Effective October 26, 2021
The Parties agree as follows:
1.1 For the purposes of this DPA, the following expressions bear the following meanings unless the context otherwise requires:
“Applicable Data Protection Laws” means, in respect of a Party, any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument relating to the protection of Personal Data, including:
(a) the Directive 2002/58/EC (as amended) (the “e-Privacy Directive”), the e-Privacy Regulation 2017/003 (COD) (the “e-Privacy Regulation”), and any laws and regulations implementing these;
(b) the Directive 95/46/EC (as amended) (the “Data Protection Directive”), the Regulation 2016/679 (the “GDPR”), and any laws and regulations implementing these; and
(c) the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 (2018) et seq. (“CCPA”) and any laws and regulations implementing the CCPA;
(in each case as amended, consolidated, re-enacted or replaced from time to time).
“Data Subject”, “Process”, “Processed” and “Processing” shall each have the meaning as set out in the GDPR;
“EU Data Protection Laws” means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument relating to the protection of personal data in force in the territory of the European Union, including the Data Protection Directive, the GDPR, the e-Privacy Directive and the e-Privacy Regulation;
“Model Clauses” mean the Standard Contractual Clauses (Controller to Processor) as set out in the European Commission Decision of 5 February 2010 (C (2010) 593);
“Personal Data” means any information that is Processed in connection with the Services (i) relating to an identified or identifiable natural person; or (ii) that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, regardless of the media in which it is maintained, that may be: (A) Processed at any time by the Data Processor in anticipation of, in connection with or incidental to the performance of this DPA or the provision of Services; or (B) derived by the Data Processor from such information. Personal Data includes, but is not limited to, the data elements listed in section 140(o)(1)(A)-(K) of the CCPA, if any such data element identifies, relates to, describes, is capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular individual or household.
“Regulator” means the data protection supervisory authority which has jurisdiction over a Data Controller’s Processing of Personal Data;
“Third Countries” means all countries outside of the scope of the data protection laws of the European Economic Area (“EEA”) and the United Kingdom, excluding countries approved as providing adequate protection for Personal Data by the European Commission from time to time, which at the date of this DPA include Andorra, Argentina, Canada (commercial organizations only), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, Switzerland, Uruguay and the United States (limited to processing in accordance with the Model Clauses).
“User Data” means all the electronic data or information, regardless of the format, that is (i) uploaded or inputted to the Website; (ii) generated or created by any electronic data or information that User uploads or inputs to the Website in order to use the Services; or (iii) provided by User to Hookdeck in connection with the Website or the Services.
2.1 The Parties acknowledge and agree that with regard to the Processing of Personal Data, User is the “Data Controller”, Hookdeck is the “Data Processor” and that Hookdeck will engage “Sub-Processors” pursuant to the requirements set forth in Section 8 below.
2.2 The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 “Processing Details” of this DPA.
2.3 The Data Processor shall only process the Personal Data on behalf of and in accordance with documented instructions from the Data Controller. The Parties agree that this DPA is User’s complete and final instructions to Hookdeck in relation to processing of User Data. The Data Controller shall ensure that its instructions comply with all Applicable Data Protection Laws, and that the Processing of Personal Data in accordance with the Data Controller’s instructions will not cause the Data Processor to be in breach of the Applicable Data Protection Laws. The Data Controller shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Data Controller acquired Personal Data and shall establish the legal basis for Processing under Applicable Data Protection Laws.
2.4 The Personal Data that the Data Controller discloses to the Data Processor is provided to the Data Processor for a “business purpose” (as defined in the CCPA).
2.5 The Data Processor shall not (i) “sell” (as defined in the CCPA) Personal Data; or (ii) retain, use or disclose Personal Data (a) for any purpose other than for the specific purpose of providing the Services; or (b) outside of the direct business relationship between the Parties.
2.6 The Data Processor certifies that it understands and will comply with the requirements and restrictions set forth in this DPA.
