Data Processing Agreement

This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between Uniqode and Customer. Customer and Uniqode are hereinafter referred to individually as a “Party” and collectively as the “Parties”). Customer is required to read this DPA carefully as this DPA forms an integral part of the terms of service available at https://www.uniqode.com/terms-of-service (the “Terms”) and is applicable where Uniqode are the Processors of Customer’s Personal Data originating from the EEA and/or Switzerland.

1. Definitions

Terms not specifically defined herein shall have the meaning ascribed thereto in the terms.
In this DPA, the following terms shall have the following meanings:

“Data Protection Laws” shall mean the data protection laws of the country in which Customer are established and any data protection laws applicable to Customer in connection with the Terms, including but not limited to (a) the GDPR; (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the UK Data Protection Act, 2019 (together, “UK Data Protection Laws”); (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”); in each case, as may be amended or superseded.

“GDPR” shall mean the 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 movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

“UK GDPR” shall mean the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018

“Personal Data” shall mean any information relating to an identified or identifiable natural person as defined by the General Data Protection Regulation of the European Union ("GDPR" EC-2016/679) that is Processed by the Processor as part of providing the Services to Customer.

“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.

“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, Version B1.0, in force from 21 March 2022 set forth as Schedule D (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).

“Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws

“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.

2. Scope and Responsibilities

This DPA applies to the Processing of Personal Data forming a part of the Service Data.
Uniqode shall Process Personal Data only on Customer’s behalf and at all times only in accordance with this DPA. For the avoidance of doubt, the Customer may either be the Controller or Processor of the Personal Data. Where the Customer is the Controller, Uniqode is the Processor and where the Customer is the Processor, Uniqode is the sub-processor of Personal Data.
Within the scope of the Terms, each Party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.

3. Term and Termination

This DPA becomes effective upon Customer subscribing to the Services by agreeing to the Terms. It shall continue to be in full force and effect as long as Uniqode is Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.
Where amendments are required to ensure compliance of this DPA with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Customer’s request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Terms in accordance with the termination procedure contained therein.

4. Processing Instructions

Uniqode will Process Personal Data in accordance with the Customer’s instructions. This DPA contains Customer’s initial instructions to Uniqode. The Parties agree that Customer may communicate any change in Customer’s initial instructions to Uniqode by way of amendment to this DPA, which shall be signed by the Parties.
For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties and, where applicable, shall be subject to the contract change procedure under the respective agreement.
Uniqode shall without undue delay inform the Customer in writing if, in Uniqode’s opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.

5. Processor Personnel

Beacosntac will restrict it’s personnel from Processing Personal Data without authorization. Uniqode will impose appropriate contractual obligations upon it’s personnel, including relevant obligations regarding confidentiality, data protection and data security.

6. Disclosure to Third Parties; Data Subjects Rights

Uniqode will not disclose Personal Data to any government agency, court, or law enforcement except with Customer’s written consent or as necessary to comply with applicable mandatory laws. If Uniqode is obliged to disclose Personal Data to a law enforcement agency, Uniqode agrees to give Customer reasonable notice of the access request prior to granting such access, to allow Customer to seek a protective order or another appropriate remedy. If such notice is legally prohibited, Uniqode will take reasonable measures to protect the Personal Data from undue disclosure as if it were Uniqode’s own confidential information being requested and shall inform the Customer promptly as soon as possible if and when such legal prohibition ceases to apply.
In case Customer receives any request or communication from Data Subjects which relates to the Processing of Personal Data ("Request"), Uniqode shall reasonably provide Customer with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by Customer.
Where Uniqode receives a Request, Uniqode shall (i) not directly respond to such Request, (ii) forward the Request to Customer within fifteen (15) business days of identifying the Request as being related to Customer and (iii) provide Assistance according to further instructions from Customer.

7. Technical and Organizational Measures

Uniqode shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs"). Such measures shall include the measures set out in Schedule B.

8. Assistance with Data Protection Impact Assessment

Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, Uniqode shall provide, upon request, to Customer any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not pertaining to Uniqode’s obligations under this DPA.
Customer shall pay Uniqode reasonable charges for providing the assistance in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the Services.

