This Data Processing Agreement (“DPA”) is incorporated into and forms a part of the Cloud Terms of Service (“Cobrowse.io Agreement”) between you and Cobrowse.io LLC (“Cobrowse.io”) with respect to your use of the Software. This DPA sets out the data protection requirements with respect to the processing of Customer Personal Data (as defined below) that is collected, stored, or otherwise processed by Cobrowse.io for the purpose of providing the Software. This DPA is effective on the effective date of the Cobrowse.io Agreement, unless this DPA is separately executed in which case it is effective on the date of the last signature.
1. Definitions
The following terms have the following meanings when used in this DPA. Any capitalized terms that are not defined in this DPA have the meaning provided in your Cobrowse.io Agreement.
“Customer,” “you” and “your” means the organization that agrees to an Order Form, or uses the Software subject to the relevant Cobrowse.io Agreement.
“Customer Personal Data” means any personal data that is processed through the Software on behalf of Customer.
“Data Protection Law” means, to the extent applicable, (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“EU GDPR”); (ii) the Data Protection Act 2018 and EU GDPR as incorporated into United Kingdom law by Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (“UK GDPR”); (iii) the Swiss Federal Act on Data Protection (“FADP”); (iv) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (Cal. Civ. Code §§ 1798.100 to 1798.199.100), together with the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 7000 to 7102) which may be amended from time to time (“CCPA”); and (v) any other data protection legislation applicable to the respective party in its role in the processing of Customer Personal Data under the Cobrowse.io Agreement.
“Data Subject Request” has the meaning given to it in Section 5.1.
“EEA” means the European Economic Area.
“Subprocessor” means any third-party data processor engaged by Cobrowse.io to process Customer Personal Data.
“Technical and Organizational Security Measures” has the meaning given to it in Section 3.2.
The terms “controller,” “data subject,” “personal data,” “personal data breach,” “processor,” “processing,” and “supervisory authority,” have the meanings set forth in the EU GDPR.
2. Data Processing
2.1. Scope and Roles. This DPA applies when Cobrowse.io processes Customer Personal Data in the course of providing the Software. In this context, Cobrowse.io is a “processor” to Customer, who may act as either a “controller” or “processor” with respect to Customer Personal Data.
2.2. Details of the Processing.
2.2.1. Subject Matter. The subject matter of the data processing under this DPA is Customer Personal Data.
2.2.2. Duration. The duration of the data processing under this DPA is until the expiration or termination of the Cobrowse.io Agreement in accordance with its terms.
2.2.3. Nature and Purpose. The purpose of the data processing under this DPA is the provision of the Software to Customer in accordance with the Cobrowse.io Agreement.
2.2.4. Types of Customer Personal Data. The types of Customer Personal Data processed under this DPA include any Customer Personal Data processed through the Software on behalf of Customer.
2.2.5. Categories of Data Subjects. The data subjects may include Customer’s customers, employees, suppliers, and end users, or any other individual whose personal data processed through the Software on behalf of Customer.
2.3. Compliance with Laws. Each party will comply with all applicable Data Protection Law in relation to the processing of Customer Personal Data.
2.4. Cobrowse.io’s Processing. Cobrowse.io will process Customer Personal Data only for the purposes of: (i) provisioning the Software, (ii) processing initiated by Customer in its use of the Software, and (iii) processing in accordance with your Cobrowse.io Agreement, this DPA, and your other reasonable documented instructions that are consistent with the terms of your Cobrowse.io Agreement. Any other processing will require prior written agreement between the parties.
2.5. Customer Obligations. Customer acknowledges that it controls the nature and contents of the Customer Personal Data. Customer will ensure that it has obtained all necessary and appropriate consents from and provided notices to data subjects where required by Data Protection Law to enable the lawful transfer of any Customer Personal Data to Cobrowse.io for the duration and purposes of this DPA and the Cobrowse.io Agreement.
3. Security
3.1. Confidentiality of Personnel. Cobrowse.io will ensure that any of our personnel and any subcontractors who have access to Customer Personal Data are under an appropriate obligation of confidentiality.
3.2. Security Measures. We will implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Customer Personal Data. The current technical and organizational security measures are described at https://cobrowse.io/security (“Technical and Organizational Security Measures”).
3.3. Breach Notification. We will notify you without undue delay if we become aware of a personal data breach affecting Customer Personal Data.
