This Data Processing Addendum (DPA) is an agreement between ThinkTilt Pty Ltd ABN 28 615 127 672 (ThinkTilt) and you, the entity signing up for our software as a service (Customer). When the GDPR applies to the processing of personal data on ThinkTilt’s software as a service (called “Proforma” and “Proforma Lite”), this DPA forms part of ThinkTilt’s Software as a Service Agreement (Terms), available on the ThinkTilt website (https://www.thinktilt.com/), as updated from time to time.
Unless otherwise defined in this DPA or in the Terms, all capitalised terms used in this DPA shall have the meanings given to them in Clause 1 of this DPA.
Capitalised terms have the following meanings in this DPA:
- “Affiliate” means, with respect to a party, any person which directly or indirectly Controls, is Controlled by or is under common Control with such party;
- “Applicable Law” means any laws, statutes, regulations, regulatory constraints, obligations or rules (including binding codes of conduct and binding statements of principle incorporated and contained in such rules) in any jurisdiction applicable to the existence or operation of the Terms and the Parties to the Terms, including any amending, consolidating or successor legislation or case law which takes effect from time to time in the relevant jurisdiction;
- “Applicable Privacy Law” means an Applicable Law on data protection or data privacy, including the GDPR;
- “Control” shall mean the power to direct the management or policies of a person, whether through the ownership of more than 50% (fifty percent) of the voting power of such person or, through the power to appoint more than half of the members of the board of directors or similar governing body of such person, through contractual arrangements or otherwise;
- “EEA” means the European Economic Area;
- “GDPR” means General Data Protection Regulation (EU) 2016/679;
- “Services” means the services to be provided by ThinkTilt (directly or indirectly) to the Customer, in accordance with the Terms;
- “Standard Contractual Clauses” means the contractual clauses set out by the European Commission available at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries as updated or replaced from time to time; andthe terms “controller“, “data subject“, “personal data“, “personal data breach“, “processing” and “processor” have the meanings given to them in article 4 of the GDPR (and their cognates are to be interpreted accordingly), except that references to “personal data” include references to data relating to legal as well as natural persons to the extent that the processing of the relevant data is regulated by an Applicable Privacy Law which applies to the processing of such data.
2 Roles of the Parties
Where ThinkTilt, its Affiliates or a Sub-Processor (Processor) processes personal data (Processed Personal Data) in the course of providing the Services to, or otherwise performing its obligations under the Terms for, the Customer, the parties acknowledge that, to the extent relevant under the Applicable Privacy Laws, the Customer will act as the controller, and the Processor will act as a processor on behalf of the Customer, in relation to the Processed Personal Data.
3. Processing Instructions
Subject to the other provisions of this DPA, the Customer:
- instructs ThinkTilt to take such steps in the processing of Processed Personal Data on its behalf as are reasonably necessary to the provision of the Services or otherwise to the performance of ThinkTilt’s obligations under the Terms; and
- irrevocably authorises ThinkTilt to provide equivalent instructions to Sub-Processors on its behalf.
4. Details of Processing
The description of the processing as required by article 28(3) of the GDPR is as follows:
- Subject matter – The subject matter of the data processing under this DPA is the performance of the Services in accordance with the Terms
- Duration – The period of the Customer’s subscription under the Terms, or such other period set out in the Terms
- Nature and purpose of the processing – ThinkTilt usually only collects personal data from representatives of the Customer, for the purposes of registering one or more ThinkTilt Services, verifying and authenticating the Customer’s purchase, providing installation key codes and providing technical support
- Categories of data subject and types of personal data
- Data Subject: Customer’s authorised representatives
- Personal identifiers:
- first and last names
- Contact details: email address, phone number,
- Technical data: website usage, device and location
- Company information: high level information in relation to the Customer’s business may be also be collected and may include details of the Customer’s industry
- Compliance-related data: details of the computer and user installing and using the Services, which may include internet protocol addresses and hardware identification
- Data Transfers – Data transfers to ThinkTilt’s employees and affiliates and Sub-Processors who may be based outside the EEA, including in Australia.
