. The Reports, audit, and any information arising therefrom shall be considered Orderly’s Confidential Information and may only be shared with a third party (including a Third-Party Controller) with Orderly’s prior written agreement.

6.3. Where the Auditor is a third-party, the Auditor may be required to execute a separate confidentiality agreement with Orderly prior to any review of Reports or an audit of Orderly, and Orderly may object in writing to such Auditor, if in Orderly’s reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of Orderly. Any such objection by Orderly will require Customer to either appoint another Auditor or conduct the audit itself. Any expenses incurred by an Auditor in connection with any review of Reports or an audit shall be borne exclusively by the Auditor. For clarity, the exercise of audit rights under the SCCs shall be as described in this Section 6 (Customer Audit Rights) and Customer agrees these rights are carried out on behalf of Customer and all relevant Third-Party Controllers, subject to the confidentiality and non-use restrictions of the Agreement.

  1. Data Transfers.

7.1. Hosting and Processing Locations. Orderly will only host Customer Personal Data in the region(s) offered by Orderly and selected by Customer on an Order Form or as Customer otherwise configures via the Services (the “Hosting Region”). Customer is solely responsible for the regions from which its Users access the Customer Personal Data, for any transfer or sharing of Customer Personal Data by Customer or its Users and for any subsequent designation of other Hosting Regions (either for the same Account, a different Account, or a separate Service). Once Customer has selected a Hosting Region, Orderly will not Process Customer Personal Data from outside the Hosting Region except as reasonably necessary to provide the Services procured by Customer, or as necessary to comply with the law or binding order of a governmental body.

7.2. Transfer Mechanisms. For any transfers by Customer of Customer Personal Data from the European Economic Area and its member states, United Kingdom and/or Switzerland (collectively, “Restricted Countries”) to Orderly in a country which does not ensure an adequate level of protection (within the meaning of and to the extent governed by the applicable Data Protection Laws of the Restricted Countries) (collectively, “Third Country”), such transfers shall be governed by a valid mechanism for the lawful transfer of Customer Personal Data recognized under applicable Data Protection Laws, such as those directly below in 7.2.1. For clarity, for transfers from the United Kingdom and Switzerland, references in the SCCs shall be interpreted to include applicable terminology for those jurisdictions (e.g., “Member State” shall be interpreted to mean “United Kingdom” for transfers from the United Kingdom).

7.2.1. SCCs. Each party agrees to abide by and transfer Customer Personal Data from the Restricted Countries in accordance with the SCCs, which are incorporated into this DPA by reference. Each party is deemed to have executed the SCCs by entering into this DPA.

(a) The below shall apply to the SCCs, including the election of specific terms and/or optional clauses as described in more detail in (i)-(x) below, and any optional clauses not expressly selected are not included:

(i) The Module 2 terms apply to the extent Customer is a Data Controller and the Module 3 terms apply to the extent Customer is a Data Processor of the Customer Personal Data;

(ii) The optional Clause 7 in Section I of the SCCs is incorporated, and Authorized Affiliates may accede to this DPA and the SCCs under the same terms and conditions as Customer, subject to Section 3.3 of this DPA via mutual agreement of the Parties;

(iii) For purposes of Clause 9 of the SCCs, Option 2 (“General written authorization”) is selected and the process and time period for the addition or replacement of Sub-processors shall be as described in Section 4 (Sub-processing) of this DPA;

(iv) For purposes of Clause 13 and Annex 1.C of the SCCs, Customer shall maintain accurate records of the applicable Member State(s) and competent supervisory authority, which shall be made available to Orderly on request;

(v) For purposes of Clause 14(c), Customer may subscribe to the Sub-processor Site to receive notifications regarding updates to Orderly’s overview of relevant laws and practices of Third Countries;

(vi) For purposes of Clause 17 and Clause 18 of the SCCs, the Member State for purposes of governing law and jurisdiction shall be the Netherlands;

(vii) For purposes of Annex 1.A, the “data importer” shall be Orderly and the “data exporter” shall be Customer and any Authorized Affiliates that have acceded to the SCCs pursuant to this DPA;

(viii) For purposes of Annex 1.B, the description of the transfer is as described in Section 3.5 (Details of Data Processing) of this DPA;

(ix) For purposes of Annex 2, the technical and organization measures are as follows: (i) Those measures implemented by Orderly shall be as described in Section 5.1 (Security Measures) of this DPA; and (ii) Those measures that can be selected or configured by Customer, including appropriate controls for “special categories of data”, shall be as further described in Orderly’s Documentation; and

(x) The Sub-processors for Annex III shall be as described in Section 4.1 (Authorized Sub-processors) of this DPA.

