This Data Processing Addendum, including its Schedules, (“DPA”) supplements and forms an integral part of the agreement as governed by the FADEL standard terms of service available at www.fadel.com/legal/standard-terms-of-service (“Terms”) or any other agreement between Customer and the applicable FADEL contracting entity (“FADEL”) governing the use and access of the Product (“Agreement”). This DPA reflects the parties’ agreement with regard to the Processing of Personal Data by FADEL on behalf of the Customer in connection with the Product. Unless otherwise defined in this DPA or the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 1 of this DPA.
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CCPA |
means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations. |
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Controller |
means the entity which determines the purposes and means of the Processing of Personal Data. |
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Customer |
means the legal entity that is a party to the Agreement with FADEL. |
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Data Protection Legislation |
means all laws and regulations applicable to the Processing of Personal Data under the Agreement. |
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Data Subject |
means the identified or identifiable person to whom Personal Data relates. |
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EEA |
means the European Economic Area. |
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GDPR |
means Regulation 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). |
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Personal Data |
means any information relating to an identified or identifiable natural person where such data is Processed by FADEL on behalf of Customer. |
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Processing |
(and all verb tenses) means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; |
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Processor |
means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA. |
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Sub-Processor |
means a Processor engaged by FADEL. |
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Standard Contractual Clauses |
means Schedule 4 attached to and forming part of this DPA pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council. |
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Supervisory Authority |
means an independent public authority which is established by an EU member state pursuant to the GDPR. |
2.1. Scope, Roles and Details of the Processing. This DPA, including any Schedules, applies when Personal Data is processed by FADEL pursuant to the Agreement. Regarding the Processing of Personal Data, Customer is the Controller, FADEL is the Processor and FADEL will engage Sub-Processors pursuant to the requirements set forth in Section 6 below. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 to this DPA.
2.2. Customer’s Processing of Personal Data. Customer shall, in its use of the Product, Process Personal Data in accordance with the requirements of Data Protection Legislation, including any applicable requirement to provide notice to Data Subjects of the use of FADEL as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Legislation. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges that its use of the Product will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.
2.3. FADEL Processing of Personal Data. FADEL shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); and (ii) Processing initiated by Users in their use of the Product.
3.1. Customer Affiliates. Customer represents that it is authorized to give data processing instructions to FADEL and to otherwise act on behalf of any Customer Affiliates under this DPA.
3.2. Documented Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement with FADEL for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately and in writing.
3.3. Exception. If FADEL is required by law to conduct additional processing, it shall inform Customer of that legal requirement before Processing, unless such notification is prohibited by law.
3.4. Instructions likely to violate Data Protection Legislation. If, in FADEL’s opinion, Customer’s instructions are either likely to violate Data Protection Legislation, FADEL is entitled to refuse to follow such instructions and shall inform Customer of the reasons for its refusal. In such cases, Customer shall provide alternative instructions in a timely manner and FADEL may cease all Processing of the impacted Personal Data (other than secure storage thereof) until it receives acceptable instructions.
4.1. Confidentiality Obligations. FADEL ensures that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, and have executed written confidentiality agreements.
4.2. Limited Access. FADEL ensures that FADEL’s access to Personal Data is limited to those personnel performing services in accordance with the Agreement.
4.3. Data Protection Officer. FADEL has appointed a data protection officer (“DPO”). The appointed DPO may be reached at Data_Protection_Office@fadel.com.
5.1. Measures. FADEL has implemented and shall maintain appropriate technical and organizational measures to protect Personal Data against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, and access (“Security Measures”), as described in Schedule 3 of this DPA, including as appropriate:
A. the pseudonymisation and encryption of Personal Data;
B. the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of Processing systems;
C. subject to the Service Level Agreement, the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
D. the regular testing, assessment, and evaluation of the effectiveness of the Security Measures.
5.2. Customer has made an independent determination as to whether these Security Measures meet the Customer's requirements.
5.3. Third Party Certifications. FADEL has obtained third party certifications as set forth in Schedule 3 of this DPA. Upon Customer’s written request, but not more than once per 12 month period, and subject to the confidentiality obligations set forth in the Agreement, FADEL shall make available to Customer a copy of FADEL’s then most recent third-party certification and audit report, as applicable.
6.1. General Authorization. Customer agrees that FADEL may use Sub-Processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf.
6.2. Sub-Processor Obligations. FADEL will enter into a written agreement with the Sub-Processor and, to the extent that the Sub-Processor is performing the same Processing activities that are being provided by FADEL, FADEL will impose on Sub-Processors data protection obligations not less protective than those in this DPA.
6.3. Sub-Processor List. FADEL currently uses the Sub-Processors listed in Schedule 2 to this DPA. A list of Sub-Processors is also available on FADEL's website at www.fadel.com/legal/standard-terms-of-service.html (“Legal Page”). FADEL will update the Legal Page with any new Sub-Processor and notify Customer at least 7 calendar days before such Sub-Processors will begin to Process Personal Data.
6.4. Objection Right. Customer may object to the use of a new Sub-Processor on a reasonable and legitimate basis. In the event Customer objects to a new Sub-Processor, Customer shall provide written notice to Data_Protection_Office@fadel.com within the 7 calendar day notice period set out in Section 6.3 outlining Customer’s specific concerns about the new Sub-Processor in order to give FADEL the opportunity to address such concerns. FADEL may, at its sole discretion, (i) not appoint the Sub-Processor and/or propose an alternate Sub-Processor; (ii) take the steps to address the Customer’s specific concerns and obtain Customer’s written consent to use the Sub-Processor; or (iii) make available to Customer the FADEL Product(s) without the particular aspect that would involve use of the objected-to Sub-processor. If FADEL is unable or determines in its reasonable judgment, that it is commercially unreasonable to do any of the options in Section 6.4 (i)-(iii), Customer may terminate the Agreement in accordance with section 19.3 of the Terms.
