The parties have agreed to enter into this DPA to ensure that adequate safeguards are put in place with respect to the protection of such Personal Data as required by EU Data Protection Laws.
If the Customer entity is not a party to the Main Agreement directly with forms2, but is instead a customer indirectly via an authorised vendor of forms2 services, this DPA is not valid and is not legally binding. Such entity should contact the authorised vendor to discuss whether any amendment to its agreement with that vendor may be required.
In the course of providing the Service to the Customer pursuant to the Main Agreement, forms2 may Process Personal Data on behalf of the Customer. forms2 agrees to comply with the following provisions with respect to any Personal Data submitted by or for the Customer to forms2 or collected and processed by or for the Customer using forms2’s services.
The parties agree that the obligations under this DPA that are specific to the GDPR shall not apply until the GDPR has come into full force and effect.
1.1. The following definitions are used in this DPA:
1.2 An entity “Controls” another entity if it: (a) holds a majority of the voting rights in it; (b) is a member or shareholder of it and has the right to remove a majority of its board of directors or equivalent managing body; (c) is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (d) has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are treated as being in “Common Control” if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.
2.1 The type of Personal Data processed pursuant to this DPA and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are described in Annex 1.
2.2 Each party warrants in relation to Personal Data that it will comply (and will procure that any of its personnel comply and use commercially reasonable efforts to procure that its sub-processors’ comply), with EU Data Protection Laws. As between the parties, the Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Customer acquired Personal Data.
2.3 In respect of the parties’ rights and obligations under this DPA regarding the Personal Data, the parties hereby acknowledge and agree that the Customer is the data controller and forms2 is the data processor, and accordingly forms2 agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA.
2.5 Each party shall appoint an individual within its organization authorised to respond from time to time to enquiries regarding the Personal Data and each party shall deal with such enquiries promptly.
3.1 With respect to all Personal Data, forms2 warrants that it shall:
(a) only process Personal Data in order to provide the Service, and shall act only in accordance with: (i) this DPA, (ii) the Customer’s written instructions as represented by the Main Agreement and this DPA, and (iii) as required by applicable laws;
(b) as soon as reasonably practicable upon becoming aware, inform the Customer if, in forms2’s opinion, any instructions provided by the Customer under clause 3.1(a) infringe the GDPR;
(c) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, without limitation, the security measures set out in Annex 3;
(d) take reasonable steps to ensure that only authorised personnel have access to such Personal Data and that any persons whom it authorises to have access to the Personal Data are under obligations of confidentiality;
(e) as soon as reasonably practicable upon becoming aware, notify the Customer of any breach of security leading to the accidental loss, destruction or damage or unlawful processing, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by forms2, its sub-processors, or any other identified or unidentified third party (a “Security Breach”);
(f) promptly provide the Customer with reasonable cooperation and assistance in respect of a Security Breach and all reasonable information in forms2’s possession concerning such Security Breach insofar as it affects the Customer, including the following to the extent then known:
(i) the possible cause and consequences for the Data Subjects of the Security Breach;
(ii) the categories of Personal Data involved;
(iii) a summary of the possible consequences for the relevant data subjects;
(iv) a summary of the unauthorised recipients of the Personal Data; and
(v) the measures taken by forms2 to mitigate any damage and adverse effects ;
(g) not make any public announcement about a Security Breach (a “Breach Notice”) without the prior written consent of the Customer, unless required by applicable law;
(h) promptly notify the Customer if it receives a request from a data subject to access, rectify or erase that individual’s Personal Data, or if a data subject objects to the processing of, or makes a data portability request in respect of, such Personal Data (each a “Data Subject Request”). forms2 shall not respond to a Data Subject Request without the Customer’s prior written consent except to confirm that such request relates to the Customer, to which the Customer hereby agrees. To the extent that the Customer does not have the ability to address a Data Subject Request, then upon the Customer’s request forms2 shall provide reasonable assistance to the Customer to facilitate such Data Subject Request to the extent able and in line with applicable law. The Customer shall cover all costs incurred by forms2 in connection with its provision of such assistance;
(i) other than to the extent required to comply with applicable law, as soon as reasonably practicable following termination or expiry of the Main Agreement or completion of the Service, forms2 will delete all Personal Data (including copies thereof) processed pursuant to this DPA;
j) taking into account the nature of processing and the information available to forms2, provide such assistance to the Customer as the Customer reasonably requests in relation to forms2’s obligations under EU Data Protection Laws with respect to:
(i) data protection impact assessments (as such term is defined in the GDPR);
(ii) notifications to the supervisory authority under EU Data Protection Laws and/or communications to data subjects by the Customer in response to any Security Breach; and
(iii) the Customer’s compliance with its obligations under the GDPR with respect to the security of processing; provided that the Customer shall cover all costs incurred by forms2 in connection with its provision of such assistance.
