Data Protection Agreement

Last revised on August 22 , 2024

[Need a signed copy (including the full text of the SCCs, UK Addendum, and Sub-Processors)? Send a message to your CSM or legal@consio.ai]‍

This Data Protection Agreement (“DPA”) forms part of the Consio’ Master Subscription Agreement (the “Agreement”) between the applicable Consio customer which is a party to such Agreement (“Customer”), and the applicable Consio Entity which is also a party to such Agreement (“Consio”). Customer and Consio are each referred to as a “Party” and collectively as the “Parties”.

1. Definitions

‍The terms used in this DPA shall have the meanings set forth in this DPA or as defined by Applicable Privacy Law, whichever is broader. Capitalized terms not otherwise defined herein or defined by Applicable Privacy Law shall have the meaning given to them in the Agreement. The following terms have the meanings set forth below:

“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with either Consio or Customer, respectively.

“Applicable Privacy Law” shall mean applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which Consio is subject, including, but not limited to, (a) the California Consumer Privacy Act of 2018 (“CCPA”), (b) the EU General Data Protection Regulation 2016/679 (“GDPR”) including the applicable implementing legislation of each Member State (“EU GDPR”), (c) the UK Data Protection Act 2018 and the UK General Data Protection Regulation as it forms part of UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018, as amended (including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR” and together with the EU GDPR, the “GDPR”), (d) the Swiss Federal Act on Data Protection of 19 June 1992, (e) any other applicable law with respect to any Personal Data in respect of which the Consio is subject to, and (f) any other data protection law and any guidance or statutory codes of practice issued by any relevant Privacy Authority, in each case, as amended from time to time and any successor legislation to the same.

“Data Subject” shall mean an identified or identifiable natural person.‍

“Personal Data” shall mean (i) personal data, personal information, personally identifiable information, or similar term as defined by Applicable Privacy Law or (ii) if not defined by Applicable Privacy Law, any information that relates to a Data Subject; in each case, to the extent Processed by Consio, on behalf of Customer, in connection with Consio’s performance of the Services.

“Consio Entity” shall mean Consio Ai Inc., and/or any Consio Affiliate.

“Privacy Authority” shall mean any competent supervisory authority, attorney general, or other regulator with responsibility for privacy or data protection matters in the jurisdiction of Consio.

“Process”, “Processing” or “Processed” shall mean any operation or set of operations, as defined in the Applicable Privacy Law, performed upon Personal Data whether or not by automatic means, including collecting, recording, organizing, storing, adapting or altering, retrieving, consulting, using, disclosing, making available, aligning, combining, blocking, erasing and destroying Personal Data.

“Security Breach” shall mean an actual or reasonably suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data when transmitted, stored or otherwise processed by Consio.

“Services” shall mean the services as described in the Agreement or any related order form or statement of work.

“Standard Contractual Clauses” means (a) with respect to transfers of Personal Data which are subject to the EU GDPR from the European Economic Area (EEA) to countries outside the EEA that do not provide adequate protection of Personal Data, the Controller-to-Processor standard contractual clauses, as set out in the European Commission’s Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to GDPR, as may be amended or replaced by the European Commission from time to time as set out in Exhibit D of this DPA (“EU SCCs”), (b) with respect to restricted transfers (as such term is defined under UK GDPR) subject to the UK GDPR, the UK international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers issued by the Information Commissioner on March 21, 2022, as set out in Exhibit E of this DPA (“UK SCCs”), and (c) with respect to transfers of Personal Data which are subject to the Swiss Federal Act on Data Protection of 19 June 1992, the EU SCCs as approved by the Swiss Data Protection and Information Commissioner, including the necessary adaptations to ensure compliance with Swiss data protection law, as set out in Exhibit F of this DPA (“Swiss SCCs”).

“Subprocessor” shall mean any subcontractor (including any third party and/or Consio Affiliate) engaged by Consio to Process Personal Data on behalf of Customer.

“Supervisory Authority” shall mean: (a) in the context of the UK GDPR the UK Information Commissioner’s Office; (b) in the context of the EU GDPR, shall have the meaning given to that term in Article 4(21) of the EU GDPR; and (c) in the context of the Swiss Federal Act on Data Protection of 19 June 1992, the Swiss Data Protection and Information Commissioner.‍

2. Processing Requirements‍

2.1 Consio shall comply with Applicable Privacy Law in the Processing of Personal Data and only Process Personal Data for the purposes of providing the Services and in accordance with Customer’s instructions, and as may subsequently be agreed between the Parties in writing. Consio shall promptly inform Customer if (a) in Consio’s opinion, an instruction from Customer violates Applicable Privacy Law; or (b) Consio is required by applicable law to otherwise Process Personal Data, unless Consio is prohibited by that law from notifying Customer under applicable law.