4. Subprocessors
4.1. Authorized Subprocessors. You acknowledge and agree that we may retain third parties to process Customer Personal Data on your behalf as Subprocessors in connection with the provision of the Software. We maintain a current list of our Subprocessors at: https://cobrowse.io/subprocessors which we will update at least 10 days before the addition or replacement of any Subprocessor.
4.2. Objections to Subprocessors. In the event you have a reasonable objection to any new Subprocessor, either (A) we will instruct such Subprocessor not to process Customer Personal Data on your behalf and, if possible, continue to provide the Software in accordance with the terms of the Cobrowse.io Agreement and any applicable Order Form, or (B) if we cannot provide the Software without the use of such Subprocessor, you may, as your sole and exclusive remedy, terminate this Agreement and any applicable Order Form and receive a pro-rata refund of any prepaid fees.
4.3 Subprocessor Obligations. Cobrowse.io will impose on each Subprocessor the same data protection obligations as are imposed on us under this DPA. We will be liable to you for the performance of the Subprocessors’ obligations to the extent required by Data Protection Law.
5. Data Subject Requests
5.1. To assist with your obligations to respond to requests from data subjects, please contact your Cobrowse.io account manager with the written request to retrieve, correct, or delete Customer Personal Data. Customer may use this mechanism to assist it in connection with its obligations under Data Protection Law, including its obligations related to any request from a data subject to exercise their rights under Data Protection Law (each, a “Data Subject Request”).
5.2. If a data subject contacts Cobrowse.io with a Data Subject Request that identifies Customer, to the extent legally permitted, we will promptly notify Customer. Solely to the extent that Customer is unable to access Customer Personal Data itself, and Cobrowse.io is legally permitted to do so, we will provide commercially reasonable assistance to Customer in responding to the Data Subject Request.
6. Requests for Customer Personal Data
6.1. If we receive a valid and binding legal order (“Request”) from any governmental body (“Requesting Party”) for disclosure of Customer Personal Data, we will use commercially reasonable efforts to redirect the Requesting Party to seek that Customer Personal Data directly from Customer.
6.2. If, despite our efforts, we are compelled to disclose Customer Personal Data to a Requesting Party, we will: (a) if legally permitted, promptly notify Customer of the Request to allow Customer to seek a protective order or other appropriate remedy. If we are prohibited from notifying Customer, we will use commercially reasonable efforts to obtain a waiver of that prohibition; (b) challenge any over-broad or inappropriate Request (including Requests that conflict with Data Protection Law); and (c) disclose only the minimum amount of Customer Personal Data necessary to satisfy the Request.
7. Cooperation
At your request and cost, Cobrowse.io will provide reasonable assistance to ensure compliance with the obligations under applicable Data Protection Law with respect to implementing appropriate security measures, personal data breach notifications, impact assessments and consultations with supervisory authorities or regulators, in each case solely related to processing of Customer Personal Data by Cobrowse.io.
8. Customer Audit Rights
8.1. Upon Customer’s request, and subject to the confidentiality obligations set forth in your Cobrowse.io Agreement, Cobrowse.io will make available to Customer (or Customer’s third-party auditor) information regarding Cobrowse.io’s compliance with the security obligations set forth in this DPA in the form of third-party certifications and audits.
8.2. If that information is not sufficient to demonstrate our compliance with the security obligations in the DPA, you may contact Cobrowse.io to request an audit of Cobrowse.io’s procedures relevant to the protection of Customer Personal Data, but only to the extent required under applicable Data Protection Law. Customer will reimburse Cobrowse.io for its reasonable costs associated with any such audit. Before the commencement of any such audit, Customer and Cobrowse.io will mutually agree upon the scope, timing, and duration of the audit.
8.3. Customer will promptly notify Cobrowse.io with information regarding any non-compliance discovered during the course of an audit, and Cobrowse.io will use commercially reasonable efforts to address any confirmed non-compliance.
9. Data Transfers
9.1. Data Processing Locations. Customer Personal Data will be hosted globally, unless it is previously agreed in writing between Customer and Cobrowse.io that the hosting will be restricted to the United States, European Economic Area, or other region(s) as mutually agreed. Customer acknowledges and agrees that Cobrowse.io provides support operations globally, and that such support operations may require the temporary access of Customer Personal Data from outside of the hosted region(s) solely for the purpose of providing support. When Customer Personal Data is transferred between countries and regions, such transfers by Customer will be governed by the transfer mechanisms described in Section 9.2 below.