(b) Binding Corporate Rules for Processors (“BCRs”): Notwithstanding the foregoing, if Orderly has adopted BCRs for Processors that cover the transfer of Customer Personal Data to a Third Country, then such BCRs shall govern the transfer of Customer Personal Data.

  1. Security Incident Response.

8.1. Security Incident Reporting.If Orderly becomes aware of a Security Incident, Orderly shall notify Customer without undue delay, and in any case, where feasible, notify Customer within seventy-two (72) hours after becoming aware. Orderly’s notification shall be sent to the email registered by Customer within the Service for such purposes, and where no such email is registered, Customer acknowledges that the means of notification shall be at Orderly’s reasonable discretion and Orderly’s ability to timely notify shall be negatively impacted. Orderly shall promptly take reasonable steps to contain, investigate, and mitigate any Security Incident.

8.2. Security Incident Communications. Orderly shall provide Customer timely information about the Security Incident, including, but not limited to, the nature and consequences of the Security Incident, the measures taken and/or proposed by Orderly to mitigate or contain the Security Incident, the status of Orderly’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned. Notwithstanding the foregoing, Customer acknowledges that because Orderly personnel do not have visibility to the content of Customer Personal Data, it will be unlikely that Orderly can provide information as to the particular nature of the Customer Personal Data, or where applicable, the identities, number or categories of affected Data Subjects. Communications by or on behalf of Orderly with Customer in connection with a Security Incident shall not be construed as an acknowledgment by Orderly of any fault or liability with respect to the Security Incident.

  1. Cooperation.

9.1. Data Subject Requests. Orderly shall promptly notify Customer if Orderly receives a request from a Data Subject that identifies Customer Personal Data or otherwise identifies Customer, including where the Data Subject seeks to exercise any of its rights under applicable Data Protection Laws (collectively, “Data Subject Request”). The Service provides Customer with a number of controls that Customer may use to assist it in responding to Data Subject Requests and Customer will be responsible for responding to any such Data Subject Requests. To the extent Customer is unable to access the relevant Customer Personal Data within the Services using such controls or otherwise, Orderly shall (upon Customer’s written request and taking into account the nature of the Processing) provide commercially reasonable cooperation to assist Customer in responding to Data Subject Requests.

9.2. Data Protection Impact Assessments. Orderly shall provide reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws, so long as Customer does not otherwise have access to the relevant information.

9.3. Government, Law Enforcement, and/or Third Party Inquiries. If Orderly receives a demand to retain, disclose, or otherwise Process Customer Personal Data for any third party, including, but not limited to law enforcement or a government authority (“Third-Party Demand”), then Orderly shall attempt to redirect the Third-Party Demand to Customer. Customer agrees that Orderly can provide information to such third-party as reasonably necessary to redirect the Third-Party Demand. If Orderly cannot redirect the Third-Party Demand to Customer, then Orderly shall, to the extent legally permitted to do so, provide Customer reasonable notice of the Third-Party Demand as promptly as feasible under the circumstances to allow Customer to seek a protective order or other appropriate remedy. This section does not diminish Orderly’s obligations under the SCCs with respect to access by public authorities.

  1. Relationship with the Agreement.

10.1. The Parties agree that this DPA shall replace and supersede any existing data processing addendum, attachment, exhibit or standard contractual clauses that Orderly and Customer may have previously entered into in connection with the Services. Orderly may update this DPA from time to time, with such updated version posted to www.Orderly.com/legal, or a successor website designated by Orderly; provided, however, that no such update shall materially diminish the privacy or security of Customer Personal Data.

10.2. Except as provided by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with the Processing of Customer Personal Data. Notwithstanding the foregoing, and solely to the extent applicable to any Customer Personal Data comprised of patient, medical or other protected health information regulated by HIPAA or any similar U.S. federal or state health care laws, rules or regulations (“HIPAA Data”), if there is any conflict between this DPA and a business associate agreement between Customer and Orderly (“BAA”), then the BAA shall prevail solely with respect to such HIPAA Data.

10.3. Notwithstanding anything to the contrary in the Agreement or this DPA, each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or relating to this DPA, the SCCs, and any other data protection agreements in connection with the Agreement (if any), shall be subject to any aggregate limitations on liability set out in the Agreement. Without limiting the Parties’ obligations under the Agreement, each party agrees that any regulatory penalties incurred by one party (the “Incurring Party”) in relation to the Customer Personal Data that arise as a result of, or in connection with, the other party’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce the Incurring Party’s liability under the Agreement as if it were liability to the other party under the Agreement.

10.4. In no event shall this DPA benefit or create any right or cause of action on behalf of a third party (including a Third-Party Controller), but without prejudice to the rights or remedies available to Data Subjects under Data Protection Laws or this DPA (including the SCCs).

10.5. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement