Data processing

Monday, October 12, 2020

1. BACKGROUND

1.1 raffle.ai (the "Data Processor") and Customer (the "Data Controller") enter into an Agreement concerning Data Controller's use of the Licensed Software and the SaaS Services as defined in the Agreement.

1.2 Data Controller has chosen Data Processor's service regarding anonymization of personal data on behalf of Data Controller. Consequently, Data Processor will process personal data on behalf of Data Controller for a short period of time prior to anonymization of the personal data by Data Processor. Consequently, this Data Processing Agreement (as defined below) is entered between the Data Controller and the Data Processor as a mandatory agreement pursuant to Article 28 of the GDPR (as defined below).

1.3 Applicable Data Protection Legislation (as defined below) requires that a written contract be entered into between a data controller and data processor, who processes personal data on behalf of the data controller, governing the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the data controller. Accordingly, the Parties have entered into this Data Processing Agreement.

1.4 The Agreement and the Data Processing Agreement are interdependent and cannot be terminated separately.

1.5 In the event of any inconsistency between the contents of the Agreement and the Data Processing Agreement in relation to data protection obligations, the Data Processing Agreement will prevail irrespective of any previous agreements between the Parties.

2. DEFINITIONS

2.1 Terms defined in the Agreement shall have the same meaning when used in this Data Processing Agreement, unless otherwise expressly stated herein.

2.2 In this Data Processing Agreement, unless the context otherwise requires:

  1. "Agreement" has the meaning ascribed to it in the Agreement between the parties
  2. "Data Processing Agreement" means this data processing agreement, including Appendix
  3. "Data Protection Legislation" means all the laws throughout the European Economic Area (EEA) and rules governing  protection of personal data as amended from time to time, including the GDPR (as defined below), relevant national legislation, including the Danish Data Protection Act, and, where relevant, the guidelines and rules issued by competent supervisory authorities.
  4. "General Data Protection Regulation" or "GDPR" means Regulation (EU) 2016/679 (General Data Protection Regulation) as amended from time to time.
  5. "Services" means the services and supplies provided by Data Processor as provider to Data Controller as customer under the Agreement.

2.3 The terms "personal data", "special categories of personal data", "process/processing", "controller", "processor", "data subject", "supervisory authority", "pseudonymisation", "technical and organisational measures" and "personal data breach" as used in this Data Processing Agreement shall be understood in accordance with the Data Protection Legislation, including the GDPR.

3. PROCESSING OF PERSONAL DATA

3.1 Data Processor shall process personal data on behalf of Data Controller in accordance with the Data Protection Legislation.

3.2 The personal data to be processed by Data Processor and the categories of data subjects are set out in Appendix 1 to this Data Processing Agreement.

3.3 Data Controller shall ensure that the processing of personal data is based on a legal basis pursuant to Data Protection Legislation.Data Controller shall ensure that the processing of personal data is based on a legal basis pursuant to Data Protection Legislation.

3.4 Data Processor may only process the personal data on documented instructions from Data Controller, unless required to do so pursuant to mandatory European Union rules and regulation or mandatory member state law to which Data Processor is subject. In that case, Data Processor must notify Data Controller of such legal requirement before the processing, unless the relevant law prohibits such notification on important grounds of public interest

3.5 Data Processor must ensure that the persons involved in the processing of personal data on behalf of Data Controller under the Data Processing Agreement have either committed themselves to confidentiality or are subject to a proper statutory duty of confidentiality and that they only process personal data in compliance with the Agreement, the Data Processing Agreement and the Data Protection Legislation.

3.6 Data Processor shall take the necessary steps to ensure that any person acting under the authority of Data Processor, and who has access to the personal data, does not process such personal data except on documented instructions from Data Controller.

3.7 Data Processor shall, upon request from Data Controller, provide access to all necessary information in order for Data Controller to ensure compliance with the obligations laid down in the Data Protection Legislation. Furthermore, Data Processor must allow and contribute to any audits, including inspections, conducted by Data Controller or an auditor authorized by Data Controller. Data Processor is entitled to receive separate compensation in this regard.

