Data Processor Agreement

COMPANY NAME
COMPANY ADDRESS
VAT no.:
(Hereafter referred to as “Data Controller”)

and

Abacum Planning S.L.
Barcelona, Spain
B67619445
(Hereafter referred to as “Data Processor”)

have entered into the following Data Processor Agreement (DPA) in order to meet the requirements of the GDPR and to ensure the protection of the rights of the data subject.

Preamble
1. This DPA set out the rights and obligations of the Data Processor when processing personal data on behalf of the Data Controller.
2. The content of the DPA has been designed to ensure the Parties’ compliance with Article 28 (3) of 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)
3. In the context of the provision of the SUBSCRIPTION AGREEMENT, the Data Processor will process personal data on behalf of the Data Controller in accordance with this DPA.
4. This DPA will take priority over any similar provisions contained in other agreements between the parties.
5. Tree appendixes are attached to this DPA.
  1. Appendix A contains details about the processing of personal data, including the purpose and nature of the processing, type of personal data, categories of data subject and duration of the processing.
  2. Appendix B contains the Data Controllers conditions for the Data Processors use of sub-processors and a list of sub processors authorised by the Data Controller.
  3. Appendix C contains the Data Controllers instructions with regards to the processing of personal data, the minimum security measures to be implemented by the Data Processor and how audits of the Data Processor and any sub-processors are to be performed.
6. This DPA along with appendixes shall be retained in writing, including electronically, by both Parties.
7. This DPA does not exempt the data processor from obligations to which the Data Processor is subject pursuant to the General Data Protection Regulation (the GDPR) or other legislation.
The rights and obligations of the Data Controller
1. The Data Controller is responsible for ensuring that the processing of personal data takes place in compliance with the GDPR (Article 24), the applicable EU or Member State data protection provisions and this DPA.
2. The Data Controller has the right and obligation to make decisions about the purposes and means of the processing of personal data.
3. The Data Controller shall be responsible, among other, for ensuring that the processing of personal data, which the Data Processor is instructed to perform, has a legal basis.
The Data Processor acts according to instructions
1. The Data Processor shall process personal data only on documented instructions from the data controller, unless required to do so by Union or Member State law to which the Data Processor is subject. Such instructions shall be specified in Appendix A and C. Subsequent instructions can also be given by the Data Controller throughout the durations of the processing of personal data, but such instructions shall always be documented and kept in writing, including electronically.
2. The Data Processor shall immediately inform the Data Controller of the instructions given by the Data Controller, in the opinion of the Data Processor, contravene the GDPR or the applicable EU or Member State data protection provisions.
Confidentiality
1. The Data Processor shall only grant access to the personal data being processed on behalf of the Data Controller to persons under the Data Processors authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need to know basis. The list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.
2. The Data Processor shall at the request of the Data Controller demonstrate that the concerned persons under the Data Processor’s authority are subject to the above mentioned confidentiality.
Security of processing
1. Article 32 GDPR stipulates that, 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 of the rights and freedoms of natural persons, the Data Controller and Data Processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
2. The Data Controller shall evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. Depending on their relevance, the measures may include the following
  1. Pseudonymisation and encryption of personal data
  2. The ability to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services
  3. The ability to restore the availability and access to personal data in a timely manner in the event of a physical of technical incident
  4. A process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
3. According to Article 32 GDPR, the Data Processor shall also – independently from the Data Controller – evaluate the risks to the rights and freedoms of natural persons inherent in the processing and implement measures to mitigate those risks. To this effect, the Data Controller shall provide the Data Processor with all information necessary to identify and evaluate such risks.
4. Furthermore, the Data Processor shall assist the Data Controller in ensuring compliance with the Data Controller’s obligations pursuant Article 32 GDPR, by inter alia providing the Data Controller with information concerning the technical and organisational measures already implemented by the Data Processor pursuant to Article 32 GDPR along with all other information necessary for the Data Controller to comply with the Data Controllers obligations under Article 32 GDPR.
Use of Sub-processors
1. The Data Processor shall meet the requirements specified in Article 28(2) and (4) GDPR in order to engage another processor (a sub-processor).
