Last updated: October 4, 2021
This Data Processing Addendum (“DPA”) is incorporated by reference into impro.AI’s Master Services Agreement governing Customer’s use of impro.AI’s services (the “Services Agreement”) entered by and between you, the Customer (as defined in the Services Agreement) (collectively, “you”, “your”, “Customer”), and impro.AI (“Impro”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by impro.AI solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”.
WHEREAS, impro.AI is engaged in the provision of performance coaching services and solutions via impro.AI’s online platform and other designated applications (“Services”, as further defined below);
WHEREAS, in the course of providing the Services, impro.AI may process personal data, received directly from Authorized Participants, on behalf of such Authorized Participants (“Authorized Participant Data”, as further defined below);
WHEREAS, in the course of providing the Services, the Customer may also make available to impro.AI, and impro.AI may process, personal data which is under the control of the Customer (“Personal Data”, as further defined below);
WHEREAS, Data Protection Laws (as defined below) of many jurisdictions require that contracts involving the processing of Personal Data on behalf of a Controller contain certain safeguards;
AND WHEREAS, this DPA is designed to meet such requirements and the Parties intend that the processing activities carried out by impro.AI on behalf of the Customer in respect of Personal Data shall comply with the provisions of this DPA.
Unless otherwise defined in this DPA, capitalized terms used herein shall have the meanings assigned to such terms in the Services Agreement. As used in this DPA, the following terms have the following meanings:
Processor maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized use or disclosure of, or access to (i) Personal Data Processed on behalf of the Customer; or (ii)Personal Data transmitted, stored or otherwise Processed by a Sub-processor, where Processor becomes aware of such an incident (collectively, a “Data Incident”). Processor shall make reasonable efforts to identify the cause of such Data Incident and take those steps as Processor deems necessary and reasonable in order to remediate the cause of such a Data Incident to the extent the remediation is within Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users. Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without Processor’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by law, Customer shall provide Processor with reasonable prior written notice to provide Processor with the opportunity to object to such disclosure and in any case Customer will limit the disclosure to the minimum scope required.
Upon termination of the Services Agreement and subject thereto, Processor shall, at the choice of Customer (indicated through the Service or in written notification to Processor), delete or return to Customer all the Personal Data it Processes solely on behalf of the Customer in the manner described in the Services Agreement, and Processor shall delete existing copies of such Personal Data unless Data Protection Laws require or authorize the storage of the Personal Data. To the extent authorized or required by applicable law, Processor may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or for compliance with legal obligations.
Subject to any Section of the DPA and/or the Services Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Processor will Process Personal Data pursuant to the DPA and Services Agreement for the duration of the Services Agreement, unless otherwise agreed upon in writing.
The Personal Data processed may consist of name, e-mail address, mobile phone number, addresses, and, where applicable, hashed password of Participants, as well as other information received from Impro’s Customers, such as high-level insights into a Participant’s job performance.
The Data Subjects are Customer’s end users (Authorized Participants).
The data exporter and the data importer, as defined under impro.AI (“impro.AI”) Data Processing Addendum or other agreement or addendum effectively governing the processing of personal data by the data importer on behalf of the data exporter, including all annexes, exhibits and appendices thereto (“DPA”), each a “party“; together the “parties“, have agreed on the following Contractual Clauses (“Clauses“) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
The data exporter is the entity identified as “Customer” or “Controller” in the DPA.
The data importer is impro.AI and/or its sub-processor (as such term is used in the DPA), as determined by impro.AI in accordance with the terms of the DPA concerning cross-border data transfers.
The personal data transferred concern the categories of data subjects defined in the DPA.
Categories of data
The personal data transferred concern the categories of data defined in the DPA.
The personal data transferred will be subject to the basic processing activities defined in Schedule 1 to the DPA.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organisational security measures implemented by the data importer are as described in the DPA.