This Data Processing Addendum (“DPA”) is entered into between (1) Customer; and (2) Pera.

1. Background

1. Purpose and Application. This document is incorporated into the Agreement and forms part of a written (including in electronic form) contract between Pera and Customer. This DPA applies to Personal Data processed by Pera and its Sub processors in connection with its provision of the Cloud Service.
2. Structure. Details of Processing and Technical and Organisational Measures are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.
3. GDPR. Pera and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 (“GDPR”), with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For illustration purposes, the Standard Contractual Clauses lists the relevant GDPR requirements and the corresponding sections in this DPA.
4. Governance. Pera acts as a Processor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents, and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use Pera as a Processor. Where authorizations, consent, instructions, or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Cloud Service. Where Pera informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.

2. Definitions

Capitalized terms not defined herein will have the meanings given to them in the Agreement.

1. “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; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to Pera be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
2. “Data Centre” means the location where the production instance of the Cloud Service is hosted for the Customer in the region agreed in an Order Form.
3. “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy regarding the processing of Personal Data under the Agreement (and includes, as far as it concerns the relationship between the parties regarding the processing of Personal Data by Pera on behalf of Customer, the GDPR as a minimum standard, irrespective of whether the Personal Data is subject to GDPR or not).
4. “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
5. “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein, and Norway.
6. “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by Customer or its Authorized Users into or derived from their use of the Cloud Service, or (ii) supplied to or accessed by Pera or its Sub processors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
7. “Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
8. “Processor” means a natural or legal person, public authority, agency, or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as sub processor of a processor which processes personal data on behalf of the controller.
9. “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply). The Standard Contractual Clauses current as of the effective date of the Agreement are available at this link.
10. “Sub processor” means Pera affiliates, and third parties engaged by Pera in connection with the Cloud Service and which process Personal Data in accordance with this DPA.

3. Duration

1. This DPA terminates after and insofar as the Processor has anonymised, deleted, or returned all Personal Data in accordance with article 10.
2. Neither of the Parties may terminate this DPA before the Contract terminates.

4. Security of processing

1. Appropriate Technical and Organizational Measures. Pera has implemented and will apply the technical and organizational measures set forth in Technical and Organisational Measures. Customer has reviewed such measures and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are appropriate considering the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
2. Changes. Pera applies the technical and organizational measures to Pera's entire customer base hosted out of the same Data Centre and receiving the same Cloud Service. Pera may change the measures at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.

5. Pera's obligations

1. Instructions from Customer. Pera will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions, and each use of the Cloud Service then constitutes further instructions. Pera will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Cloud Service. If any of the before-mentioned exceptions apply, or Pera otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Pera will immediately notify Customer (email permitted).
2. Processing on Legal Requirement. Pera may also process Personal Data where required to do so by applicable law. In such a case, Pera shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
3. Personnel. To process Personal Data, Pera and its Sub processors shall only grant access to authorized personnel who have committed themselves to confidentiality. Pera and its Sub processors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
4. Cooperation. At Customer’s request, Pera will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding Pera's processing of Personal Data or any Personal Data Breach. Pera shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing. Pera will correct or remove any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
5. Personal Data Breach Notification. Pera will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. Pera may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by Pera.
6. Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, Pera will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties.

6. Data export, return and anonymisation

1. Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Pera and Customer will find a reasonable method to allow Customer access to Personal Data.
2. Return and Anonymization of Personal Data. At the end of the Subscription Term and at the request of Customer, Pera will return the Personal Data to Customer. Pera may furthermore anonymise the Personal Data for archiving purposes in the public interest, scientific or historical research purposes and/or statistical purposes in accordance with article 89 GDPR and will inform the Data Subjects accordingly about these activities.

