Last updated on June 8, 2021
This Data Processing Agreement ("Agreement") is incorporated by reference into Papathemes's Terms of Service at https://papathemes.com/terms-of-service/ entered into between Papathemes or an Affiliate. and you (the "Controller"), and reflects the parties' agreement with regard to the Processing of Personal Data in accordance with the requirements of the Data Protection Laws (as defined herein).
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms of Service for products and services between Papathemes and the Controller (the "Principal Agreement"). Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
Except where the context requires otherwise, references in this Agreement to the Principal Agreement are to the Principal Agreement as amended by, and including, this Agreement.
1. Definitions
1.1 In this Agreement, the following terms shall have the meanings set out below:
1.1.1 "Adequate Level of Protection" means a finding under the relevant Data Protection Laws that a transfer of personal data to a third country, Contracted Processor, or an international organization may take place because the third country, Contracted Processor, or international organization in question ensures an adequate level of protection by way of a certification (such as Privacy Shield), Standard Contractual Clauses, contract, or other legal act.
1.1.2 "Affiliate" means that an entity that (i) controls, (ii) is controlled by, or (iii) is under common control with Papathemes. An entity will be deemed to control another entity if it has the power to direct or cause direction of the management or policies of such entity, whether through the ownership or voting securities, by contract, or otherwise.
1.1.3 "Applicable Laws" means (a) European Union or Member State laws with respect to any Controller Personal Data in respect of which Controller is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Controller Personal Data in respect of which Controller is subject to any other Data Protection Laws;
1.1.4 "Controller Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Controller, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.5 "Controller Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of Controller;
1.1.6 "Contracted Processor" means Papathemes or a Subprocessor;
1.1.7 "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.8 "EEA" means the European Economic Area;
1.1.9 "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;
1.1.10 "GDPR" means EU General Data Protection Regulation 2016/679;
1.1.11"Privacy Shield" means the EU-U.S. and SWISS-U.S. Privacy Shield Frameworks as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union to the United States.
1.1.12 "Restricted Transfer" means:
1.1.12.1 a transfer of Controller Personal Data from Controller to a Contracted Processor; or
1.1.12.2 an onward transfer of Controller Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of an Adequate Level of Protection;
1.1.13 "Services" means the services and other activities to be supplied to or carried out by or on behalf of Papathemes for Controller; and
1.1.14 "Subprocessor" means any person (including any third party, but excluding an employee of Papathemes or any of its sub-contractors) appointed by or on behalf of Papathemes to Process Personal Data on behalf of Controller.
1.2 The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2. Details of the Processing
2.1 Categories of Data Subjects. The Data Subjects are Controller's End Users who purchase products and/or services from Controller or submitted a review via the onsite reviews widget that is installed on the Controller website, and the Controller's employees.
2.2 Types of Personal Data. The Personal Data processed is name, email address, telephone number, email data, system usage data, location data (physical address, IP address), and other electronic data submitted, stored, sent, or received by the Data Subjects.
2.3 Subject Matter and Nature of Processing. The Subject Matter of Processing the Personal Data is the provision of services to the Controller that requires the Processing of Personal Data as set forth in the Principal Agreement.
2.4 Purpose of Processing. Personal Data will be processed for purposes of providing the services set forth in a Principal Agreement between Papathemes and the Controller.
2.5 Duration of Processing. The Personal Data will be processed for the duration of the Principal Agreement.
2.6 You acknowledge and agree that Papathemes may retain appropriate Affiliates and other suitable third parties as sub-processors (all together "Sub-Processors") in connection with the processing of Customer Personal Data. Papathemes has imposed on such Sub-Processors, in a written agreement, data protection obligations which are no less protective that those which are imposed on Papathemes under this Agreement. Papathemes will be liable to you for performance of such obligations by the Sub-Processors. A list of Sub-Processors is available at https://papathemes.com/subprocessors/ (the "Sub-Processor List"). You hereby provide general authorization to the appointment of the Sub-Processors listed on the Sub-Processor List. In addition, you agree to subscribe to Papathemes's notification mechanism set forth in the Sub-Processor List to in order to receive notifications of new Sub-Processors (each, a "Sub-Processor Notification"). You may object to Papathemes's use of a new Sub-Processor by notifying Papathemes in writing within ten (10) days after receipt of a Sub-Processor Notification. You agree to that any objections to the appointment of a new Sub-Processor will contain the explanation, reasoning, and substantiation for the objection. In such cases, Papathemes shall use reasonable efforts to (i) make available to you a change in Papathemes's Products or (ii) recommend a change to your configuration or use of the Products to avoid the processing of Customer Personal Data by the objected-to Sub-Processor. If Papathemes is unable to make available such change within a reasonable period of time, you may, by providing written notice to Papathemes, terminate the Products which cannot be provided by Papathemes without the use of the objected-to Sub-Processor. Papathemes will refund you any prepaid fees covering the remainder of the term of such Products following the effective date of termination with respect to such terminated Product.
3. Processing of Controller Personal Data
3.1 Papathemes shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Controller Personal Data; and
3.1.2 not Process Controller Personal Data other than on the relevant Controller's written instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Papathemes shall to the extent permitted by Applicable Laws inform the relevant Controller of that legal requirement before the relevant Processing of that Personal Data.
