Data Processing Agreement

This Data Processing Agreement (“DPA”) is incorporated by reference into Torq’s online license agreement available at https://torq.io/license-agreement/ or other agreement governing the use of Torq’s services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, ”You”, ”Your”, “Customer”, or “Data Controller”) and Torq (as defined below) (“Torq”, ”Us”, ”We”, ”Our”, “Service Provider” or “Data Processor”), to reflect the parties’ agreement with regard to the Processing of Personal Data (as such terms are defined below). Both parties shall be referred to as the “Parties” and each, a “Party”.

WHEREAS, Torq shall provide the services set forth in the Agreement (collectively, the “Services”) for Customer, as described in the Agreement; and

WHEREAS, In the course of providing the Services pursuant to the Agreement, we may process Personal Data on your behalf, in the capacity of a “Data Processor”; and the Parties wish to set forth the arrangements concerning the processing of Personal Data (defined below) within the context of the Services and agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

NOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the parties, intending to be legally bound, agree as follows:

1. INTERPRETATION AND DEFINITIONS
   1.1 The headings contained in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA. References to clauses or sections are
   references to the clauses or sections of this DPA unless otherwise stated. Words used in the singular include the plural and vice versa, as the context may require. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.
   Definitions:
   (a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition,
   means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   (b) “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws And Regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and Torq, but has not signed its own agreement with Torq and is not a “Customer” as defined under the Agreement.
   (c) “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this DPA only, and except
   where indicated otherwise, the term “Data Controller” shall include yourself, the Organization and/or the Organization’s Authorized Affiliates.
   (d) “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. Seq, and its implementing regulations, as may be amended from time to time.
   (e) “Data Protection Laws and Regulations” means all laws and regulations of the European Union, the European Economic Area and their Member States, and the United
   Kingdom, applicable to the Processing of Personal Data under the Agreement.
   (f) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
   (g) “Member State” means a country that belongs to the European Union and/or the European Economic Area. “Union” means the European Union.
   (h) “GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
   (i) “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined under Data Protection Laws and Regulations and/or under the CCPA, as applicable. For the avoidance of doubt, Customer's business contact information is not by itself deemed to be Personal Data subject to this DPA.
   (j) “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
   (k) “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.
   (l) “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and Customer may request such documentation by sending an email to s[email protected], or as otherwise made reasonably available by Torq.
   (m) “Torq” means the relevant Torq entity of the following Torq legal entities: Torq Technologies Ltd and Torq Technologies Inc
   (n) “Torq Group” means Torq and its Affiliates engaged in the Processing of Personal Data.
   (o) “Standard Contractual Clauses” or “SCCs” means (i) the standard contractual clauses for the transfer of Personal Data to Data processors established in third countries which do not ensure an adequate level of protection as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council from June 4, 2021, as available here, as updated, amended, replaced or superseded from time to time by the European Commission; or (ii) where required from time to time by a supervisory authority for use with respect to any specific restricted transfer, any other set of contractual clauses or other similar mechanism approved by such Supervisory Authority or by Applicable Laws for use in respect of such Restricted Transfer, as updated, amended, replaced or superseded from time to time by such Regulatory Authority or Data Protection Laws and Regulations;
   (p) “Sub-processor” means any Processor engaged by Torq and/or Torq Affiliate.
   (q) “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
   (r) “UK GDPR” means the Data Protection Act 2018, as updated, amended, replaced or superseded from time to time by the ICO.
   (s) “UK Standard Contractual Clauses” or “UK SCCs” means the standard contractual clauses for the transfer of Personal Data to Data processors established in third countries which do not ensure an adequate level of protection as set out by the ICO, as available here, as updated, amended, replaced or superseded from time to time by the ICO
2.  PROCESSING OF PERSONAL DATA
   2.1 Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, (i) Customer is the Data Controller, (ii) Torq is the Data Processor and that (iii) Torq or members of the Torq Group may engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
   2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations and comply at all times with the obligations applicable to data controllers (including, without limitation, Article 24 of the GDPR). For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the means by which Customer acquired Personal Data. Without limitation, Customer shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall have any and all required legal bases in order to collect, Process and transfer to Torq the Personal Data and to authorize the Processing by Torq of the Personal Data which is authorized in this DPA. Customer shall defend, hold harmless and indemnify Torq, its Affiliates and subsidiaries (including without limitation their directors, officers, agents, subcontractors and/or employees) from and against any liability of any kind related to any breach, violation or infringement by Customer and/or its authorized users of any Data Protection Laws and Regulations and/or this DPA and/or this Section.
   2.3 Torq’s Processing of Personal Data.
   2.3.1 Subject to the Agreement, Torq shall Process Personal Data only in accordance with Customer’s documented instructions as necessary for the performance of the Services and for the performance of the Agreement and this DPA, unless required to otherwise by Union or Member State law or any other applicable law to which Torq and its Affiliates are subject, in which case, Torq shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
