Data Processing Agreement

Contract for Data Processing by chatarmin.com GmbH according to Art. 28 GDPR, 08.07.2024

Please note that the German version of this Data Processing Agreement is the original and is authoritative in case of any interpretation issues. Translations are provided for informational purposes only and are not legally binding.

Art. 28 GDPR sets specific requirements for data processing. To meet these special requirements, the contracting parties enter into this data processing contract in addition to the Terms of Service. It applies to all activities related to the main contract where employees of the contractor or agents of the contractor process personal data (hereinafter "data") of the client. The definitions of the GDPR apply.

The definitions of the GDPR apply.

Chatarmin (WhatsApp Marketing Tool)

1. Subject of the Contract and the Client's Right to Issue Instructions

1. The subject of this contract is the services of the contractor for the client in the area of communication via WhatsApp using the chatarmin solution. Additionally, reference is made to Appendix 1 of this contract and the Terms of Service. If the commissioned service changes, this data processing contract in Appendix 1 must be adjusted and supplemented accordingly.

2. The client, as the responsible party, is solely responsible for assessing the legality of the data processing according to the GDPR.

3. In providing the service, the contractor gains access to personal data and processes this data exclusively on behalf of and according to the instructions of the client, unless the contractor is required by Union or Member State law to process it otherwise.

4. The instructions of the client are specified in this contract and can be changed, supplemented, or replaced by the client in at least documented electronic format through individual instructions. If the contractor is required by European Union or Member State law to process data further, they will inform the client of these legal requirements before processing (Art. 28 para. 3 lit. a) GDPR).

5. If the contractor believes that an instruction from the client violates data protection regulations, they must inform the client immediately. The contractor is entitled to suspend the execution of the instruction until it is confirmed or modified by the client. The contractor may refuse to execute an obviously illegal instruction without facing negative consequences. The client is responsible for issuing legally valid instructions (Art. 28 para. 3 sentence 3 GDPR).

6. The term of this contract corresponds to the term of the main contract unless additional obligations or termination rights arise from the following provisions.

2. Technical and Organizational Measures

1. The contractor complies with legal data protection requirements. Information of the client will not be disclosed to third parties without explicit instruction from the client. Documents and data are secured against unauthorized access considering the state of the art.

2. The contractor organizes their internal operations to meet the special requirements of data protection and ensures that all necessary technical and organizational measures to protect the client's data according to Art. 32 GDPR are taken. Reference is made to Appendix 2.

3. The client reviews the technical and organizational measures of the contractor before data processing begins and regularly thereafter. Changes to the agreed security measures can be made as long as they do not fall below the contractually agreed protection level.

3. Confidentiality

The contractor and their employees are prohibited from processing personal data without authorization. The contractor commits all individuals involved in the processing and fulfillment of this contract to confidentiality. The confidentiality obligations remain even after the termination of this contract or the employment relationship between the employee and the contractor.

4. Contractor's Information Obligations

1. In case of disruptions, suspected data protection violations, breaches of contractual obligations by the contractor, suspected security incidents, or other irregularities in the processing of personal data by the contractor or their personnel, the contractor will inform the client immediately in writing or documented electronic format. The same applies to audits by the data protection supervisory authority concerning this contract.

2. The notification of a personal data protection breach to the client will include, if possible, the following information:

a) a description of the nature of the personal data breach, including the categories and approximate number of affected individuals and records, if possible;

b) a description of the likely consequences of the breach, and

c) a description of the measures taken or proposed by the contractor to address the breach and mitigate its possible adverse effects.

3. The contractor takes immediate measures to secure the data and mitigate possible adverse effects on the affected individuals, informs the client, and requests further instructions.

4. If the client's data at the contractor is endangered by seizure, attachment, insolvency, or similar events, the contractor will inform the client immediately unless prohibited by court or official order. The contractor will inform all relevant parties that the decision-making authority over the data lies solely with the client as the "controller" according to the GDPR.

5. The contractor supports the client with appropriate technical and organizational measures to fulfill their obligations under Art. 12 to 22 (Art. 28 para. 3 lit. e) GDPR) and Art. 32 to 36 GDPR (Art. 28 para. 3 lit. f) GDPR).

5. Client's Control Rights

1. The contractor agrees to provide the client with all information and evidence required to conduct an audit of the contractor's technical and organizational measures upon oral, written, or electronic request within a reasonable timeframe.