2. The Data Processor has the Data Controllers general authorisation for the engagement of sub-processors. The Data Processor shall inform in writing the Data Controller of any intended changes concerning the addition or replacement of sub-processors at least 30 days in advance, thereby giving the Data Controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The list of sub-processors already authorised by the Data Controller can be found in Appendix B.
3. Where the Data Processor engages a sub-processor for carrying out specific processing activities on behalf of the Data Controller, the same data protection obligations as set out in this DPA shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this DPA and the GDPR. The Data Processor shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which the Data Processor is subject pursuant to this DPA and the GDPR.
4. A copy of such a sub-processor agreement and subsequent amendments shall – at the Data Controllers request – be submitted to the Data Controller, thereby giving the Data Controller the opportunity to ensure that the same data protection obligations as set out in this DPA are imposed on the sub-processor.
5. If the sub-processor does not fulfil his data protection obligations, the Data Processor shall remain fully liable to the Data Controller as regards the fulfilment of the obligations of the sub-processor. This does not affect the rights of the data subjects under the GDPR – in particular those foreseen in Articles 79 and 82 GDPR – against the Data Controller and the Data Processor, including the sub-processor.
Transfer of data to third countries or international organisations
1. Any transfer of personal data to third countries or international organisations by the Data Processor shall only occur in the basis of documented instructions from the Data Controller and shall always take place in compliance with Chapter 5 GDPR.
2. In case transfers to third countries or international organisations, which the Data Processor has not been instructed to perform by the Data Controller, is required under EU law or Member State law to which the Data Processor is subject, the Data Processor shall inform the Data Controller of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
3. Without documented instructions from the Data Controller, the Data Processor therefore cannot within the framework of this DPA:
  1. Transfer personal data to a data controller or a data processor in a third country or in an international organisation.
  2. Transfer the processing of personal data to a sub-processor in a third country.
  3. Have the personal data processed by the Data Processor in a third country.
4. The Data Controllers instructions regarding the transfer of personal data to a third country including, if applicable, the transfer tool under Chapter V GDPR.
Assistance to the Data Controller
1. Taking into account the nature of the processing, the Data Processor shall assist the Data Controller by appropriate technical and organisational measures, insofar as this is possible, in the fulfilment of the Data Controllers obligations to respond to requests for exercising the data subjects rights laid down in Chapter 3 GDPR.
Notification of personal data breach
1. In case of any personal data breach, the data processor shall, without undue delay after having become aware of it, notify the Data Controller of the personal data breach.
2. The Data Processors notification to the Data Controller shall, if possible take place within 24 hours after the Data Processor has become aware of the personal data breach to enable the Data Controller to comply with the Data Controllers obligations
Erasure and return of data
1. On termination of the provision of personal data processing services, the Data Processor shall be under obligation to return all the personal data to the Data Controller and delete existing copies unless Union or Member State law requires storage of the personal data.
Audit and inspection
1. The Data Processor shall make available to the data controller, all information necessary to demonstrate compliance with the obligations laid down in Article 28 GDPR, this DPA and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller. The procedures for inspection and audits are described in appendix c.
The Parties agreement on other terms
1. The parties may enter into other agreements about the processing of personal data, as long as they do not contradict directly or indirectly with the clauses set forth in this DPA or prejudice the fundamental rights or freedoms of the data subjects and the protection afforded by the GDPR.
2. Commencement and termination
  1. This DPA shall become effective on the data of both parties signature.
  2. Both parties shall be entitled to require this DPA renegotiated if changes to the law or inexpediency of the clauses set forth herein should give rise to such negotiations.
  3. This DPA shall apply for the duration of the provision of personal data processing services. For the duration of the provision of personal data processing services, this DPA cannot be terminated unless another agreement governing the provision of personal data processing services have been agreed between the parties.
  4. If the provision of personal data processing services is terminated, and the personal data is deleted or returned to the Data Controller pursuant to clause 10.1, this agreement may be terminated by written notice by either party.
3. Signature