   2.3.2 To the extent that Torq or its Affiliates cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind) from Customer and/or its authorized users relating to Processing of Personal Data or where Torq considers such a request to be unlawful, Torq (i) shall inform Customer, providing relevant details of the problem, (ii) Torq may, without any kind of liability towards Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to Torq all the amounts owed to Torq or due before the date of termination. Customer will have no further claims against Torq (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).
   2.3.3 Torq will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of Torq, to the extent that such is a result of Customer’s instructions.
   2.3.4 If Customer provides Torq or any of the entities of the Torq Group with instructions, requests, suggestions, comments or feedback (whether orally or in writing) with respect to the Services, Customer acknowledges that any and all rights, including intellectual property rights, therein shall belong exclusively to Torq and that such shall be considered Torq’s intellectual property without restrictions or limitations of any kind, and Customer hereby irrevocably and fully transfers and assigns to Torq any and all rights including, without limitation, intellectual property rights therein and waives any and all moral rights that Customer may have in respect thereto.
3. RIGHTS OF DATA SUBJECTS. If Torq receives a request from a Data Subject to exercise its rights as laid down in Chapter III the GDPR (“Data Subject Request”), Torq shall, to the extent legally permitted, promptly notify and forward such Data Subject Request to Customer. Taking into account the nature of the Processing, Torq shall use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Torq’s provision of such assistance.
4. TORQ PERSONNEL
   4.1 Confidentiality. Torq shall grant access to the Personal Data to persons under its authority (including, without limitation, its personnel) only on a need to know basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality.
   4.2 Torq may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Laws and Regulations (in such a case, Torq shall inform the Customer of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), investors or potential acquirers.
5. AUTHORIZATION REGARDING SUB-PROCESSORS
   5.1.1 Torq’s current list of Sub-processors is included in Schedule 2 (“Sub-processor List”) and is hereby approved by Data Controller. The Sub-processor List as of the date of execution of this DPA, or as of the date of publication (as applicable), is hereby, or shall be (as applicable), authorized by Customer. In any event, the Sub-processor List shall be deemed authorized by Customer unless it provides a written reasonable objection for reasons related to the GDPR within ten (10) business days following the publication of the Sub-processor List. Customer may reasonably object for reasons related to the GDPR to Torq’s use of an existing Sub-processor by providing a written objection to Torq. In the event Customer reasonably objects to an existing Sub-processor, as permitted in the preceding sentences, and the parties do not find a solution in good faith to the issue in question, then Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Torq without the use of the objected-to Sub-processor by providing written notice to Torq provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Torq. Customer will have no further claims against Torq due to (i) past use of approved Sub-processors prior to the date of objection or (ii) the termination of the Agreement (including, without limitation, requesting refunds) and the DPA in the situation described in this paragraph.
   5.1.2 Torq shall provide notification of any new Sub-processor(s) before authorizing such new Sub-processor(s) to Process Personal Data in connection with the provision of the Services.
   5.2 Objection Right for New Sub-processors. Customer may reasonably object to Torq’s use of a new Sub-processor for reasons related to the GDPR by notifying Torq promptly in writing within three (3) business days after receipt of Torq’s notice in accordance with the mechanism set out in Section
   5.1.2 and such written objection shall include the reasons related to the GDPR for objecting to Torq’s use of such new Sub-processor. Failure to object to such new Sub-processor in writing within three (3) business days following Torq’s notice shall be deemed as acceptance of the new Sub-Processor. In the event Customer reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Torq will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Torq is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Torq without the use of the objected-to new Sub-processor by providing written notice to Torq provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Torq. Until a decision is made regarding the new Sub- processor, Torq may temporarily suspend the Processing of the affected Personal Data. Customer will have no further claims against Torq due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
   5.3 Agreements with Sub-processors. In accordance with Articles 28.7 and 28.8 of the GDPR, if and when the European Commission lays down the standard contractual clauses referred to in such Article, the Parties may revise this DPA in good faith to adjust it to such standard contractual clauses.
6. SECURITY
   6.1 Controls for the Protection of Personal Data. Taking into account the state of the art, Torq shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in the Security Documentation which are hereby approved by Customer. Upon the Customer’s request, Torq will use commercially reasonable efforts to assist Customer, at Customer’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing, the state of the art, the costs of implementation, the scope, the context, the purposes of the Processing and the information available to Torq.
   6.2 Third-Party Certifications and Audits. At Customer’s cost and expense, Torq shall allow for and contribute to audits, including inspections of Torq, conducted by the controller or another auditor mandated by the controller (who is not a direct or indirect competitor of Torq) provided that the parties shall agree on the scope, methodology, timing and conditions of such audits and inspections. Notwithstanding anything to the contrary, such audits and/or inspections shall not contain any information, including without limitation, personal data that does not belong to Customer.
7. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION. To the extent required under applicable Data Protection Laws and Regulations, Torq shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data, transmitted, stored or otherwise Processed by Torq or its Sub-processors of which Torq becomes aware (a “Personal Data Incident”). Torq shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Torq deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Torq’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users. In any event, Customer will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).
8. RETURN AND DELETION OF PERSONAL DATA. Subject to the Agreement, Torq shall, at the choice of Customer, delete or return the Personal Data to Customer after the end of the provision of the Services relating to processing, and shall delete existing copies unless applicable law requires storage of the Personal Data. In any event, to the extent required or allowed by applicable law, Torq may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defence of legal claims and/or to comply with applicable laws and regulations. If the Customer requests the Personal Data to be returned, the Personal Data shall be returned in the format generally available for Torq’s Customers.
9. AUTHORIZED AFFILIATES
   9.1 Contractual Relationship. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Torq. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.
   9.2 Communication. The Customer shall remain responsible for coordinating all communication with Torq under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
10. TRANSFERS OF DATA
    10.1 Personal Data may be transferred from the EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, “EEA”) and the United Kingdom to countries that offer adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the Union, the Member States the European Commission or the UK supervisory authority (“Adequacy Decisions”), without any further safeguard being necessary.
    10.2 To the extent that there is Processing of Personal Data which includes transfers from the EEA, the UK to countries which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the below terms shall apply:
    10.2.1 With respect to the EU transfers of Personal Data, Customer as a Data Exporter (as defined in the SCCs) and Torq on behalf of itself and each Torq Affiliate (as applicable) as a Data Importer (as defined in the SCCs) hereby enter into the SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the SCC and the terms of this DPA, the terms of the SCC shall take precedence.
    10.2.2 With respect to the UK transfers of Personal Data (from the UK to other countries which have not been subject to a relevant Adequacy Decision), Customer as a Data Exporter (as defined in the UK SCCs) and Torq on behalf of itself and each Torq Affiliate (as applicable) as a Data Importer (as defined in the UK SCCs), hereby enter into the UK SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the UK SCC and the terms of this DPA, the terms of the UK SCC shall take precedence.
11. TERMINATION. This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections 2.2, 2.3.3, 2.3.4 and 12 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.
12. CCPA. To the extent that the Personal Data is subject to the CCPA, Torq shall not sell or share Customer’s Personal Data. Torq acknowledges that when processing Personal Data in the context of the provision of the Services, Customer is not selling or sharing Personal Data to Torq. Torq agrees not to retain, use or disclose Customer Personal Data: (i) for any purpose other than the Business Purpose (as defined below); (ii) for no other commercial or Business Purpose; or (iii) outside the direct business relationship between Torq and Customer. Notwithstanding the foregoing, Torq may use, disclose, or retain Customer Personal Data to: (i) transfer the Personal Data to other Torq’s entities (including, without limitation, affiliates and subsidiaries), service providers, third parties and vendors, in order to provide the Services to Customer; (ii) to comply with, or as allowed by, applicable laws; (iii) to defend legal claims or comply with a law enforcement investigation; (ii) for internal use by Torq to build or improve the quality of its services and/or for any other purpose permitted under the CCPA; (iii) to detect data security incidents, or protect against fraudulent or illegal activity; and (iv) collect and analyse anonymous information. Torq shall use commercially reasonable efforts to comply with its obligations under CCPA. If Torq becomes aware of any material applicable requirement (to Torq as a service provider) under CCPA that Torq cannot comply with, Torq shall use commercially reasonable efforts to notify Customer. Upon written Customer’s notice, Torq shall use commercial reasonable and appropriate steps to stop and remediate Torq’s alleged unauthorized use of Personal Data; provided that Customer must explain and demonstrate in the written notice which processing activity of Personal Data it considers to be unauthorized and the applicable reasons. Torq shall use commercially reasonable efforts to enable Customer to comply with consumer requests made pursuant CCPA. Notwithstanding anything to the contrary, Customer shall be fully and solely responsible for complying with its own requirements under CCPA. “Business purpose” means the Processing activities that Torq will perform to provide Services (as described in the Agreement), this DPA and any other instruction from Customer, as otherwise permitted by applicable law, including, CCPA and the applicable regulations, or as otherwise necessary to provide the Services to Customer
13. RELATIONSHIP WITH AGREEMENT. In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement. Notwithstanding anything to the contrary in the Agreement and/or in any agreement between the parties and to the maximum extent permitted by law: (A) Torq’s (including Torq’s Affiliates’) entire, total and aggregate liability, related to personal data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation under the Agreement or applicable law regarding data protection or privacy, shall be limited to the amounts paid to Torq under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (B) In no event will Torq and/or Torq Affiliates and/or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings; (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (C) The foregoing exclusions and limitations on liability set forth in this Section shall apply: (i) even if Torq, Torq Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).
14. AMENDMENTS. This DPA may be amended at any time by a written instrument duly signed by each of the Parties.
15. LEGAL EFFECT. This DPA shall only become legally binding between Customer and Torq when the formalities steps set out in the Section “INSTRUCTIONS ON HOW TO EXECUTE THIS DPA” below have been fully completed. Torq may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any Torq obligation hereunder may be performed (in whole or in part), and any Torq right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Torq.