DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) is made between Cognito, LLC., a South Carolina corporation (“Cognito Forms”) and U2 Fans Tour Group (“Customer” or “Controller” or “U2 Fans Tour”) as an addendum to the Cognito Forms Terms of Service (the “Terms of Service”) in compliance with the GDPR. This DPA is effective as of 5/24/2018 (“Effective Date”), which is the date U2 Fans Tour indicated its acceptance of this DPA electronically. This DPA was electronically signed by Phil Chambers, director on behalf of U2 Fans Tour on the Effective Date.
U2 Fans Tour is a Controller of Personal Data collected via their forms and/or managed by their Account. Cognito Forms is the Processor of this data on behalf of U2 Fans Tour. U2 Fans Tour will be responsible for Controller obligations in this DPA and/or ensure that the Controller they work with fulfills these obligations. Specifically, U2 Fans Tour will ensure that:
all applicable posted Privacy Policies permit use of Cognito Forms by U2 Fans Tour,
explicit authorization or consent has been obtained for use of Cognito Forms by U2
Fans Tour to process this Personal Data, and
no additional agreements have been established that would prohibit use of Cognito
Forms by U2 Fans Tour.
Where individual provisions of this DPA are invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
Upon the incorporation of this DPA into the Terms of Service, the parties indicated above are agreeing to the Standard Contractual Clauses (where and as applicable) and all appendixes attached thereto. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Exhibit 1, the Standard Contractual Clauses shall prevail.
Cognito Forms and U2 Fans Tour hereby agree to the terms and conditions of this DPA in compliance with the GDPR.
“Account” means the business arrangement between a Controller and Cognito Forms that
authorizes the Controller to use Cognito Forms services in accordance with the Terms of Service. Each Account is represented as an “organization” in Cognito Forms, and this agreement applies to the organization U2 Fans Tour.
“Controller” means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer” means the Controller who has entered into the Terms of Service with Cognito Forms.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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.
“Personal Data” means any information relating to an identified or identifiable individual where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency, or other body which processes Personal Data on behalf of the Controller.
"Services" means the services and other activities to be supplied to or carried out by or on behalf of Processor for the Controller pursuant to the Terms of Service.
“Standard Contractual Clauses” means the clauses attached hereto as Exhibit 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
"Sub-processor" means any person appointed by or on behalf of Processor to Process Personal Data on behalf of the Controller in connection with the Terms of Service.
“Terms of Service” means the agreement between Cognito Forms and its Customer as set forth at https://www.cognitoforms.com/terms.
2. Details of Data Processing
2.1 Subject Matter
The subject matter of the data processing under this DPA is the Customer data.
As between Cognito Forms and Customer, the duration of the data processing under this DPA is until the termination of this addendum in accordance with its terms.
2.3 Nature and Purpose
2.4 Types of Personal Data
Determined by Controllers to fulfill the purpose of their use of the Cognito Forms service.
2.5 Categories of Data Subjects
Any individual accessing and/or legally using the Services authorized through the Customer's Account. Any individual who uses the Services to submit personal data to the Customer.
3. Obligations and Rights of Controller
Within the scope of this DPA and the Terms of Service, U2 Fans Tour is the Controller of Personal Data, and Cognito Forms shall process Personal Data only as a data Processor acting on Controller’s behalf.
The Controller shall comply with its obligations as a Data Controller under GDPR in respect of its disclosure and transfer of Personal Data to the Processor, the processing of Customer Data, and any processing instructions it issues. Controller must provide notice and obtain all consents and rights necessary under GDPR for Processor to process Customer Data and provide the Services pursuant to the Terms of Service and this DPA.
Controller shall inform Processor comprehensively and without undue delay about any errors or irregularities related to statutory provisions on the Processing of Personal Data.
4. Obligations and Rights of Processor
Processor shall process Personal Data only for the purposes described in this DPA and only in accordance with Controller’s documented lawful instructions.
The parties agree that this DPA and the Terms of Service set out the Customer’s complete and final instructions to Processor in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Controller and Processor.