7. Certifications and audits

1. Customer Audit. Customer or its independent third-party auditor reasonably acceptable to Pera (which shall not include any third party auditors who are either a competitor of Pera or not suitably qualified or independent) may audit Pera's control environment and security practices relevant to Personal Data processed by Pera only if:
   1. Pera has not provided sufficient evidence of its compliance with the technical and organizational measures that protect the production systems of the Cloud Service through providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third-party auditor or Pera;
   2. A Personal Data Breach has occurred.
   3. An audit is formally requested by Customer’s data protection authority; or
   4. Mandatory Data Protection Law provides Customer with a direct audit right and provided that Customer shall only audit once in any twelve-month period unless mandatory Data Protection Law requires more frequent audits.
2. Other Controller Audit. Any other Controller may audit Pera's control environment and security practices relevant to Personal Data processed by Pera in line with Section 5.1 only if any of the cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by Pera on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
3. Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to Pera.
4. Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by Pera of this DPA, then Pera shall bear its own expenses of an audit. If an audit determines that Pera has breached its obligations under the DPA, Pera will promptly remedy the breach at its own cost.

8. Subprocessors

1. Permitted Use. Pera is granted a general authorization to subcontract the processing of Personal Data to Sub processors, provided that:
   1. Pera shall engage Sub processors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Sub processor’s processing of Personal Data. Pera shall be liable for any breaches by the Sub processor in accordance with the terms of this Agreement.
   2. Pera will evaluate the security, privacy and confidentiality practices of a Sub processor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
   3. Pera's list of Sub processors in place on the effective date of the Agreement will be made available to Customer, upon request including the name, address, and role of each Sub processor Pera uses to provide the Cloud Service.
2. New Sub processors. Pera’s use of Sub processors is at its discretion, provided that:
   1. Pera will inform Customer in advance (by email or by posting within the Cloud Service) of any intended additions or replacements to the list of Sub processors including name, address and role of the new Sub processor; and
   2. Customer may object to such changes as set out in Section 8.3
3. Objections to New Sub processors.
   1. If Customer has a legitimate reason under Data Protection Law to object to the new Sub processors’ processing of Personal Data, Customer may terminate the Agreement (limited to the Cloud Service for which the new Sub processor is intended to be used) on written notice to Pera. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of Pera's notice to Customer informing Customer of the new Sub processor. If Customer does not terminate within this thirty-day period, Customer is deemed to have accepted the new Sub processor.
   2. Within the thirty-day period from the date of Pera's notice to Customer informing Customer of the new Sub processor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect Pera's right to use the new Sub processor(s) after the thirty-day period.
   3. Any termination under this Section 8.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
4. Emergency Replacement. Pera may replace a Sub processor without advance notice where the reason for the change is outside of Pera’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, Pera will inform Customer of the replacement Sub processor as soon as possible following its appointment. Section 8.3 applies accordingly.

9. International processing

1. Conditions for International Processing. Pera shall be entitled to process Personal Data, including by using Sub processors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
2. Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as a safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses, then:
   1. Pera and Customer enter into the Standard Contractual Clauses:
   2. Customer enters into the Standard Contractual Clauses with each relevant Sub processor as follows, either (i) Customer joins the Standard Contractual Clauses entered into by Pera and the Sub processor as an independent owner of rights and obligations (“Accession Model”) or, (ii) the Sub processor (represented by Pera) enters into the Standard Contractual Clauses with Customer (“Power of Attorney Model”). The Power of Attorney Model shall apply if and when Pera has expressly confirmed that a Sub processor is eligible for it through the Sub processor list provided under Section 6.1(c), or a notice to Customer; and/or
   3. Other Controllers whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses with Pera and/or the relevant Sub processors in the same manner as Customer in accordance with Sections 7.2 (a) and (b) above. In such case, Customer will enter the Standard Contractual Clauses on behalf of the other Controllers.
3. Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and sub processor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.
4. Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the laws of the Netherlands.

10. Documentation: records of processing

1. Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), to enable the other party to comply with any obligations relating to maintaining records of processing.

11. Other provisions

1. If any (or part of any) provision of this DPA is found to be invalid, unenforceable, or illegal by a competent court, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted or modified, that provision shall apply with whatever modification is necessary to give effect to the intention of the Parties.
2. Each Party is prohibited from transferring this DPA or rights and/or obligations under this DPA entirely or partly to another party, without approval from the other Party.
3. Any notice to be given by a Party pursuant to this Agreement shall be in writing (including by e-mail) and shall be sent to the address of the applicable Party as set out in the preamble to this DPA. Each Party may change its address by giving notice to the other Parties.