9. Information Rights and Audit

Uniqode shall, in accordance with Data Protection Laws, make available to Customer on request in a timely manner such information as is necessary to demonstrate compliance by Uniqode with its obligations under the Data Protection Laws.
Uniqode shall, upon reasonable notice, allow for and contribute to audits of its Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to its business operations. Upon Customer’s written request at reasonable intervals, Uniqode shall make available to Customer relevant information regarding Uniqode’s Processing of Personal Data in the form of Uniqode’s most recent third party audits and certifications, which may include audit reports such as SOC 2 Type 2 to ensure compliance with Uniqode’s obligations set out in this DPA. Customer agrees that such third-party audits and certifications are sufficient to demonstrate Uniqode’s compliance with the obligations set out in this DPA.
Customer shall pay Uniqode the reasonable costs of allowing or contributing to audits or inspections in accordance with Clause 9.2 where Customer wishes to conduct more than one audit or inspection every twelve (12) months.
Uniqode undertakes to reasonably cooperate with Customer in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.

10. Personal Data Breach Notification

In respect of any Personal Data Breach (actual or reasonably suspected), Uniqode shall:

Notify Customer of a Personal Data Breach involving Uniqode or a sub-processor without undue delay and it shall be Customer’s responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by Uniqode;
provide reasonable information, cooperation and assistance to Customer in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.

11. Use of sub-processors

Uniqode has Customer’s general authorisation for the engagement of third-party sub-processors from an agreed list, as set forth in Schedule A. Uniqode will notify Customer’s Account administrator of any intended changes to that list through the appointment or replacement of any sub-processor at least fifteen (15) days in advance. Customer may object to Uniqode’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, Uniqode will either not appoint or replace the sub-processor or, if this is not possible, Customer or Uniqode may suspend or terminate the Service(s) (without prejudice to any fees incurred by Customer prior to such suspension or termination).
Where Uniqode, with Customer’s authorisation, engage a sub-processor, Uniqode shall do so only by way of a binding written contract which imposes on the sub-processor essentially the same data protection obligations as the ones imposed Uniqode under this DPA and in accordance with Art. 28 of the GDPR.
Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, Uniqode shall remain fully liable to Customer for the fulfillment of Uniqode’s obligations under this DPA and for the performance of the sub-processor 's obligations.

12. International Data Transfers

The Parties agree that when the transfer of Personal Data from the data exporter to data importer is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this Agreement as follows:
1. In relation to transfers of Personal Data originating from the EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:
  1. Module 2 (Controller to Processor) shall apply where Customer is a Controller and Uniqode is a Processor. Module 3 (Processor to Processor) shall apply where Customer is a Processor and Uniqode is a sub-processor;
  2. in Clause 7, the optional docking clause will apply;
  3. In Clause 9(a), Option 2 shall apply;
  4. In Clause 11, the optional language will not apply;
  5. In Clause 17, Option 1 will apply, and the EU SCCs will be governed by German law;
  6. In Clause 18(b), disputes shall be resolved before the courts of Germany;
  7. Annex I of the EU SCCs shall be deemed completed with the information set out in Schedule A to this DTA; and
  8. Annex II of the EU SCCs shall be deemed completed with the information set out in Schedule B to this DTA;
2. In relation to transfers of Personal Data originating from Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications:
  1. References to Regulation (EU) 2016/679; shall be interpreted as references to the Swiss DPA;
  2. References to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent article or section of the Swiss DPA;
  3. References to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”;
  4. the term “member state” shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);
  5. Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the Swiss Federal Data Protection Information Commissioner;
  6. References to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
  7. In Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland (as applicable); and
  8. With respect to transfers to which UK Privacy Laws apply, Clause 18 shall be amended to state “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may bring legal proceeding against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts”, and with respect to transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
3. To the extent that and for so long as the EU SCCs as implemented in accordance with sub-paragraph (a) and (b) above cannot be used to lawfully transfer Personal Data in accordance with the UK GDPR to the Data Importer, the UK SCCs shall be incorporated into and form an integral part of this Agreement and shall apply to transfers governed by the UK GDPR. For the purposes of the UK SCCs, the relevant annexes, appendices or tables shall be deemed populated with the information set out in Schedules A and B of this Agreement.
For the purposes of descriptions in the SCCs and the UK SCCs, Customer agrees that Customer is the “data exporter” and Uniqode is the “data importer”.
The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Legislation requires the adoption of an alternative transfer solution, the Data Exporter and Data Importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.

13. Deletion or Return of Personal Data

Upon termination of Customer’s Account, Uniqode may delete all Service Data, including Personal Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that Uniqode is permitted by applicable law to retain some or all of the Personal Data, in which event Uniqode shall isolate and protect the Personal Data from any further processing.

14. Miscellaneous

In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with Uniqode.
No party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
Where this DPA requires a “written notice” such notice can also be communicated per email to the other party. Notices shall be sent to the contact persons set out in Schedule A.
Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.

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