If the Processor believes that an instruction of the Controller infringes the GDPR, it shall immediately inform the Controller without delay. If Processor cannot process Personal Data in accordance with the instructions due to a legal requirement under any applicable European Union or Member State law, Processor will (i) promptly notify the Controller of that legal requirement before the relevant Processing to the extent permitted by the GDPR; and (ii) cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as the Controller issues new instructions with which Processor is able to comply. If this provision is invoked, Processor will not be liable to the Controller under the Terms of Service for any failure to perform the applicable services until the Controller issues new instructions regarding the Processing.
5.1 Security Measures
Processor shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from security incidents and to preserve the security and confidentiality of the Personal Data, in accordance with the security standards described in the Terms of Service and this DPA.
5.2 Updates to Security Measures
Controller is responsible for reviewing the information made available by Processor relating to data security and making an independent determination as to whether the Services meet Controller’s requirements and legal obligations under the GDPR. Controller acknowledges that the security measures are subject to technical progress and development and that Processor may update or modify the security measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Controller.
5.3 Controller Responsibilities
Notwithstanding the above, Controller agrees that except as provided by this DPA, Controller is responsible for its secure use of the Services, including securing its Account authentication credentials, protecting the security of Personal Data when in transit to and from the Services, and taking any appropriate steps to securely encrypt or backup any Personal Data uploaded to the Services.
Processor shall ensure that any personnel authorized to process Customer Data on its behalf, including employees, affiliates and sub-processors, is subject to confidentiality obligations, whether contractual or statutory, with respect to that Customer Data.
7. Personal Data Breach
In the event of a security breach that may affect Personal Data, Processor will notify Controller of the breach upon becoming aware of the breach without undue delay. Processor will provide a description of the nature of the breach and affected data. If the breach compromises Personal Data collected by Controller, the Controller is obligated to promptly notify all affected parties.
8. Data Subject Rights
Processor will provide reasonable assistance, including by appropriate technical and organizational measures and taking into account the nature of the Processing, to enable Controller to respond to any request from Data Subjects seeking to exercise their rights under the GDPR with respect to Personal Data (including access, rectification, restriction, deletion or portability of Personal Data, as applicable), to the extent permitted by the law. If such request is made directly to Processor, Processor will promptly inform Controller and will advise Data Subjects to submit their request to the Controller. Controller shall be solely responsible for responding to any Data Subjects’ requests. Controller shall reimburse Processor for the costs arising from this assistance.
9.1 Authorized Sub-processors
Processor shall enter into a written agreement with any Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by the GDPR and remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Processor to breach any of its obligations under this DPA.
9.2 Changes to Sub-processors
remedy will be to terminate their Account, thus terminating this DPA and the Terms of Service agreement and ending further Processing of Personal Data on their behalf.
10. Data Transfers
To the extent that Cognito Forms processes any Personal Data protected by the GDPR in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that Cognito Forms shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Personal Data by virtue of having self-certified its compliance with Privacy Shield. Processor agrees to protect such Personal Data in accordance with the requirements of the Privacy Shield Principles.
11. Deletion or Retrieval of Personal Data
Processor shall, at the choice of the Controller, delete or return all Personal Data to the Controller after the end of the provision of services relating to processing. Controller must inform and instruct Processor on return of data in advance of terminating the agreement, as well a bear any additional cost arising with the return or deletion of Personal Data.
If Controller terminates the Terms of Service, by deleting the organization U2 Fans Tour, without prior written notification to Processor, Processor will permanently delete all Personal Data in its possession.
Clause 12 - Obligation after the termination of personal data-processing services
The parties agree that on the termination of the provision of data-processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 - to the Standard Contractual Clauses
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
A. Data exporter
The data exporter is the Customer, as defined in the Cognito Forms Terms of Service.
B. Data importer
The data importer is Cognito, LLC, a South Carolina based limited liability corporation that provides web-based form building tools and services.
C. Data subjects
Categories of data subjects set out in Section 2 of the Data Processing Agreement to which the Clauses are attached.
D. Categories of data
Categories of personal data set out under Section 2 of the Data Processing Agreement to which the Clauses are attached.
E. Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
F. Processing operations
The processing activities set out under Section 2 of the Data Processing Agreement to which the Clauses are attached.
APPENDIX 2 - Security Measures
The Security Measures applicable to the Services are described here: https://www.cognitoforms.com/features/security (as updated from time to time in accordance with Section 5.2 of this DPA).