The Controller represents and warrants that it shall comply with the terms of the Customer Terms, this DPA and all applicable data protection laws.
The Controller represents and warrants that it has obtained any and all necessary permissions and authorisations necessary to permit the Processor, its Subsidiaries and Sub-Processors, to execute their rights or perform their obligations under this DPA.
The Controller is responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this DPA and the Customer Terms.
All Subsidiaries of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
The Controller has their own obligations to implement their own appropriate technical and organisational procedures to protect Personal 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. The Controller shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(i) the pseudonymisation and encryption of Personal Data;
(ii) the ability to ensure the on-going confidentiality, integrity, availability and resilience of processing systems and services;
(iii) the ability to restore the availability and access to Personal 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 organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
The Controller shall take steps to ensure that any natural person acting under the authority of the Controller who has access to Personal Data does not process the Personal Data except on instructions from the Controller.
The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after termination of the Agreement. The Processor will process the request to the extent it is lawful, and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data from the Processor, may result in additional fees. In such case, the Processor will notify the Controller of such fees in advance unless otherwise agreed.
5.1 The Customer grants a general authorisation to forms2 to appoint third party data center operators, and outsourced marketing, business, engineering and customer support providers as sub-processors to support the performance of the Service.
5.2 forms2 shall maintain a list of current sub-processors for the Service, including a history of revisions, the identities of those sub-processors and their country of location at https://forms2mobile.com/sub-processors. Upon the appointment of new or replacement of sub-processor(s), forms2 shall update the list of current sub-processors and shall send email notification to the Customer prior to the new or replacement sub-processor(s) processing any Personal Data in connection with the provision of the Service.
(a) If the Customer has a reasonable objection to any new or replacement sub-processor, it shall notify forms2 of such objections in writing within ten (10) days of the notification and the parties will seek to resolve the matter in good faith. If forms2 is reasonably able to provide the Service to the Customer in accordance with the Main Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this clause 5.2 in respect of the proposed use of the sub-processor. If forms2 requires use of the sub-processor in its discretion and is unable to satisfy the Customer as to the suitability of the sub-processor or the documentation and protections in place between forms2 and the sub-processor within ninety (90) days from the Customer’s notification of objections, the Customer may within thirty (30) days following the end of the ninety (90) day period referred to above, terminate the applicable Service subscription(s) with at least thirty (30) days written notice, solely with respect to the service(s) to which the proposed new sub-processor’s processing of Personal Data relates. If the Customer does not provide a timely objection to any new or replacement sub-processor in accordance with this clause 5.2, the Customer will be deemed to have consented to the sub-processor and waived its right to object. forms2 may use a new or replacement sub-processor whilst the objection procedure in this clause 5.2 is in process.
5.3 forms2 will ensure that any sub-processor it engages to provide an aspect of the Service on its behalf in connection with this DPA does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on forms2 in this DPA (the “Relevant Terms”).
6.1 forms2 shall, in accordance with EU Data Protection Laws, make available to the Customer such information in forms2’s possession or control as the Customer may reasonably request with a view to demonstrating forms2’s compliance with the obligations of data processors under EU Data Protection Law in relation to its processing of Personal Data.
6.2 The Customer may exercise its right of audit under EU Data Protection Laws in relation to Personal Data, through forms2 providing:
(a) an audit report not older than eighteen (18) months, prepared by an independent external auditor demonstrating that forms2’s technical and organisational measures are sufficient and in accordance with an accepted industry audit standard; and
6.3 Any audit conducted under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in the Agreement. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may at its own expense conduct a more extensive audit which will be: (i) limited in scope to matters specific to the Controller and agreed in advance with the Processor; (ii) carried out during UK business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iii) conducted in a way which does not interfere with the Processor’s day-to-day business. The Processor may charge a fee (based on its reasonable time and costs) for assisting with any audit. The Processor will provide the Controller with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.
This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
7.1 To the extent any processing of Personal Data by forms2 takes place in any country outside the EEA (except if in an Adequate Country), the parties agree that the standard contractual clauses approved by the EU authorities under EU Data Protection Laws and set out in Annex 2 will apply in respect of that processing, and forms2 will comply with the obligations of the ‘data importer’ in the standard contractual clauses and the Customer will comply with the obligations of the ‘data exporter’.
7.2 The Customer acknowledges and accepts that the provision of the Service under the Main Agreement may require processing of Personal Data by sub-processors in countries outside the EEA.