2.2. Consio shall implement and maintain reasonable and appropriate technical measures that will ensure that Customer’s reasonable and lawful instructions can be complied with, including the following:

1. updating, amending, correcting, or providing access to the Personal Data of any Data Subject upon written request of Customer from time to time;

2. canceling, deleting, or blocking access to any Personal Data upon receipt of written instructions from Customer;

3. otherwise facilitating Customer’s responses to Data Subject requests as required under Applicable Privacy Law; and

4. Consio shall promptly redirect any request from a Data Subject to exercise any of its Data Subject rights to Customer, and shall not respond directly to the Data Subject unless instructed so by Customer in writing.

2.3 Consio acknowledges that (a) Customer discloses Personal Data to Consio solely for the business purpose of Customer, and (b) Consio has not and will not receive any monetary or other valuable consideration in exchange for their receipt of the Personal Data, and that any consideration paid by Customer to Consio under the Agreement relates only to Consio’s provision of the Services. Consio shall not collect, retain, use, disclose, or otherwise Process the Personal Data (i) for any purpose other than for the specific purpose of providing the Services to Customer, or (ii) outside of the direct business relationship between Consio and Customer. In addition, Consio shall not ‘sell,’ as defined under Applicable Privacy Law (including, without limitation, CCPA), or otherwise disclose any Personal Data except to authorized Subprocessors needed to render the Services.

2.4 Consio shall provide to Customer such co-operation, assistance and information as Customer may reasonably request to enable it to comply with its obligations under Applicable Privacy Law and co-operate and comply with the directions or decisions of a relevant Privacy Authority, in each case (a) solely to the extent applicable to Customer’s provision of the Services, and (b) within such reasonable time as would enable Customer to meet any time limit imposed by the Privacy Authority.

3. Security of Personal Data ‍

3.1. Consio shall maintain, during the term of the Agreement, appropriate technical and organizational security measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorized disclosure or access, as set forth in Exhibit B.

3.2. Consio shall ensure the reliability of any employees who Process Personal Data.

3.3 Consio will ensure that any employees entrusted with the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.‍

4. Customer Obligations

4.1 Customer’s Security Responsibilities. Customer agrees that, without limitation of Consio’s obligations under Section 3 (Security of Personal Data) or the Parties’ obligations under the Agreement, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that Consio uses to provide the Services; and (d) backing up Personal Data.

‍4.2. Customer’s Security Assessment. Customer agrees that the Services and Consio’s commitments under this DPA are adequate to meet Customer’s needs, including with respect to any security obligations of Customer under Applicable Data Protection Laws, and provide a level of security appropriate to the risk in respect of the Personal Data.

‍5. Subprocessors

‍5.1 Consio shall not, without Customer’s prior written consent, sub-contract or outsource any Processing of Personal Data to any Subprocessor; provided that Customer shall not unreasonably withhold or delay consent to Consio’s appointment of any Subprocessor. Without limiting the foregoing, Consio authorizes Customer to engage the Subprocessors specified in Exhibit B of this DPA.

‍5.2 Consio shall remain liable for any Processing of Personal Data by each such Subprocessor as if it had undertaken such Processing itself.

‍5.3 Consio will contractually impose data protection obligations on its Subprocessors that are no less onerous than those imposed on Consio under this DPA.

‍‍6. Breach Notification.

6.1 Notification to Customer. Unless otherwise prohibited by applicable law, Consio shall notify Customer without undue delay, and in any event within 72 hours after Consio becomes aware of a Security Breach.  Such notification shall include, to the extent such information is available (a) a detailed description of the Security Breach, (b) the type of data that was the subject of the Security Breach and (c) the identity of each affected person (or, where not possible, the approximate number of Data Subjects and of Personal Data records concerned). In addition, Consio shall communicate to Customer (i) the name and contact details of Consio’s data protection officer or other point of contact where more information can be obtained, (ii) a description of the likely consequences of the Security Breach, (iii) a description of the measures taken or proposed to be taken by Consio to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.

‍6.2. Investigation. Consio shall take prompt action to investigate the Security Breach and shall use industry standard, commercially reasonable efforts to mitigate the effects of any such Security Breach in accordance with its obligations hereunder.