5. Compliance with Applicable Privacy Law
ThinkTilt shall comply and ensure that each of its Affiliates and Sub-Processors complies, with Applicable Privacy Law in relation to its processing of personal data in connection with the Terms.
The Customer shall ensure that, before any Processed Personal Data is disclosed by the Customer to the Processor, the Customer has taken any steps necessary to ensure that, if the Processor complies with Clause 6, the disclosure does not breach any Applicable Privacy Law. Without limiting the foregoing, the Customer shall be responsible:
- at all times for the integrity, quality and legality of the Processed Personal Data provided by the Customer to ThinkTilt. ThinkTilt is under no duty to investigate the completeness, accuracy or sufficiency of the Processed Personal Data provided to it by the Customer;
- to the extent required by Applicable Privacy Law, to obtain the consent of the data subjects for their Processed Personal Data to be transferred to and processed by the Processor, and where the data subject is below the applicable age of consent under Applicable Privacy Law, to obtain the consent of the data subject’s parents and/or guardians.
6. Customer / Processor Arrangements
ThinkTilt shall ensure that the Processor:
- only processes the Processed Personal Data:
- on the documented instructions of the Customer, which include the instructions set out in Clause 3 of this DPA; and
- as otherwise required by Applicable Laws in which case the Processor shall, to the extent permitted by Applicable Laws, inform the Customer of such legal requirement prior to the processing;
- ensures that all of its employees authorised to have access to (or otherwise to process) the Processed Personal Data have committed themselves to confidentiality on appropriate terms or are under an appropriate statutory obligation of confidentiality;
- at all times has in place technical and organisational measures to protect the Processed Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access which are appropriate to the risks of varying likelihood and severity for the rights and freedoms of individuals that are presented by the processing, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing (Appropriate), including as and where Appropriate, measures for the pseudonymisation and encryption of Processed Personal Data; the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; the ability to restore the availability of and access to Processed Personal Data in a timely manner in the event of a physical or technical incident; and a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing;
- gives the Customer such co-operation, assistance and information as the Customer may reasonably request, and the Processor or ThinkTilt may reasonably be able to provide, to enable the Customer to comply with its obligations under Applicable Privacy Laws and co-operate with the competent authorities in relation to the Processed Personal Data, including, where relevant given the nature of the Processor’s processing, assisting the Customer:
- by taking appropriate technical and organisational measures, insofar as is possible, to respond to requests from data subjects for access to or rectification, erasure or portability, or restriction of or objection to processing, of Processed Personal Data (but ThinkTilt shall not, and shall ensure that the Processor does not, respond to any such request except with the Customer’s prior written consent); and
- in ensuring compliance with the Customer’s security, data breach notification, impact assessment and data protection or data privacy authority consultation obligations under Applicable Privacy Laws, taking into account the information available to ThinkTilt and/or Processor.
ThinkTilt may charge the Customer on a time and materials basis, at ThinkTilt’s standard applicable rates, for time spent in providing assistance under this Clause 6(4).