9.2. Transfer Mechanism. Where the transfer of Customer Personal Data is from the EEA, Switzerland or the United Kingdom to a territory which has not been recognized by the relevant data protection authorities as providing an adequate level of protection for personal data according to Data Protection Law, Cobrowse.io agrees to process that Customer Personal Data in compliance with the provisions set out in Schedule 1 below, which forms an integral part of this DPA.
10. Return or Deletion of Data
Customer may retrieve or request the deletion of Customer Personal Data in writing at any time. Upon your request, Cobrowse.io will delete any Customer Personal Data as requested by Customer, unless we are legally required to store the Customer Personal Data, and subject to Cobrowse.io’s documented backup policies.
11. CCPA Obligations
For purposes of this Section 11, Customer Personal Data shall include “personal information” (as that term is defined under CCPA) that is processed through the Software on behalf of Customer. Cobrowse.io is a “service provider” as defined in CCPA.
11.1. Cobrowse.io will not:
11.1.1. retain, use, or disclose Customer Personal Data for any purpose other than providing the Software;
11.1.2. retain, use, or disclose Customer Personal Data outside of the direct business relationship between Cobrowse.io and Customer;
11.1.3. sell or share Customer Personal Data (as the terms “sell” and “share” are defined in CCPA); or
11.1.4. combine Customer Personal Data with personal information that Cobrowse.io has received from another Cobrowse.io customer, except as permitted under CCPA.
11.2. We will notify you if we determine that we can no longer comply with our obligations as a service provider under CCPA.
11.3. You have the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information that is protected under CCPA.
SCHEDULE 1
Cross border data transfers
1. Definitions
“Standard Contractual Clauses” means the applicable module(s) of the Standard Contractual Clauses approved by the European Commission in decision 2021/914, or any subsequent versions of the Standard Contractual Clauses which may be adopted by the European Commission from time to time. Upon the effective date of adoption for any revised Standard Contractual Clauses by the European Commission, all references in this DPA to the “Standard Contractual Clauses” shall refer to that latest version.
“Alternative Transfer Mechanism” means a mechanism, other than the Standard Contractual Clauses, that enables the lawful cross-border transfer of Customer Personal Data to a territory which has not been recognized by the relevant data protection authorities as providing an adequate level of protection for Customer Personal Data in accordance with Data Protection Law, including but not limited to any replacement international instruments for the invalidated EU-U.S. and Switzerland-U.S. Privacy Shield Frameworks or Binding Corporate Rules under Article 47 of EU GDPR.
2. Order of Precedence for Transfer Mechanisms
For transfers of Customer Personal Data that are subject to Section 9.2 of the DPA, the transfer mechanisms below shall apply in the following order of precedence in accordance with Data Protection Law: (A) Cobrowse.io’s certification to or adoption of an Alternative Transfer Mechanism; and (B) the Standard Contractual Clauses in accordance with Section 3 below.
3. Incorporation of the Standard Contractual Clauses
3.1. When the Standard Contractual Clauses are the applicable transfer mechanism in accordance with Section 2 above, the parties agree that:
3.1.1 Clause 7 will not apply.
3.1.2 in Clause 9(a), Option 2 will apply, and the time period for prior notice of Subprocessor changes will be as set forth in Section 4.1 of the DPA.
3.1.3 in Clause 11(a), the optional language will not apply.
3.1.4 in Clause 17, Option 1 will apply, and the Standard Contractual Clauses will be governed by the law of the Republic of Ireland.
3.1.5 in Clause 18(b), disputes will be resolved before the courts of the Republic of Ireland.
3.2. For purposes of Annex I, Part A of the Standard Contractual Clauses (List of Parties):
3.2.1 Data Exporter: Customer. Contact Details: Customer’s account owner email address, or to the email address(es) for which Customer elects to receive legal communications. Data Exporter Role: Data Exporter’s role is outlined in Section 2 of the DPA. Signature & Date: By entering into the Cobrowse.io Agreement, Data Exporter is deemed to have signed the Standard Contractual Clauses, including their Annexes and configured according to Section 3 of this Schedule I to the DPA, as of the effective date of the Cobrowse.io Agreement.