‍‍7. Privacy Impact Assessment

‍Consio shall, promptly upon receipt of written request by Customer and where required by Applicable Privacy Law (a) make available to Customer such information as is reasonably necessary to demonstrate Customer’s compliance with Applicable Privacy Law to the extent applicable to the Services, and (b) reasonably assist Customer in carrying out any privacy impact assessment and any required prior consultations with Privacy Authorities, taking into account the nature of the Processing and the information available to Consio. Consio shall reasonably cooperate with Customer to implement such mitigation actions as are reasonably required to address privacy risks identified in any such privacy impact assessment. Unless such request follows a Security Breach or is otherwise required by Applicable Privacy Law, Customer shall not make any such request more than once in any 12-month period.

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8. Audit Rights

‍Customer may audit Consio’s compliance with its obligations under this DPA up to once per year and on such other occasions as may be required by Applicable Data Privacy Laws, including where mandated by Customer’s Supervisory Authority.  Consio will contribute to such audits by providing Customer or Customer’s Supervisory Authority with the information and assistance that Consio considers appropriate in the circumstances and reasonably necessary to conduct the audit. To request an audit, Customer must submit a proposed audit plan to Consio at least two weeks in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Consio will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Consio security, privacy, employment or other relevant policies). Consio will work cooperatively with Customer to agree on a final audit plan.  Nothing in this Section 8 shall require Consio to breach any duties of confidentiality.  If the controls or measures to be assessed in the requested audit are addressed in an SOC 2 Type 2, or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Consio has confirmed there have been no known material changes in the controls audited since the date of such report, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures. The audit must be conducted during regular business hours, subject to the agreed final audit plan and Consio’s safety, security or other relevant policies, and may not unreasonably interfere with Consio business activities. Any audits are at Customer’s sole expense. Customer shall reimburse Consio for any time expended by Consio and any third parties in connection with any audits or inspections under this Section 8 at Consio’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.

‍9. Deletion of Personal Data

‍‍Consio shall, promptly and in any event within 90 days of expiration or termination of the Agreement, or following receipt of written notice from, (a) return a complete copy of all Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to Consio; and (b) delete and procure the deletion of all other copies of Personal Data Processed by Consio.This obligation is in addition to Consio’ obligations concerning the destruction or return of Customer’s Confidential Information as provided in the Agreement.

‍10. Third Party Disclosure Requests.

‍10.1. Unless prohibited by applicable law, Consio shall promptly notify Customer of any inquiry, communication, request or complaint, to the extent relating to Consio’s Processing of Personal Data on behalf of Customer, from:

‍(a) any governmental, regulatory or supervisory authority, including Privacy Authorities or the U.S. Federal Trade Commission; and/or

‍(b) any Data Subject,

‍and shall, taking into account the nature of the Processing, provide reasonable assistance to enable Customer to respond to such inquiries, communications, requests or complaints and to meet applicable statutory or regulatory deadlines. Consio shall not disclose Personal Data to any of the persons or entities in (a) or (b) above unless it is legally required to do so and has otherwise complied with the obligations in this Section 9.1 and Section 9.2.

‍10.2. In the event that Consio is required by law, court order, warrant, or other legal judicial process (“Legal Request”) to disclose any Personal Data to any person or entity other than Customer, including any national security authority or other government body, Consio shall attempt to redirect the government request to Customer. If Consio is unable to redirect the request, Consio shall, unless prohibited by applicable law, notify Customer promptly and shall provide all reasonable assistance to Customer to enable Customer to respond or object to, or challenge, any such Legal Requests and to meet applicable statutory or regulatory deadlines. If Consio is prohibited by applicable law from providing notice to Customer of a Legal Request, Consio shall use commercially reasonable efforts to object to, or challenge, any such Legal Request to avoid or minimize the disclosure of Personal Data. Consio shall not disclose Personal Data pursuant to a Legal Request unless it is required to do so by applicable law and has otherwise complied with the obligations in this Section 10.2.

‍10.3 Transfers of Personal Data Outside of the European Economic Area, the United Kingdom, and Switzerland.  Where Personal Data originating in the European Economic Area is Processed by Consio outside the European Economic Area, in a territory that has not been designated by the European Commission as ensuring an adequate level of protection pursuant to Applicable Privacy Law, Customer and Consio agree that the transfer shall be undertaken pursuant to Standard Contractual Clauses which form integral part of this DPA. For transfers from Switzerland only, the term “personal data” as used in the Standard Contractual Clauses, shall include, as applicable, personality profiles and the personal data of legal persons. Consio shall provide a copy of the signed version of the Standard Contractual Clauses to Customer upon request.

‍11. Claims.  Any claims brought under, or in connection with, this DPA, shall be subject to the exclusions and limitations of liability set forth in the Agreement.