2. Inspections by the client or their auditors, who must not be competitors of the contractor, can be conducted during normal business hours with 14 days' notice. The client conducts audits only to the necessary extent and in a manner that does not unreasonably disrupt the contractor's operations. The contractor may charge for assistance during an inspection, as agreed in a separate contract.

6. Use of Subcontractors

1. The contractually agreed services or the following partial services are carried out with the involvement of subcontractors listed in Appendix 3. All subcontractors already involved and approved by the client at the time of the contract conclusion are listed in Appendix 3. The client grants general approval to involve additional subcontractors for processing client data (subcontractors). We are obliged to inform our clients in writing of any new or changing subcontractors. Additionally, we enter into comparable data processing agreements with all subcontractors. We notify our clients at least 14 days in advance in writing of any intended changes to this list by adding or replacing subcontractors, giving the controller sufficient time to object to these changes before the subcontractor is engaged. The right to object under Art. 28 para. 2 sentence 2 GDPR expires if no objection is raised in writing within 14 days after notification. In case of an objection, both parties have the right to terminate the main contract and this data processing agreement with three months' notice.

2. A subcontractor relationship under these provisions does not exist if the contractor engages third parties for ancillary services. These include, for example, postal, transport, and shipping services, cleaning services, telecommunication services without a direct connection to services provided to the client, and security services. Maintenance and inspection services constitute subcontractor relationships if provided for IT systems used in delivering services to the client.

7. Liability

The client and contractor are liable to affected individuals according to the provisions of Art. 82 GDPR.

8. Termination of the Main Contract

1. Upon termination of the main contract or at any time upon request by the client, the contractor will return all documents, data, and storage media provided by the client or, at the client's request, delete them unless there is a legal obligation to retain personal data. This also applies to any data backups held by the contractor. The contractor must provide documented proof of proper deletion of any remaining data.

2. The contractor is obliged to keep data confidential even after the termination of the main contract. This agreement remains valid as long as the contractor has personal data provided by or collected for the client.

9. Final Provisions

1. The parties agree that the contractor cannot claim any right of retention regarding the data to be processed or the associated data carriers.
2. Changes and additions to this agreement must be in writing or documented electronic format.
3. If any provision of this agreement is or becomes invalid or unenforceable, the validity of the remaining provisions remains unaffected, and the legal regulations of Art. 28 GDPR apply.
4. This agreement is governed by Austrian law. The exclusive place of jurisdiction is Vienna.

Appendices:

Appendix 1 – Description of affected individuals/groups and special data/data categories

Appendix 2 – Technical and organizational measures of the contractor

Appendix 3 – Subcontractors

Appendix 1 – Description of Affected Individuals/Groups and Special Data/Data Categories

Appendix 2 – Technical and Organizational Measures of the Contractor

Information on the technical and organizational measures taken

The following measures for confidentiality, integrity, availability, and resilience, as well as procedures for regular review, assessment, and evaluation, have been implemented.

1. Confidentiality

Confidentiality = Personal data must not be made available or disclosed to unauthorized persons or organizations.

a.) Access Control to Data Processing Facilities where Personal Data is Processed

= Measures to prevent unauthorized access to data processing facilities

Alarm system; securing premises, windows, shafts; security locks and key policies, as well as logging key issuance; video surveillance of building entrances; visitor log; locked doors when unattended.

b.) Access Control to Data Processing Systems

= Measures to prevent unauthorized use of data processing systems

Two-factor authentication where possible, and in part biometric authorization; login with username and password; password complexity rules; use of a password safe; automatic screen lock & password entry for re-access; use of antivirus software; active firewall for hardware and software; no use of USB sticks; encryption of smartphones/laptops/tablets; user permissions based on the need-to-know principle; careful selection of service providers; clean desk policy; no print policy.

c.) Access Control

= Measures to allow only authorized personnel to access data, covering processing, usage, and storage (no unauthorized reading, copying, alteration, or removal)

Logging access to data processing systems (e.g., logging input, changes, and deletion); encryption of smartphones; authorization concept (rules for request, approval, implementation, and revocation of permissions), including rules for access to data backups; rights management by system administrators, minimizing the number of administrators (need-to-know principle).

d.) Pseudonymization/Anonymization

= Storing data in pseudonymized form, meaning it cannot be directly linked to individuals without additional information

No access to contact data stored in chatarmin; locally hosted test data; use of dummy data; separation of assignment data stored in separate, secured systems; deleting or fully anonymizing personal data after the statutory retention period; end-to-end encryption.

e.) Separation Control

= Separating data from different clients

Logical tenant separation software-wise; logical separation (folder structure, structured file storage); separation of development, test, and production environments; no use of personal real data for testing purposes; maintaining separate databases; multi-tenancy; authorization concept; defining database rights.