3.2 Controller:
3.2.1 instructs Papathemes (and authorizes Papathemes to instruct each Subprocessor) to:
3.2.1.1 Process Controller Personal Data; and
3.2.1.2 in particular, transfer Controller Personal Data to approved countries in accordance with this Agreement, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Controller Affiliate.
4. Papathemes Personnel
Papathemes shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security
5.1 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, Papathemes shall in relation to the Controller Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2 In assessing the appropriate level of security, Papathemes shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6. Subprocessing
6.1 Controller authorizes Papathemes to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
6.2 Papathemes may continue to use those Subprocessors already engaged by Papathemes as at the date of this Agreement, which are set forth in 2.6 above, which Processor may update from time to time, subject to Controller's prior written approval.
6.3 Papathemes shall give Controller prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within ten days of receipt of that notice, Controller notifies Papathemes in writing of any objections (on reasonable grounds) to the proposed appointment:
6.3.1 Papathemes shall work with Controller in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and
6.4 With respect to each Subprocessor, Papathemes shall:
6.4.1 before the Subprocessor first Processes Controller Personal Data (or, where relevant, in accordance with section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Controller Personal Data required by the Principal Agreement;
6.4.2 ensure that the arrangement between on the one hand (a) Papathemes, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Controller Personal Data as those set out in this Agreement and meet the requirements of article 28(3) of the GDPR;
6.4.3 if that arrangement involves a Restricted Transfer, ensure that an Adequate Level of Protection exists before the Subprocessor first Processes Controller Personal Data; and
6.4.4 provide to Controller for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Agreement) as Controller may request from time to time.
6.5 Papathemes shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Controller Personal Data carried out by that Subprocessor, as if it were party to this Agreement in place of Papathemes.
6.6 Controller acknowledges and agrees that Papathemes has appointed Amazon Web Services as a Subprocessor for cloud storage of data.
7. Data Subject Rights
Taking into account the nature of the Processing, Papathemes shall assist Controller by implementing appropriate technical and organizational measures to respond to requests to exercise Data Subject rights under the Data Protection Laws.
8. Personal Data Breach
8.1 Papathemes shall notify Controller without undue delay upon Papathemes or any Subprocessor becoming aware of a Personal Data Breach affecting Controller Personal Data
8.2 Papathemes shall co-operate with Controller and take such reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
Papathemes shall provide reasonable assistance to Controller with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required of Controller by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Controller Personal Data
10.1 Subject to sections 10.2 and 10.3 Papathemes shall within 45 days of the date of cessation of any Services involving the Processing of Controller Personal Data(the "Cessation Date"), return or delete all copies of those Controller Personal Data.
10.2 Subject to section 10.3, Controller may in its absolute discretion by written notice to Papathemes within 45 days of the Cessation Date require Papathemes to (a) return a complete copy of all Controller Personal Data to Controller by secure file transfer in such format as is reasonably notified by Controller to Papathemes; and (b) delete and procure the deletion of all other copies of Controller Personal Data Processed by any Contracted Processor. Papathemes shall comply with any such written request within 45 days of the Cessation Date.
10.3 Each Contracted Processor may retain Controller Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Papathemes shall ensure the confidentiality of all such Controller Personal Data and shall ensure that such Controller Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 Papathemes shall provide written certification to Controller that it has fully complied with this section 10 within 60 days of the Cessation Date.
11. Audit rights
11.1 Subject to section 11.2, Papathemes shall make available to Controller on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Controller or an auditor mandated by Controller in relation to the Processing of the Controller Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Controller only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
11.3 Controller or the relevant Controller Affiliate undertaking an audit shall give Papathemes reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Contracted Processors' premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
11.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
11.3.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Controller or the relevant Controller Affiliate undertaking an audit has given notice to Papathemes that this is the case before attendance outside those hours begins; or
11.3.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which:
11.3.3.1 Controller or the relevant Controller Affiliate undertaking an audit reasonably considers necessary because of genuine concerns as to Papathemes's compliance with this Agreement; or
11.3.3.2 Controller is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Controller or the relevant Controller Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Papathemes of the audit or inspection.
12. General Terms
Governing law and jurisdiction
12.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law):
12.1.1 the parties to this Agreement hereby submit to the venue stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Agreement, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
12.1.2 this Agreement and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
12.2 Nothing in this Agreement reduces Papathemes's obligations under the Principal Agreement in relation to the protection of Personal Data or permits Papathemes to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement.
12.3 Subject to section 12.2, with regard to the subject matter of this Agreement, in the event of inconsistencies between the provisions of this Agreement and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Agreement, the provisions of this Agreement shall prevail.
Changes in Data Protection Laws, etc.
12.4 Controller may propose any other variations to this Agreement which Controller reasonably considers to be necessary to address the requirements of any Data Protection Law.
12.5 If Controller proposes variations under section 12.4, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Controller's notice as soon as is reasonably practicable.
12.6 Neither Controller nor Papathemes shall require the consent or approval of any Controller Affiliate to amend this Agreement pursuant to this section 12 or otherwise.
Severance
12.7 Should any provision of this Agreement be invalid or unenforceable, then the remainder of this Agreement shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties' intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
Addendums
- California Consumer Privacy Act Addendum – can be found at https://papathemes.com/data-processing-agreement-ccpa