- shall, in relation to ThinkTilt only, at all times have in place (and keep the Customer informed in writing of the identity and contact details of) an individual who is responsible for co-operating with the Customer in relation to data protection and data privacy matters in connection with the Terms;
- without undue delay gives written notice to the Customer, with reasonable details, if it becomes aware of, or comes to have reasonable grounds to suspect, the occurrence of any personal data breach or other material incident prejudicing, or revealing a material weakness in, the security of the Processed Personal Data while in its possession or under its control (a “Data Security Incident“);
- in relation to any Data Security Incident:
- takes all reasonable steps to identify and correct the underlying cause of the Data Security Incident so as to eliminate or minimise the risk of its repetition and the occurrence of similar Data Security Incidents;
- takes such steps as the Customer may reasonably request and the Processor or ThinkTilt may reasonably be able to take to assist the Customer in addressing the adverse consequences for the Customer and its Affiliates of, and complying with the Customer’s and its Affiliates’ obligations under Applicable Privacy Law in relation to, the Data Security Incident; and
- reports to the Customer, promptly and at regular intervals, on the steps taken under Clauses 6(7)(a) and (b) and their results;
- makes available to the Customer all information reasonably requested by the Customer, and permits and contributes to all reasonable audits, including inspections, conducted by the Customer (or auditors appointed by either of them), as reasonably necessary to demonstrate ThinkTilt’s compliance with this Clause 6, provided that the Customer shall:
- ensure that such audits take place during ThinkTilt’s business hours and on reasonable notice;
- ensure that appropriate confidentiality provisions, or other contractual, professional or statutory obligations of confidentiality, are agreed with any third party involved in audit or inspection; and
- take (and ensure that auditors take) reasonable endeavours to avoid causing any damage, injury or disruption to ThinkTilt;
- promptly informs the Customer in writing (but without any obligation to give legal advice) if, in its opinion, to follow an instruction given by the Customer as contemplated by Clause 6(1) would give rise to a breach of Applicable Privacy Law; and
- at the option of the Customer (to be exercised by written notice from the Customer (in the absence of which the Customer is deemed to have chosen delete)), deletes or returns to the Customer, in a reasonable and appropriate format, all the Processed Personal Data in its possession or under its control as soon as is practicable after the end of the provision of the relevant Services, and (in the case of return) as soon as is practicable deletes all other copies of those Processed Personal Data.
7. International Data Transfers
- The Standard Contractual Clauses apply to transfers of personal data from the EEA, to any country or recipient: (i) not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR and any successor legislation thereto), and (ii) not covered by a suitable framework recognised by relevant authorities or courts as providing an adequate level of protection for personal data, including but not limited to the EU-U.S. Privacy Shield Framework.
- The Standard Contractual Clauses shall apply to the transfer of Processed Personal Data to ThinkTilt from the EEA.
- Where the Standard Contractual Clauses apply in accordance with clause 7(b):
- ThinkTilt agrees to comply with the terms of the Standard Contractual Clauses, for the purposes of which the Customer and those of its affiliates established in the EEA will be regarded as the Data Exporter(s) and ThinkTilt will be regarded as the Data Importer;
- the governing law in clause 9 of the Standard Contractual Clauses shall be the law of the Data Exporter;
- in the event of inconsistencies between the provisions of the Standard Contractual Clauses and this DPA, the Terms or other agreements between the parties as regards the Services, the Standard Contractual Clauses shall take precedence;
- in the event that the Standard Contractual Clauses are amended, replaced or repealed by the European Commission or under Applicable Laws, the parties shall work together in good faith to enter into any updated version of the Standard Contractual Clauses or negotiate in good faith a solution to enable a transfer of Processed Personal Data to be conducted in compliance with Applicable Laws;
- the parties agree that the certification of deletion of Processed Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by the Data Importer to the Data Exporter only upon the Data Exporter’s request; and
- for the purposes of Appendix 1 of the Standard Contractual Clauses:
- categories of data: the personal data transferred concerns the categories of Processed Personal Data set out in clause 4(4) of the DPA;
- data subjects: the personal data transferred concerns the categories of data subjects set out in clause 4(d) of the DPA.
- special categories of data: not applicable;
- for the purposes of Appendix 2 of the Standard Contractual Clauses:
- technical and organisational security measures implemented by the data importer in accordance with clause 6(c) (or document/legislation attached): [insert].
- The Customer agrees that ThinkTilt may engage other persons to process the Processed Personal Data on its behalf (Sub-Processors) if:
- the Sub-Processor is (1) an Affiliate of ThinkTilt or (2) an existing Sub-Processor as at the commencement of the Customer’s subscription; or
- ThinkTilt remains liable for the performance of its obligations under this DPA irrespective of the engagement of any Sub-Processor.
- ThinkTilt shall ensure that each (if any) Sub-Processor is party to a written contract binding on it with regard to the Customer and imposing on it obligations which are substantially similar to those imposed on ThinkTilt by Clause 6.