2. Integrity

Ensuring accuracy, unaltered state, and completeness of personal data

a.) Transfer Control

= No unauthorized reading, copying, or alteration of data during electronic transmission or transport

No transmission of sensitive data via email; end-to-end encryption; ban on certain transfers (e.g., USB stick, CDs, tapes); transmission in anonymized/pseudonymized form; transfer only on a need-to-know basis; transmission of paper documents in sealed, opaque envelopes; https encryption on the website; careful selection of service providers.

b.) Input Control

= Ability to determine whether, when, and by whom personal data was entered, changed, or removed in data processing systems

Machine logging of changes; differentiated user permissions (read, change, delete); assigning individual usernames; logging administrative activities.

3. Order Control

Ensuring order- and instruction-based data processing. Client's data is processed only according to their instructions. A data processing contract has been signed for this purpose. Subcontractors are engaged only according to the contractual provisions.

4. Availability & Resilience

Protection against destruction and loss and ensuring data usability Using redundant systems; implementing a backup concept; redundant system landscape.

5. Regular Review, Assessment & Evaluation of the Implemented Technical and Organizational Measures

Continuous review of TOMs; maintaining a processing register; appointing a data protection officer – contact: Mag.a iur. Elisa Drescher, [email protected]; employee training; documented processes for GDPR compliance (responding to access requests on time, reporting breaches to the supervisory authority); careful selection of service providers; implementation of the purpose limitation principle.

Appendix 3 - Approved Subcontractors

Approved subcontractors according to section 6 of this contract:

armincx (Customer Support Suite)

Data Processing Agreement according to Art. 28 GDPR

Art. 28 GDPR places specific requirements on data processing through a processor. In order to comply with these special requirements, the contracting parties conclude this contract in addition to the Terms of Service. It applies to all activities that are related to the main contract concluded and in which employees of the contractor or persons authorised by the contractor process personal data (hereinafter "data") of the client. The definitions of the GDPR apply.

1. Subject matter of the contract and the client's right to issue instructions

(1) The subject matter of this contract is the Contractor's services for the Client in the area of providing the armin.cx solution. In addition, reference is made to Annex 1 of this Agreement and the Terms of Use. In the event of changes to the commissioned service, this data processing agreement in Annex 1 must be adapted and supplemented accordingly.

(2) As the controller, the client is solely responsible for assessing the permissibility of data processing in accordance with the GDPR.

(3) When providing the service, the Contractor shall have access to personal data and shall process it exclusively on behalf of and in accordance with the instructions of the Client, unless the Contractor is obliged to process it differently under the law of the Union or the Member States to which it is subject.

(4) The Client's instructions are set out in this Agreement and may be amended, supplemented or replaced by the Client in at least documented electronic format by means of individual instructions (individual instructions). If the Contractor is obliged by the law of the European Union or the Member States to which it is subject to carry out further processing, it shall inform the Client of these legal requirements prior to processing. (Art. 28 para. 3 lit. a) GDPR).

(5) If the Contractor is of the opinion that an instruction from the Client violates data protection regulations, it must inform the Client of this immediately. The Contractor shall be entitled to suspend the implementation of the instruction in question until it is confirmed or amended by the Client. The Contractor may refuse to carry out an obviously unlawful instruction without incurring any negative consequences. The client is responsible for issuing legally valid instructions. (Art. 28 para. 3 sentence 3 GDPR).

(6) The term of this contract is based on the term of the main contract, unless the following provisions contain obligations or rights of cancellation that go beyond this.

2. Technical and organisational measures

(1) The Contractor shall comply with the statutory provisions on data protection. The Client's information shall not be passed on or disclosed to third parties without the Client's express instructions. Documents and data shall be secured against unauthorised access, taking into account the state of the art.

(2) The Contractor shall design the internal organisation in its area of responsibility in such a way that it meets the special requirements of data protection and ensures that it has taken all necessary technical and organisational measures to protect the Client's data in accordance with Art. 32 GDPR. Reference is made to Appendix 2.

(3) The Client shall review the Contractor's technical and organisational measures before commencing data processing and then regularly thereafter. Changes may be made to the agreed security measures, provided that these do not fall below the contractually agreed level of protection.

