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Data Processing Agreement

GDPR: Data Processing Addendum.

EFFECTIVE AS OF MAY 25, 2018
WebScale is committed to complying with the General Data Protection Regulation (“GDPR”), and enabling our customers to comply with data protection law. We understand the GDPR has robust requirements and obligations for both data controllers and data processors and we are committed to ensuring GDPR compliance. Our DPA is available below so that our customers can be confident that their data is processed in a lawful and transparent manner.

This GDPR Data Processing Addendum (“DPA”) forms part of the Terms of Use available at http://keypay.com.au/terms-and-conditions or such other location as the Terms of Use may be posted from time to time (as applicable, the “Agreement”), entered into by and between the Customer and WebScale Pty Ltd (“WebScale”), pursuant to which Customer has accessed WebScales’ Application Services as defined in the applicable Agreement. The purpose of this DPA is to reflect the parties’ agreement with regard to the processing of personal data in accordance with the requirements of Data Protection Legislation as defined below.

If the Customer entity entering into this DPA has executed an order form or statement of work with WebScale pursuant to the Agreement (an “Ordering Document”), but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document and applicable renewal Ordering Documents. If the Customer entity entering into this DPA is neither a party to an Ordering Document nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity that is a party to the Agreement executes this DPA.

This DPA shall not replace or supersede any agreement or addendum relating to processing of personal data negotiated by Customer and referenced in the Agreement, and any such individually negotiated agreement or addendum shall apply instead of this DPA.

In the course of providing the Application Services to Customer pursuant to the Agreement, WebScale may process personal data on behalf of Customer. WebScale agrees to comply with the following provisions with respect to any personal data submitted by or for Customer to the Application Services or collected and processed by or for Customer through the Application Services. Any capitalized but undefined terms herein shall have the meaning set forth in the Agreement.

Data Processing Terms
In this DPA, “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation (Regulation (EU) 2016/279)), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction.

The terms “data controller”, “data processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organisational measures” shall be interpreted in accordance with applicable Data Protection Legislation.

The parties agree that Customer is the data controller and that WebScale is its data processor in relation to personal data that is processed in the course of providing the Application Services. Customer shall comply at all times with Data Protection Legislation in respect of all personal data it provided to WebScale pursuant to the Agreement.

The subject-matter of the data processing covered by this DPA is the Application Services ordered by Customer either through WebScales’ website or through an Ordering Document and provided by WebScale to Customer via www.keypay.com.au, www.keypay.co.uk or as additionally described in the Agreement or the DPA. The processing will be carried out until the term of Customer’s ordering of the Application Services ceases.

In respect of personal data processed in the course of providing the Application Services, WebScale:

  1. shall process the personal data only in accordance with the documented instructions from Customer (as set out in this DPA or the Agreement or as otherwise notified by Customer to WebScale). If WebScale is required to process the personal data for any other purpose provided by applicable law to which it is subject, WebScale will inform Customer of such requirement prior to the processing unless that law prohibits this on important grounds of public interest.
  2. shall notify Customer without undue delay if, in WebScale’ opinion, an instruction for the processing of personal data given by Customer infringes applicable Data Protection Legislation.
  3. shall implement and maintain appropriate technical and organisational measures designed to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected.
  4. may hire other companies to provide limited services on its behalf, provided that WebScale complies with the provisions of this Clause. Any such subcontractors will be permitted to process personal data only to deliver the services WebScale has retained them to provide, and they shall be prohibited from using personal data for any other purpose. WebScale remains responsible for its subcontractors’ compliance with the obligations of this DPA. Any subcontractors to whom WebScale transfers personal data will have entered into written agreements with WebScale requiring that the subcontractor abide by terms substantially similar to this DPA. A list of subcontractors is available to the Customer in Appendix A of this DPA.
  5. shall ensure that all WebScale personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations sets out in this Clause.
  6. at the Customer’s request and cost (and insofar as is possible), shall assist the Customer by implementing appropriate and reasonable technical and organisational measures to assist with the Customer’s obligation to respond to requests from data subjects under Data Protection Legislation (including requests for information relating to the processing, and requests relating to access, rectification, erasure or portability of the personal data) provided that WebScale reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance.
  7. when the General Data Protection Regulation (Regulation (EU) 2016/279) comes into effect, shall take reasonable steps at the Customer’s request and cost to assist Customer in meeting Customer’s obligations under Article 32 to 36 of that regulation taking into account the nature of the processing under this DPA, provided that WebScale reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance.
  8. at the end of the applicable term of the Application Services, upon Customer’s request, shall securely destroy or return such personal data to Customer.
  9. may transfer personal data from the EEA to the US and Australia for the purposes of this DPA.
  10. makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in the Agreement and allow for and contribute to audits, conducted by the controller or another auditor mandated by the controller. The purposes of an audit pursuant to this Clause include to verify that WebScale is processing personal data in accordance with its obligations under the DPA and applicable Data Protection Legislation. For the avoidance of doubt no access to any part of WebScales’ IT system, data hosting sites or centers, or infrastructure will be permitted. Before the commencement of any such audit, Customer and WebScale shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify WebScale with information regarding any non-compliance discovered during the course of an audit. Customer may not audit WebScale more than once annually. Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time WebScale expends for any such audit, in addition to the rates for services performed by WebScale.
  11. If WebScale becomes aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by WebScale in the course of providing the Application Services (an “Incident”) under the Agreement it shall without undue delay notify Customer and provide Customer (as soon as possible) with a description of the Incident as well as periodic updates to information about the Incident, including its impact on Customer Content. WebScale shall additionally take action to investigate the Incident and reasonably prevent or mitigate the effects of the Incident.
    WebScale shall provide information requested by Customer to demonstrate compliance with the obligations set out in this DPA.

Data Subjects
Any users of the Customers extension, web and mobile applications.

Data Processing Activities
The provision of Application Services by WebScale to Customer.

Term
This DPA shall remain in effect as long as WebScale carries out Personal Data processing operations on behalf of Customer or until the termination of the WebScale Contract (and all Personal Data has been returned or deleted in accordance with Section 8 above).

Appendix A

List of Sub-Processors

Sub-Processor Country Purpose GDPR-compliant
Google, Inc. USA Analytics Yes
ZenDesk, Inc. USA  Helpdesk & Support Yes
Appharbor, Inc. USA Analytics Yes
Sendgrid, Inc. USA Email Delivery Service Yes
Amazon, Inc. USA Cloud hosting, File Storage Yes
Twilio, Inc. USA SMS messaging Yes
New Relic Inc. USA Web Application Monitoring Yes
Trello Inc. USA Product Management Yes
Atlassian Pty Ltd USA Source control Yes
Mailchimp Inc. USA Email Marketing Yes