2.7 Each Party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including Applicable Data Protection Laws.
3.1 The Data Processor shall ensure that its personnel authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The Data Processor shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
4.1 The Data Processor shall, to the extent legally permitted, promptly notify the Data Controller if it receives a request from a Data Subject for access to its own Personal Data, or for the rectification or erasure of such Personal Data or any other request or query from a Data Subject relating to its own Personal Data (including Data Subjects’ exercising rights under Applicable Data Protection Laws, such as rights of objection, restriction of processing, data portability or the right not to be subject to automated decision making) (a “Data Subject Request”). Taking into account the nature of the Processing, the Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to a Data Subject Request under Applicable Data Protection Laws. In addition, to the extent the Data Controller, in its use of the Services, does not have the ability to address a Data Subject Request, the Data Processor shall, upon the Data Controller’s request, provide commercially reasonable efforts to assist the Data Controller in responding to such Data Subject Request, to the extent the Data Processor is legally permitted to do so and the response to such Data Subject Request is required under Applicable Data Protection Laws. To the extent legally permitted, the Data Controller shall be responsible for any costs arising from the Data Processor’s provision of such assistance.
5.1 The Data Processor shall promptly notify the Data Controller about any legally binding request for disclosure of Personal Data by a law enforcement authority, unless otherwise prohibited from doing so.
6.1 The Data Processor shall implement and maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data.
7.1 The Data Processor shall take reasonable efforts to make available to the Data Controller all information necessary to demonstrate compliance with the obligations laid down in this DPA and Applicable Data Protection Laws. The Data Processor shall assist the Data Controller in complying with the Data Controller’s obligations under Applicable Data Protection Laws, subject to the limitations set froth elsewhere in this DPA.
7.2 Upon the Data Controller’s request, the Data Processor shall provide the Data Controller with reasonable cooperation and assistance needed to fulfil the Data Controller’s obligation under the GDPR to carry out a data protection impact assessment related to the Data Controller’s use of the Website and Services, to the extent the Data Controller does not otherwise have access to the relevant information, and to the extent such information is available to the Data Processor. The Data Processor shall provide reasonable assistance to the Data Controller in the cooperation or prior consultation with the Regulator in the performance of its tasks relating to Section 7 of this DPA, to the extent required under the GDPR and Applicable Data Protection Laws.
8.1 The Data Controller agrees that the Data Processor may engage Sub-Processors to Process Personal Data. The Sub-Processors currently engaged by Hookdeck and authorized by User are listed in Schedule 2 “List of Sub-Processors”.
8.2 The Data Processor shall ensure that such Sub-Processor has entered into a written agreement requiring the Sub-Processor to abide by terms no less protective than those provided in this DPA. The Data Processor shall be liable for the acts and omissions of any Sub-Processors to the same extent as if the acts or omissions were performed by the Data Processor.
8.3 The Data Processor shall make available to the Data Controller a list of Sub-Processors authorized to Process Personal Data (“Sub-Processor List”, currently found in Schedule 2) and provide the Data Controller with a mechanism to obtain notice of any updates to the Sub-Processor List. Notification of a new Sub-Processor shall be issued prior to such new Sub-Processor being authorised to Process Personal Data in connection with the Agreement.
8.4 The Data Controller may object to the Data Processor’s use of a new Sub-Processor where there are reasonable grounds to believe that the new Sub-Processor will be unable to comply with the terms of this DPA. If the Data Controller objects to the Data Processor’s use of a new Sub-Processor, the Data Controller shall notify the Data Processor promptly in writing within ten (10) days after notification regarding such Sub-Processor. The Data Controller’s failure to object in writing within such time period shall constitute approval to use the new Sub-Processor. The Data Controller acknowledges that the inability to use a particular new Sub-Processor may result in delay in receiving the Services, inability to receive the Services or increased fees. The Data Processor will notify the Data Controller in writing of any change to the Services or fees that would result from the Data Processor’s inability to use a New Sub-Processor to which the Data Controller has objected. If the Data Controller would like to continue using the Services, the Data Processor shall sign an acknowledgment evidencing its acceptance of any change to the Services or fees resulting from the Data Processor’s inability to use a New Sub-Processor to which the Data Controller has objected. The Data Processor shall have a right to terminate its provision of Services to the Data Controller if the Data Controller unreasonably objects to a Sub-Processor, or does not agree to a written acknowledgement implementing changes in fees or Services resulting from the inability to use the Sub-Processor at issue.