6.5. Liability. FADEL will remain responsible for the performance of a Sub-Processor to the same extent FADEL would be responsible if performing the services of each Sub-Processor directly under the terms of this DPA.
FADEL will, to the extent legally permitted, notify Customer without undue delay if FADEL receives a request from a Data Subject to exercise the Data Subject’s rights set forth in Data Protection Legislation, especially Chapter III of GDPR (“Data Subject Request”). Taking into account the nature of the Processing, FADEL will assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to Data Subject Requests under Data Protection Legislation. To the extent Customer is unable to address a Data Subject Request, FADEL will upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request. To the extent legally permitted, Customer will be responsible for any costs arising from FADEL’s provision of such assistance.
Taking into account the nature of Processing and the information available to FADEL, FADEL will provide reasonable assistance and cooperation to Customer in respect of its relevant obligations under Articles 32 to 36 GDPR. To the extent legally permitted, Customer will be responsible for any costs arising from FADEL’s provision of such assistance.
FADEL will notify Customer without undue delay, but always within 48 hours, after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by FADEL or its Sub-Processors of which FADEL becomes aware (“Personal Data Breach”). Notification of Personal Data Breaches, if any, will be delivered by email at the email address specified for notices in the applicable Order Form, if no email address is specified, to one or more of Customer’s Product administrators. FADEL's obligation to notify Customer of a Personal Data Breach is not an acknowledgement by FADEL of any fault or liability with regard to the Personal Data Breach. The obligations under this Section 9 do not apply to incidents that are caused by Customer or its Users.
10.1. Upon Customer’s request to Data_Protection_Office@fadel.com FADEL will return or delete Personal Data in accordance with the timeframes specified in the Agreement, unless European Union law or the laws of a EU member state requires that FADEL retains the Personal Data. FADEL may delete Personal Data three months after termination or expiration of the Agreement. FADEL shall dispose Personal Data in accordance with the latest method(s) of data sanitizing, as detailed in NIST 800-88 (“Guidelines for Media Sanitization”).
10.2. Notwithstanding anything to the contrary in this DPA, FADEL may retain Personal Data if and for as long as required by law.
10.3. Personal Data stored in FADEL’s auto-backup or archival systems will be deleted automatically after 180 days after back-up, or otherwise as soon as technically or contractually possible.
11.1. Summary Report of Internal Audit. In addition to Section 5.3, FADEL will on a regular basis audit the security of the systems that it uses to Process Personal Data. Upon Customer’s written requests, FADEL will make available to Customer a summary of the results of this audit ("Summary Report") to demonstrate compliance with the obligations under this DPA.
11.2. Customer Audit. If Customer substantiates that the Summary Report cannot satisfactorily demonstrate FADEL’s compliance and that it has a justifiable suspicion that FADEL is in breach of this DPA, Customer may conduct an audit on FADEL’s premises, not more than once per 12 month period, and subject to the confidentiality obligations set forth in the Agreement and following conditions:
A. Customer must provide at least 30 days’ prior written notice to Data_Protection_Office@fadel.com. Such notice must indicate the reasons for the audit request, and will be effective upon FADEL’s confirmation of receipt;
B. Audits will be conducted within a mutually agreed scope, duration, and timing; performed by Customer, or a third party that is pre-approved by FADEL, such approval not to be unreasonably withheld; and conducted within FADEL’s normal business hours and with best efforts taken to avoid disruption of FADEL’s business operations;
11.3. Cost. The cost of an audit on FADEL’s premises will be borne by Customer, unless a Material Breach (as defined in the Agreement) of this DPA is found, in which case FADEL will bear the costs.
11.4. Nothing in this Section 11 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority's or Data Subject's rights under the Standard Contractual Clauses.
12.1. Regions. Customer may request the location where Customer Data, including Personal Data, will be Processed in the Agreement (“Region”). Except as necessary to provide the Product and services initiated by Customer, or as necessary to comply with the law, FADEL will not transfer Personal Data from FADEL’s selected Region. A transfer to a third country shall take place only if the conditions of Chapter V. GDPR are complied with.
12.2. Application of Standard Contractual Clauses. FADEL will enter into Standard Contractual Clauses with each affiliate and/or Sub-Processor where the Processing of Personal Data is transferred outside the EEA, either directly or via onward transfer, to any third country not recognized by the European Commission as providing an adequate level of protection for Personal Data. Customer hereby authorizes FADEL to enter into Standard Contractual Clauses (also) on its behalf and commissions FADEL to enforce them against the relevant Sub-Processor on the Customer’s behalf where appropriate. The Standard Contractual Clauses will not apply to Personal Data that is not transferred, either directly or via onward transfer, outside the EEA.
12.3. Order of precedence. If the Standard Contractual Clauses apply, nothing in this Section 12 varies or modifies the Standard Contractual Clauses.
Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will take precedence to the extent of such conflict.
This DPA shall enter into force at the same time as the Agreement and shall automatically terminate upon any termination or expiration of the Agreement.
Schedule 1: Details of the Processing of Personal Data
Schedule 2: List of Sub-Processors and FADEL Entities
Schedule 3: Security Measures
Schedule 4: Standard Contractual Clauses
March 14, 2023