Date	Date
Name and title Data Controller	Jorge Lluch, COOData Processor

Appendix A

Information about the processing

A.1 The purpose and nature of the Data Processors processing of personal data on behalf of the Data Controller is:

To provide the contracted services as described in the Master Subscription Agreement, such as the preparation of financial and management reporting.

A.2: The processing potentially includes the following types/categories of personal data about the data subjects:

Data subjects: employee data, customer data

Potential Categories of personal data: name, salary, location, performance data (bonus attainment), personal financial information (account balance, loans, etc.), bank account number

Appendix B

Primary sub-processors:

NAME	ADDRESS	Type of Service	DESCRIPTION OF PROCESSING
Amazon Web Services	Burlington Plaza, 1 Burlington Rd, Dublin 4, D04 RH96, Ireland	Infrastructure Provider	Collecting, Storing, structuring. modifying and destroying
Microsoft Corporation	One Microsoft Way, Redmond, WA 98052, United States	Infrastructure Provider	Collecting, Storing, structuring. modifying and destroying
Sentry	45 Fremont Street8th FloorSan Francisco, CA 94105, United States	Application monitoring and error tracking	Organising, structuring, storing and consulting
Datadog	620 8th Avenue, Floor 45, New York, NY 10018, United States	Data warehousing of analytics data	Collecting, organising, structuring, storing and consulting
Jira	Atlassian B.V.c/o Atlassian, Inc.350 Bush Street, Floor 13San Francisco, CA 94104, United States	Internal support collaboration	Collecting, storing, consulting
Slack Technologies	Slack Technologies Limited4th Floor, One Park PlaceHatch Street UpperDublin 2, Ireland	Messaging Services	Collecting, storing, consulting
Mixpanel	One Front Street, 28th floor San Francisco, CA 94111	Analytics Data	Collecting, organising, structuring, storing and consulting
Zendesk	989 Market St San Francisco, CA, 94103-1708 United States	Customer Support	Collecting, structuring, consulting
Segment	100 California Street Suite 700 San Francisco, CA 94111 United States	Analytics Data	Collecting, structuring
Magic Bell	2261 Market Street 4311 San Francisco, California 94114 United States	System Notifications	Collecting, organising, structuring, storing and consulting
WorkOS	548 Market St Pmb 86125, San Francisco, California, 94104, United States	Single-Sign-on Service	Collecting, storing and structuring

Optional sub-processors:

Please note that data will be transmitted to OpenAI subsequent to anonymization.

NAME	ADDRESS	Type of Service	DESCRIPTION OF PROCESSING
OpenAI, LLC	‍3180 18th St, San Francisco, California, 94110	AI features	Collecting, storing and structuring
Finch	2412 Harrison Street, Apt 105, San Francisco, CA 94110, United States	API for HR systems integration	Collecting, storing and structuring

Appendix C

Instructions pertaining to the use of personal data

C.1: The instruction for the processing

The Data Processor shall process the personal data only on documented instructions from the Data Controller. The Data Controller may give such instructions throughout the duration of the contract.

The Data Processor shall immediately inform the data controller if it is unable to follow those instructions.

C.2: Security of processing

The Data Processor shall at all times during the term of this DPA maintain information security, data governance and other controls designed to protect information shared by the Data Controller with the Data Processor from unauthorized access, acquisition, use, disclosure, theft, or compromise, including for any purpose other than providing the Services. In this regard, the Data Processor agrees to comply with the AICPA’s SOC 2 framework. Data Processor’s documentation about its information security practices and controls shall be made available to the Data Controller upon the Data Controller’s written request; provided that the Data Controller agrees to keep such policies confidential.

C.3: Assistance to the data controller

The data processor shall insofar as this is possible – within the scope and the extent of the assistance specified below – assist the data controller in accordance with Clause 9.1. and 9.2. by implementing the following technical and organisational measures:

Please refer to Abacum SOC 2 Compliance documentation provided to the Data Controller via email.

C.4. Storage period/erasure procedures

Processing by the data processor shall only take place for the duration of the contractual agreement. After the end of the provision of the processing services, the data processor shall, at the choice of the data controller, delete all personal data processed on behalf of the data controller and certify to the data controller that it has done so, or return to the data controller all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data processor shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data processor that prohibit return or deletion of the personal data, the data processor warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law.

C.5. Processing location

Processing of the personal data under the Clauses cannot be performed at other locations than the following without the data controller’s prior written authorisation:

AWS EU-West-1 Region (Ireland)

AWS EU-Central-1 Region (Frankfurt)

C.6. Instruction on the transfer of personal data to third countries

The data processor shall only disclose the personal data to a third party on documented instructions from the data controller. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data processor or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data processor with all the other safeguards under these Clauses, in particular purpose limitation.

C.7. Procedures for the data controller’s audits, including inspections, of the processing of personal data being performed by the data processor

The data processor shall promptly and adequately deal with enquiries from the data controller that relate to the processing under these Clauses.
The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data processor shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
The data processor shall make available to the data controller all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data controller’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data controller may take into account relevant certifications held by the data processor.
The data controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data processor and shall, where appropriate, be carried out with reasonable notice.
The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.