3.8 Data Processor must immediately notify Data Controller if, in Data Processor's opinion, an instruction from Data Controller is contrary to the Data Protection Legislation.

4. SECURITY MEASURES

4.1 Taking into account the state of art, the costs of implementation and the nature, scope, context and purposes of the processing as well as risk of varying likelihood and severity of the rights and freedoms of natural persons, Data Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.

4.2 Data Processor shall assist Data Controller by appropriate technical and organizational measures with the fulfilment of Data Controller's obligation to respond to requests for exercising the data subject's rights as laid down in the Data Protection Legislation. Data Processor shall be compensated for the time devoted in relation to the assistance with responses to requests regarding the data subject's rights. The specific compensation will be agreed upon separately.

4.3 Data Processor shall notify Data Controller without undue delay after becoming aware of a personal data breach. Furthermore, Data Processor shall assist Data Controller in ensuring compliance with Data Controller's obligations (i) to document any personal data breach, (ii) to notify the applicable supervisory authorit(y/ies) of any personal data breach, and (iii) to communicate such personal data breaches to the applicable data subjects in accordance with Articles 33 and 34 of the GDPR.

5. SUB-PROCESSING

5.1 By signing this Data Processing Agreement, Data Controller agrees that Data Processor may engage Sub- Contractors to assist in providing the Services. The list of sub-contractors currently engaged in processing personal data (hereinafter referred to as Sub-Processors) and the countries and facilities in which the personal data is processed, is stated below:

5.2 Any additions and/or changes to the list will be notified to Data Controller via email to the following email address: admin@raffle.ai. If Data Controller wishes to object to the sub-processing, Data Controller shall state so in writing as soon as the before mentioned notification is received. Data Controller's objection must be specific and justifiable. Absence of any objections from Data Controller shall be considered as a consent to the sub-processing.

5.3 Data Processor shall ensure that the sub-processing is lawful and that any and all Sub-Processors undertake and are subject to the same terms and obligations as Data Processor as set out herein

5.4 Data Processor warrants the legality of its Sub-Processors' processing of personal data. Data Processor shall remain responsible for all acts and omissions of its Sub-Processors, and the acts and omissions of those employed or engaged by Sub-Processors, as if such acts and omissions were performed by Data Processor itself.

6. TRANSFERS OF PERSONAL DATA TO A THIRD COUNTRY

6.1 By signing this Data Processing Agreement, Data Controller accepts that Data Processor may transfer personal data to a third country, i.e. a country outside the EEA. Data Processor will be required to ensure that such transfer is at all times lawful, including i.e. that there is an adequate level of protection of the transfer of the personal data.

7. DATA PROCESSOR'S GENERAL OBLIGATIONS

7.1 Data Processor must assist Data Controller in ensuring compliance with any of Data Controller's obligations pursuant to the Data Protection Legislation, including for instance obligations pursuant to Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the GDPR. Data Processor is entitled to receive separate compensation regarding such assistance and the specific compensation will be agreed upon separately.

8. LIABILITY

8.1 Data Processor shall only be liable for the damage caused by processing of personal data where Data Processor has not complied with obligations of the Data Protection Legislation that are specifically directed to data processors or where Data Processor has acted outside or contrary to lawful instructions of Data Controller. Data Processor's total liability towards Data Controller arising from breach of this Data Processing Agreement cannot exceed the total amount paid by Data Controller to Data Processor under the Agreement for the last twelve (12) months.

9. TERMINATION

9.1 This Data Processing Agreement shall automatically terminate upon any termination or expiration of the Agreement.

9.2 The Parties agree that at the termination or expiry of the Agreement and/or the Data Processing Agreement, Data Processor shall, at the choice of Data Controller, (i) return all data processed under the Agreement and/or the data Processing Agreement and any copies thereof to Data Controller, or (ii) delete all data processed under the Agreement and the Data Processing Agreement and certify to Data Controller that this has been done, including for avoidance of doubt delete such data from any computer, server, and/or any other storage device or media, unless European Union and/or member state law requires storage of such personal data.

APPENDIX 1 - CATEGORIES OF DATA SUBJECTS, TYPES OF PERSONAL DATA AND PROCESSING ACTIVITIES