Data Processing Agreement (“DPA”)

Customer (as defined in the Subscription Services Agreement/Order Form (the “SSA”), hereinafter referred to as “Customer”) and My Digital Office d/b/a Otelier (as defined in the SSA, hereinafter referred to as “Otelier”) have agreed to the following terms and conditions regarding the processing of Personal Data subject to the SSA.

The subject matter of Otelier’s processing of Customer Personal Data is the execution of Services and tasks as described in the SSA. This DPA establishes the instructions given by Customer to Otelier and the agreed processing activities by Otelier on behalf of Customer when processing Customer Personal Data in connection with the tasks described in the SSA. Otelier acts as a Processor and Customer acts as a Controller in relation to their own data, or (if applicable) both parties act as a Processor of their respective customers’ data.

This DPA is subject to the terms of, and is fully incorporated and made part of, the SSA and shall replace any existing data processing addendum to the SSA unless otherwise explicitly stated herein. In the event of any conflict between this DPA and any other provision of the SSA with respect to Customer Personal Data, this DPA shall govern and apply.

1. Definitions and Interpretation

1.1 Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:

1.1.2 “Customer Personal Data” means any Personal Data Processed by a Contracted Otelier on behalf of Customer pursuant to or in connection with the SSA;

1.1.3 “Contracted Processor” means a Subprocessor;

1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.5 “EEA” means the European Economic Area;

1.1.6 “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;

1.1.8 “Data Transfer” means:

1.1.8.1 a transfer of Customer Personal Data from the Customer to a Contracted Processor; or

1.1.8.2 an onward transfer of Customer Personal Data from a Contracted Processor to a Subcontracted 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);

1.1.9 “Services” means the SaaS software services and tasks Otelier provides as described in the SSA.

1.1.10 “Subprocessor” means any person appointed by or on behalf of Otelier to process Personal Data on behalf of the Customer in connection with the SSA.

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. Processing of Customer Personal Data

2.1 Otelier shall:

2.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and

2.1.2 not Process Customer Personal Data other than on the relevant Customer’s documented instructions.

2.2 The Customer instructs Otelier to process Customer Personal Data.

3. Otelier Personnel

Otelier shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the SSA, 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.

4. Security

4.1 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, Otelier shall in relation to the Customer 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.

4.2 In assessing the appropriate level of security, Otelier shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1 To accommodate the specific needs of the Customer regarding the processing of Personal Data under this DPA, Otelier may utilize the services of contractors and cloud-based technologies, such as Amazon Web Services (AWS), under the condition that such services adhere to data protection obligations compatible with those stipulated in this DPA and under applicable law. Otelier is obligated to provide a current list of Subprocessors upon the Customer’s request.

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Otelier shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Otelier shall:

6.2.1 promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and

6.2.2 ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which Otelier is subject, in which case Otelier shall to the extent permitted by applicable laws inform Customer of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

8.1 Otelier shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required 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 Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Customer Personal Data

9.1 Subject to this section 9 Otelier shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Dat(the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data.

10. Compliance Verification

10.1 Otelier agrees to demonstrate compliance with this DPA through the provision of annual SOC (Service Organization Control) reports or equivalent compliance reports, which will be made available to the Customer upon request. These reports are conducted by an independent third-party auditor and are intended to provide reasonable assurance of Otelier’s adherence to the agreed-upon data processing and protection standards.

10.2 The Customer agrees that the provision of the annual SOC reports or equivalent compliance reports shall suffice for the purposes of verifying Otelier’s compliance with the obligations under this DPA and the relevant Data Protection Law. Therefore, direct audits, including inspections by the Customer or an auditor mandated by the Customer, in relation to the Processing of the Customer Personal Data by the Contracted Processors, shall not be required.

10.3 Notwithstanding the foregoing, should regulatory requirements necessitate additional verification of  Otelier’s compliance that cannot be satisfied through the annual SOC reports or equivalent compliance reports, Otelier agrees to discuss in good faith with the Customer alternative means of demonstrating compliance in a manner that satisfies such regulatory requirements without necessitating direct audits of Otelier’s practices.

11. Data Transfer

11.1 Notwithstanding the general restriction on the transfer of Data to countries outside the European Union (EU) and/or the European Economic Area (EEA), Otelier is hereby authorized by the Customer to transfer, or allow the transfer of, Data to countries outside the EU and EEA for the purpose of processing and storing said Data in cloud infrastructure, under the condition that such transfers adhere to the necessary standards of data protection.

To ensure the protection of personal data transferred outside the EEA, Otelier commits to implementing safeguards that meet the EU’s data protection requirements. This includes, but is not limited to, the use of EU-approved standard contractual clauses for the transfer of personal data to third countries, incorporating the Data Protection Amendment that addresses the specific requirements of cloud-based storage and processing services, and any additional measures required to maintain the integrity and security of the personal data in accordance with applicable data protection laws.

11.2 The Customer acknowledges that the use of cloud services necessitates the processing and storage of Data in various jurisdictions outside the EEA. The Customer agrees to this arrangement, provided that  Otelier adheres to the obligations set out in this section and ensures the lawful transfer of Data in compliance with GDPR and other applicable data protection laws.

12. General Terms

12.1 Confidentiality. Each Party must keep this DPA and information it receives about the other Party and its business in connection with this DPA confidential in accordance with the terms of the SSA.

12.2 Notices; Privacy Contact. All notices and communications given under this DPA must be in writing and delivered in accordance with the notice provisions in the SSA. Otelier has designated a Data Privacy Officer (DPO) authorized to ensure compliance with applicable privacy law, and to respond to inquiries concerning Otelier’s processing of Customer Personal Data. DPO can be contacted at privacy@otelier.io.

13. Governing Law and Jurisdiction; Modifications

13.1  This DPA is governed by the laws that govern the SSA between the parties, or if not defined there, the laws of Delaware.

13.2 Any dispute arising in connection with this DPA, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts as described in the SSA between the parties, or if not defined there, the courts of Delaware.

13.3 Modification; Waiver. Subject to the restrictions in this Section, Otelier may modify this DPA. If Otelier modifies these terms, it shall provide prior notice by email or posting to the Otelier website (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Otelier is not required to provide prior notice if modifications are necessary to comply with applicable laws but in such case shall use commercially reasonable efforts to provide prior notice when practicable. (a) If the Modification Notice states that the modifications will become effective upon commencement of a renewal Subscription Services term, then the modifications will become effective for each Subscription Service affected by the changes upon renewal of such Subscription Service. Customer may avoid the applicability of the changes only by canceling the renewal of Customer’s subscription prior to commencement of the renewal Subscription Service term. (b) If the Modification Notice states that the modifications will become effective during the then-current Subscription Services term, and the modifications materially and adversely affect Customer, then Customer may terminate Customer’s subscription to the affected Subscription Service by providing written notice to Otelier at any time within the 30-day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers a timely termination notice or (ii) the date on which the applicable modifications become effective. If Customer terminates a Subscription Service pursuant to this subsection (b), then Otelier shall refund Customer the pro rata amount of any prepaid service subscription fees applicable to the unused portion of the Subscription Service term for the terminated service (excluding any previously paid one-time fees, including but not limited to Professional Services and implementation fees). (c) If Customer does not terminate the affected Subscription Service as specified in this Section, then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice. Except as set forth in this Section, no modification, amendment or waiver of any provision of this DPA shall be effective unless in writing and signed by both parties. No failure or delay by either party in exercising or enforcing any right under this DPA shall constitute a waiver of that right.