3. Confidentiality

The Contractor and its employees are prohibited from processing personal data without authorisation. The Contractor shall oblige all persons entrusted by it with the processing and fulfilment of this contract to maintain confidentiality. The confidentiality obligations shall also apply after termination of this contract or the employment relationship between the employee and the contractor.

4. Information obligations of the contractor

(1) In the event of disruptions, suspected data protection violations or breaches of contractual obligations of the Contractor, suspected security incidents or other irregularities in the processing of personal data by the Contractor, persons employed by the Contractor within the scope of the order or by third parties, the Contractor shall inform the Client immediately in writing or documented electronic format, insofar as they relate to this contract. The same applies to audits of the Contractor by the data protection supervisory authority, insofar as they relate to this contract.

(2) The notification of a personal data breach to the client shall contain the following information, where possible: a) a description of the nature of the personal data breach, including, where possible, the categories and number of data subjects concerned, the categories concerned and the number of personal data records concerned; b) a description of the likely consequences of the injury and c) a description of the measures taken or proposed to be taken by the Contractor to remedy the breach and, where appropriate, measures to mitigate its possible adverse effects.

(3) The Contractor shall immediately take the necessary measures to secure the data and minimise possible adverse consequences for the data subjects, inform the Client and request further instructions from the Client.

(4) Should the Client's data be jeopardised by seizure or confiscation, by insolvency or composition proceedings or by other events or measures by third parties, the Contractor shall inform the Client of this immediately, unless it is prohibited from doing so by court or official order. In this context, the Contractor shall immediately inform all competent authorities that the decision-making authority over the data lies exclusively with the Client as the "controller" within the meaning of the GDPR.

(5) Where possible, the Contractor shall support the Client with suitable technical and organisational measures in fulfilling its obligations under Art. 12 to 22 (Art. 28 para. 3 lit. e) GDPR) and Art. 32 to 36 GDPR (Art. 28 para. 3 lit. f) GDPR).

5. Control rights of the client

(1) The Contractor undertakes to provide the Client with all information and evidence required to carry out a check of the Contractor's technical and organisational measures within a reasonable period of time at the Client's verbal, written or electronic request.

(2) Inspections by the Client or its authorised inspectors, who may not be in a competitive relationship with the Contractor, may be carried out during normal business hours and with a lead time of 14 days' notice. The Client shall only carry out inspections to the extent necessary and shall only disrupt the Contractor's operational processes in a proportionate manner. The Contractor may demand remuneration for assistance in carrying out an inspection. The remuneration shall be agreed in individual contracts.

6. Use of subcontractors

(1) The contractually agreed services or the partial services described below shall be carried out with the involvement of the subcontractors (sub-processors) listed in Annex 3. All other processors already involved and authorised by the client at the time of conclusion of the contract are listed in Annex 3. The client grants general authorisation to involve other processors with regard to the processing of client data (subcontractors). We are obliged to inform our clients about the involvement of or changes to other processors, whereby written information in text form is sufficient. Furthermore, we conclude comparable data processing agreements with all subcontractors. We inform our clients in writing at least 14 days in advance of any intended changes to this list by adding or replacing sub-processors and thus give the controller sufficient time to object to these changes before commissioning the sub-processor(s) concerned (right of objection pursuant to Art. 28 para. 2 sentence 2 GDPR). The right to object expires if you have not objected in writing within 14 days of receipt of the notification of the change or involvement. In the event of an objection, both parties have the right to terminate the main contract and this contract for commissioned processing with a notice period of 3 months.

(2) A subcontractor relationship within the meaning of these provisions does not exist if the Contractor commissions third parties with services that are to be regarded as purely ancillary services. These include, for example, postal, transport and dispatch services, cleaning services, telecommunications services with no specific connection to services provided by the contractor for the client and security services. Maintenance and testing services constitute subcontractor relationships requiring approval if they are provided for IT systems that are also used in connection with the provision of services for the client.

7. Liability

The client and contractor are liable to data subjects in accordance with the provisions of Art. 82 GDPR.

8. Termination of the main contract

(1) The Contractor shall return to the Client all documents, data and data carriers provided to it after termination of the main contract or at any time at the Client's request or - at the Client's request, unless there is a legal obligation to store the personal data - delete them. This also applies to any data backups at the Contractor. The Contractor shall provide documented proof of the proper deletion of any data still in existence.

(2) The Contractor shall be obliged to treat the data it has become aware of in connection with the main contract confidentially even after the end of the main contract. This agreement shall remain valid beyond the end of the main contract for as long as the Contractor has personal data that was forwarded to it by the Client or that it has collected for the Client.