7.3 If, in the performance of this DPA, forms2 transfers any Personal Data to a sub-processor located outside of the EEA (without prejudice to clause 4), forms2 shall in advance of any such transfer ensure that a legal mechanism to achieve adequacy in respect of that processing is in place, such as:
(a) the requirement for forms2 to execute or procure that the sub-processor execute to the benefit of the Customer standard contractual clauses approved by the EU authorities under EU Data Protection Laws and set out in Annex 2;
(b) the requirement for the sub-processor to be certified under the EU-U.S. Privacy Shield Framework; or
(c) the existence of any other specifically approved safeguard for data transfers (as recognised under EU Data Protection Laws) and/or a European Commission finding of adequacy.
7.4 The following terms shall apply to the standard contractual clauses set out in Annex 2:
(a) The Customer may exercise its right of audit under clause 6.1(f) of the standard contractual clauses as set out in, and subject to the requirements of, clause 6.2 of this DPA; and
(b) forms2 may appoint sub-processors as set out, and subject to the requirements of, clauses 4 and 7.3 of this DPA.
8.1 This DPA is without prejudice to the rights and obligations of the parties under the Main Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Main Agreement, the terms of this DPA shall prevail so far as the subject matter concerns the processing of Personal Data.
8.2 forms2 liability under or in connection with this DPA (including under the standard contractual clauses set out in Annex 2) is subject to the limitations on liability contained in the Main Agreement.
8.3 This DPA does not confer any third-party beneficiary rights, it is intended for the benefit of the parties hereto and their respective permitted successors and assigns only, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
8.4 With the exemption of clauses 7 and 9 in Annex 2, this DPA and any action related thereto shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to any conflicts of laws principles. With the exemption of the jurisdiction clauses in Annex 2, the parties consent to the personal jurisdiction of, and venue in, the courts of England and Wales.
8.5 This DPA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA. Each party represents and warrants to the other that the execution and delivery of this DPA, and the performance of such party’s obligations hereunder, have been duly authorised and that this DPA is a valid and legally binding agreement on each such party, enforceable in accordance with its terms.
This Annex provides details of the Processing of Personal Data as required by Article 28(3) GDPR.
(a) The personal data comprises: in relation to visitors of the Customer’s online properties identification data, professional life data, personal life data, connection data, or localisation data (including IP addresses). The Customer, its online visitors and/or other partners may also upload content to the Customer’s online properties which may include personal data and special categories of data, the extent of which is determined and controlled by the Customer in its sole discretion.
Such special categories of data include, but may not be limited to, information revealing racial or ethnic origins, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning an individual’s health or sexual and gender orientation.
(b) The duration of the processing will be: until the earliest of (i) expiry/termination of the Main Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Main Agreement (to the extent applicable);
(c) The processing will comprise: Only processing necessary to provide the Service to the Customer, pursuant to the Main Agreement;
(d) The purpose(s) of the processing is/are: necessary for the provision of the Service;
(e) Personal data may concern the following data subjects:
The European Commission decision 2010/87/EU sets out the following standard contractual clauses for the transfer of personal data to data processors established in third countries which do not ensure an adequate level of data protection.
Both parties have agreed on the following Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
The data exporter agrees and warrants:
The data importer agrees and warrants:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the laws of the Member State in which the data exporter is established.
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law.
Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
This Appendix forms part of the Clauses and is agreed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is:
the (i) legal entity that has created an account with 2m Networks Ltd (T/A “forms2”) for the provision of the Service, and executed the Clauses as a data exporter and, (ii) all affiliates of such entity established within the EEA, which have purchased services from forms2 or its Affiliates.
The data importer is: forms2
which processes Personal Data upon the instruction of the data exporter in accordance with the terms of the Main Agreement between the data exporter and forms2.
The personal data transferred concern the following categories of data subjects:
The data exporter may submit Personal Data to forms2 and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Categories of data
The personal data transferred concern the following categories of data:
The data exporter may submit Personal Data to forms2 and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data:
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data:
The data exporter may submit special categories of data to forms2 and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion. Such special categories of data include, but may not be limited to, Personal Data with information revealing racial or ethnic origins, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning an individual’s health or sexual and gender orientation.
The personal data transferred will be subject to the following basic processing activities:
The objective of the processing of Personal Data by forms2 is to provide the Service, pursuant to the Main Agreement.
This Appendix forms part of the Clauses and is agreed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
See Annex 3
forms2 (the data importer) currently observes the security practices described in this Annex 3. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, forms2 may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices.
Access Control: Preventing Unauthorised Service Access
Access Control: Preventing Unauthorised Service Use
forms2 implements industry standard access controls and detection capabilities for the internal networks that support its products.
Access Control: Limitations of Privilege & Authorisation Requirements