3.2.2 Data Importer: Cobrowse.io LLC. Contact Details: privacy@cobrowse.io Data Importer Role: Data Importer’s role is outlined in Section 2 of the DPA. Signature & Date: By entering into the Cobrowse.io Agreement, Data Importer is deemed to have signed the Standard Contractual Clauses, including their Annexes and configured according to Section 3 of this Schedule 1 to the DPA, as of the effective date of the Cobrowse.io Agreement.
3.3. For purposes of Annex I, Part B of the Standard Contractual Clauses (Description of Transfer):
3.3.1 The categories of data subjects are described in Section 2.2.5 of the DPA.
3.3.2 The forms of Customer Personal Data transferred are described in Section 2.2.4 of the DPA.
3.3.3 The frequency of the transfer is on a continuous basis for the duration of the Cobrowse.io Agreement.
3.3.4 The nature and purpose of the processing is described in Section 2.2.3 of the DPA.
3.3.5 The period of retention of Customer Personal Data in relation to the processing will end upon customer’s written request.
3.3.6 For transfers to Subprocessors, the subject matter and nature of the processing is described at: https://cobrowse.io/subprocessors. The duration of processing by Subprocessors is the same as by Data Importer.
3.4. For purposes of Annex I, Part C of the Standard Contractual Clauses (Competent Supervisory Authority), the competent supervisory authority/ies shall be determined in accordance with EU GDPR and Clause 13 of the Standard Contractual Clauses.
3.5. Sections 3 and 4.3 of the DPA contain the information required under Annex II of the Standard Contractual Clauses (Technical and Organizational Measures).
3.6. In addition to the above stipulations, each of the following forms part of the Standard Contractual Clauses and sets out the parties’ understanding of their respective obligations under the Standard Contractual Clauses:
3.6.1 Clause 8.9 of the Standard Contractual Clauses: Audit. Data Exporter acknowledges and agrees that it exercises its audit right under Clause 8.9 by instructing Data Importer to comply with the audit obligations described in Section 8 (Customer Audit Rights) of the DPA.
3.6.2 Clause 9(c) of the Standard Contractual Clauses: Disclosure of Subprocessor agreements. The parties acknowledge that Data Importer may be restricted from disclosing onward subprocessor agreements to Data Exporter due to subprocessor confidentiality restrictions. Even where Data Importer cannot disclose a subprocessor agreement to Data Exporter, the parties agree that, upon the request of Data Exporter, Data Importer shall provide all information it reasonably can in connection with such subprocessing agreement to Data Exporter.
3.6.3 Clause 12 of the Standard Contractual Clauses: Liability. To the greatest extent permitted under Data Protection Law, any claims brought under the Standard Contractual Clauses will be subject to any aggregate limitations on liability set out in the Cobrowse.io Agreement.
4. Transfers of Customer Personal Data Protected by FADP
4.1. With respect to transfers of Customer Personal Data protected by FADP, the Standard Contractual Clauses will apply in accordance with Sections 2 and 3 above, with the following modifications:
4.1.1 any references in the Standard Contractual Clauses to “Directive 95/46/EC” or “Regulation (EU) 2016/679” shall be interpreted as references to FADP;
4.1.2 references to “EU”, “Union”, “Member State” and “Member State law” shall be interpreted as references to Switzerland and Swiss law, as the case may be; and
4.1.3 references to the “competent supervisory authority” and “competent courts” shall be interpreted as references to the Swiss Federal Data Protection and Information Commissioner and competent courts in Switzerland.
5. Transfers of Customer Personal Data Protected by UK GDPR
5.1. With respect to transfers of Customer Personal Data protected by UK GDPR, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued under S119A(1) Data Protection Act 2018 (“UK Addendum”), shall apply and be incorporated by reference into this DPA, with Part 1: Tables completed in accordance with the applicable stipulations in Section 3 of this Schedule 1. Either data exporter or data importer may terminate the UK Addendum pursuant to Section 19 of the UK Addendum if, after a good faith effort by the parties to amend the DPA to account for the approved changes and any reasonable clarifications to the UK Addendum, the parties are unable to come to agreement. To the extent of any conflict between Section 3 of this Schedule 1 and any mandatory clauses of the UK Addendum, the UK Addendum shall govern to the extent UK GDPR applies to the transfer.