9.1 The Data Processor shall, at the choice of the Data Controller, delete or return all the Personal Data to the Data Controller at the end of the provision of the Services relating to Processing, and delete existing copies of the Personal Data unless prohibited by law or the order of a governmental or regulatory body that could subject the Data Processor to liability.
9.2 The Data Controller acknowledges and agrees that the Data Processor shall have no liability for any losses incurred by the Data Controller arising from or in connection with the Data Processor’s inability to provide the Services as a result of the Data Processor complying with a request to delete or return Personal Data made by the Data Controller pursuant to Section 9.1.
10.1 In the event there is, or the Data Processor reasonably believes that there is, any improper, unauthorized or unlawful access to, use of, or disclosure of, or any other compromise which affects the availability, integrity or confidentiality of Personal Data which is Processed by the Data Processor under or in connection with this DPA (“Data Breach”), then upon becoming aware of such Data Breach, the Data Processor shall promptly notify the Data Controller and provide the Data Controller with the following information as it becomes available:
(i) a description of the nature of the Data Breach, including where possible the categories and approximate number of Data Subjects concerned;
(ii) the name and contact details of the Data Processor contact from whom more information can be obtained; and
(iii) a description of the measures taken or proposed to be taken to address the Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
10.2 The Parties agree to coordinate in good faith on developing the content of any related public statements and any required notices to the affected Data Subjects and/or the relevant Regulators in connection with a Data Breach, provided that nothing in this Section 10.2 shall prevent either Party from complying with its obligations under Applicable Data Protection Laws.
11.1 The Data Processor will only process data in, or transfer Personal Data to, a Third Country where such processing or transfer takes place based and in compliance with the Model Clauses, with the processing details that comprise Appendix 1 to the Model Clauses, and the technical and organizational security measures that comprise Appendix 2 to the Model Clauses. The Data Processor shall comply with the obligations of the data importer and the Data Controller shall comply with the obligations of the data exporter as set out in the Model Clauses.
11.2 Where the Data Processor appoints an affiliate or third-party Sub-Processor to process Personal Data in a Third Country, the Data Processor must ensure that such processing takes place in accordance with the requirements of the Applicable Data Protection Laws. The Parties agree that Personal Data may be transferred to an affiliate or third-party Sub-Processor in the United States that is certified to process such data under the Privacy Shield or, in the case where the Privacy Shield is invalid, that agrees to process Personal Data according to the Model Clauses.
12.1 This DPA will terminate when the Data Processor ceases to Process Personal Data, unless otherwise agreed in writing between the Parties.
12.2 The Parties hereby acknowledge and agree that a person with rights under this DPA may be irreparably harmed by any breach of its terms and that damages alone may not be an adequate remedy. Accordingly, a person bringing a claim under this DPA shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this DPA.
12.3 If one of the Parties seeks changes to the DPA to comply with a change in Applicable Data Protection Laws or a binding and final decision of a Regulator with jurisdiction over the Party’ Processing of Personal Data, the Parties will discuss in good faith how to address any necessary changes.
12.4 The section headings contained in this DPA are for reference purposes only and shall not in any way affect the meaning or interpretation of this DPA.
The Personal Data Processed by the Data Processor will be subject to the following basic Processing activities:
The Personal Data Processed by the Data Processor will be Processed for the following duration:
Until the account of the User is terminated for any reason whatsoever.
The Personal Data Processed by the Data Processor concern the following categories of Data Subjects:
Users of Hookdeck’s Website and Services.
The Personal Data Processed by the Data Processor includes the following categories of data:
The Personal Data Processed by the Data Processor concern the following special categories of data:
None by default.