Data Processing Terms

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. Definitions

1.1. The following definitions are used in this DPA:

1. a) “Adequate Country” means a country or territory that is recognised under EU Data Protection Laws as providing adequate protection for Personal Data;
2. b) “Affiliate” means, with respect to a party, any corporate entity that, directly or indirectly, Controls, is Controlled by, or is under Common Control with such party (but only for so long as such Control exists);
3. c) “forms2 Group” means forms2 and any of its Affiliates;
4. d) “Customer Group” means the Customer and any of its Affiliates established and/or doing business in the EEA, or UK;
5. e) “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR ;
6. f) “GDPR” means the General Data Protection Regulation (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-flow of data);
7. g) “Personal Data” means all data which is defined as ‘personal data’ under EU Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to forms2, and accessed, stored or otherwise processed by forms2 as a data processor as part of its provision of the Service to the Customer; and
8. h) “Processing”, “data controller”, “data subject”, “supervisory authority” and “data processor” shall have the meanings ascribed to them in EU Data Protection Laws.

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. Status of the parties

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.

2.4 Where and to the extent that forms2 processes data which is defined as ‘personal data’ under EU Data Protection Laws as a data controller as set out in the forms2 Privacy Policy (available at https://forms2mobile.com/privacy-policy), forms2 will comply with applicable EU Data Protection Laws in respect of that processing.

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. forms2 obligations (Processor)

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.

4. Customer Obligations (Controller)

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. Sub-processing

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. Audit and records

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

1. b) additional information in forms2’s possession or control to an EU supervisory authority when it requests or requires additional information in relation to the processing of Personal Data carried out by forms2 under this DPA.

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. Data transfers

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. General

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.