9. Final provisions

(1) The parties agree that the defence of the right of retention by the Contractor with regard to the data to be processed and the associated data carriers is excluded.

(2) Amendments and supplements to this agreement must be made in writing or in a documented electronic format.

(3) Should individual provisions of this agreement be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions and the statutory provisions of Art. 28 GDPR shall apply.

(4) This agreement is subject to Austrian law. The exclusive place of jurisdiction is Vienna.

Attachments:

• Annex 1 - Description of data subjects/groups of data subjects and particularly sensitive data/categories of data
• Annex 2 - Technical and organisational measures of the contractor
• Annex 3 - Subcontractor

Annex 1 - Description of data subjects/groups of data subjects and particularly sensitive data/categories of data

Annex 2 - Technical and organisational measures of the contractor

Subsequent measures for confidentiality, integrity, availability and resilience as well as procedures for regular review, assessment and evaluation have been implemented.

1. Confidentiality

Confidentiality = personal data must not be made available or disclosed to unauthorised persons or organisations

a. Access control to data processing systems that are used to process personal data

= Measures to prevent unauthorised persons from gaining access to data processing systems

Alarm system; protection of properties, windows, shafts; security locks and key regulations as well as logging of key issue; video surveillance of building entrances; logging of visitors; locked doors during absence.

b. Access control to data processing systems

= Measures to ensure that data processing systems cannot be used by unauthorised persons

Two-factor authentication, where possible, and in some cases biometric approval; login using user name and password; regulations on password complexity; use of a password safe; automatic locking of the screen & password entry for renewed access; Use of anti-virus software; active firewall for hardware and software; no use of USB sticks; encryption of smartphones/laptops/tablets; create user authorisations (assignment according to the need-to-know principle); careful selection of service providers; clean desk policy; no-print policy.

c. Access control

Measures that only allow authorised persons to access the data; this applies to processing, use and storage (no unauthorised reading, copying, modification or removal)

Access logging to data processing systems (e.g. logging of entries, changes and deletions); encryption of smartphones; authorisation concept (rules for requesting, approving, implementing and withdrawing authorisations) including rules for accessing data backups; management of rights by system administrators and number of administrators reduced to the bare minimum (need-to-know principle).

d. Pseudonymisation/anonymisation

= Storage of the data in pseudonymised form, i.e. a personal reference cannot be established directly, but can be established by linking it with other data

No access to data subjects' contact data stored in chatarmin; locally hosted test data; use of dummy data; separation of allocation data and storage in separate and secure systems; personal data to be deleted/completely anonymised after expiry of the statutory retention period; end-to-end encryption

e. Separation control

=Data from different clients is stored separately

Logical client separation on the software side; logical separation (folder structure, structured file storage); separation of development, test and production environments; no use of personal real data for test purposes; management of separate databases; multi-client capability; authorisation concept; definition of database rights

2. Integrity

Ensuring the accuracy, integrity and completeness of personal data

a. Transfer control

= No unauthorised reading, copying or modification of data during electronic transmissions (e.g. e-mails) or transport

No sending of sensitive data by email; end-to-end encryption; prohibition of certain transfers (e.g. USB sticks, CDs, tapes); anonymised/pseudonymised transfer; transfer exclusively according to the need-to-know principle; transfer of paper documents in sealed, opaque envelopes; https encryption on the website; careful selection of service providers.

b. Input control

= it is possible to determine whether, when and by whom personal data has been entered, modified or removed from data processing systems

Automatic logging of changes; differentiated user authorisations (read, change, delete); assignment of individual user names; logging of administrative activities.

3. Order control

Order data processing in accordance with the order and instructions is guaranteed. The client's data is processed exclusively in accordance with the client's instructions. A data processing agreement has been concluded for this purpose. Subcontractors are only engaged by the client in accordance with the contractual provisions.

4. Availability & resilience

Protection against destruction and loss and guaranteeing the use of data

Utilisation of redundant systems; backup concept implemented; redundant system landscape.

5. Regular review, assessment & evaluation of the technical and organisational measures taken

Continuous review of TOMs; maintenance of a processing register; appointment of a data protection officer - contact details: Mag.a iur. Elisa Drescher, [email protected]; employee training; documented processes established for compliance with the GDPR (responding to requests for information in a timely manner, reporting breaches to the supervisory authority); careful selection of service providers; implementation of the purpose limitation principle;

Appendix 3 - Authorised subcontractors

Authorised subcontractors according to 6. of this contract:

Optional: Access only in conjunction with chatbot API