Data Processing Agreement

Effective Date: 21^st May 2023
Last Updated on: 21^st May 2023

This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between You and Us. You are required to read this DPA carefully as this DPA forms an integral part of the terms of use available at https://hr.ablyworks.com/pages/terms_and_conditions (the “Terms'') and is applicable where We are the Processors of Your Personal Data.

1.Definitions

Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms. 

In this DPA, the following terms shall have the following meanings:

“CCPA” shall mean the California Consumer Privacy Act of 2018.

“Data Protection Laws” shall mean the data protection laws of the country in which You are established and any data protection laws applicable to You in connection with the Terms, including but not limited to (a) laws and regulations applicable to the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom by virtue of section 3 of the United Kingdom European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act, 2019 (c) the Swiss Federal Data Protection Act and its implementing regulations (“Swiss DPA”) in each case, as may be amended, superseded or replaced.

“GDPR” shall mean 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).

“Personal Data” shall mean any information relating to an identified or identifiable natural person Processed by AblyWorks as part of providing the services to You as described in an Appendix.

“Restricted Transfer” means: (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner. 

“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914  (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, Version B1.0, in force from 21 March 2022 set forth as Appendix IV (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).
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“Sensitive Personal Information” means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation.  It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws

“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process” shall have the meaning given to them in the GDPR.

2.Scope and Responsibilities

2.1.This DPA applies to Processing of Personal Data forming a part of the Customer Data.

2.2.AblyWorks shall Process Personal Data only on Your behalf and at all times only in accordance with this DPA, especially the respective Appendix. For the avoidance of doubt, AblyWorks shall be the Processor and You shall be the Controller of the Personal Data. 

2.3.Within the scope of the Terms, each party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.

3.Term and Termination

3.1.This DPA becomes effective upon You subscribing to the Services by agreeing to the Terms. It shall continue to be in full force and effect as long as AblyWorks is Processing Personal Data pursuant to the Terms and shall terminate automatically thereafter.

3.2.Where amendments are required to ensure compliance of this DPA or an Appendix with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon Your request. Where the Parties are unable to agree upon such amendments, either party may terminate the Terms in accordance with the termination procedure contained therein.

4.Processing Instructions

4.1.AblyWorks will Process Personal Data in accordance with Your instructions. This DPA contains Your initial instructions to AblyWorks. The Parties agree that You may communicate any change in your initial instructions to AblyWorks by way of amendment to this DPA, which shall be signed by the Parties.

4.2.For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g. because a new Processing purpose is introduced) will require a prior agreement between the Parties.

4.3.AblyWorks shall without undue delay inform You in writing if, in AblyWorks's opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.

5.Processor Personnel

5.1.AblyWorks will restrict its personnel from Processing Personal Data without authorization. AblyWorks will impose appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.

6.Disclosure to Third Parties; Data Subjects Rights

6.1.AblyWorks will not disclose Personal Data to any government agency, court, or law enforcement except with Your written consent or as necessary to comply with applicable mandatory laws. If AblyWorks is obliged to disclose Personal Data to a law enforcement agency, then AblyWorks agrees to give You reasonable notice of the access request prior to granting such access, to allow You to seek a protective order or other appropriate remedy. If such notice is legally prohibited, AblyWorks will take reasonable measures to protect the Personal Data from undue disclosure as if it were AblyWorks’s own confidential information being requested and shall inform You promptly as soon as possible if and when such legal prohibition ceases to apply.

6.2.In case You receive any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), AblyWorks shall reasonably provide You with full cooperation, information and assistance ("Assistance") in relation to any such Request where instructed by You.
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6.3.Where AblyWorks receives a Request, AblyWorks shall (i) not directly respond to such Request, (ii) forward the Request to You within five (5) business days of identifying the Request as being related to You and (iii) provide Assistance according to further instructions from You.

7.Technical and Organizational Measures

7.1.AblyWorks shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and to protect Personal Data against a Personal Data Breach ("TOMs") as specified in Appendix II hereto.

8.Assistance with Data Protection Impact Assessment

8.1.Where a Data Protection Impact Assessment ("DPIA") is required under applicable Data Protection Laws for the Processing of Personal Data, AblyWorks shall provide upon request to You any information and assistance reasonably required for the DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not pertaining to AblyWorks's obligations under this DPA.
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8.2.You shall pay AblyWorks reasonable charges for providing the assistance in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the Services.

9.Information Rights and Audit

9.1.AblyWorks shall, in accordance with Data Protection Laws, make available to You on request in a timely manner such information as is necessary to demonstrate compliance by AblyWorks with its obligations under the Data Protection Laws. 
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9.2.AblyWorks shall, upon reasonable notice, allow for and contribute to audits of Rocektlane's Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures and records), during regular business hours and with minimal interruption to AblyWorks's business operations. Such audits shall be conducted by You, Your affiliates or an independent third party on Your behalf (which will not be a competitor of AblyWorks) that is subject to reasonable confidentiality obligations.
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9.3.You shall pay AblyWorks reasonable costs of allowing or contributing to audits or inspections in accordance with clause 9.2 where You wish to conduct more than one audit or inspection every twelve (12) months. AblyWorks will immediately refer to You any requests received from national data protection authorities that relate to AblyWorks’s Processing of Personal Data.
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9.4.AblyWorks undertakes to reasonably cooperate with You in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.

10.Personal Data Breach Notification

In respect of any Personal Data Breach (actual or reasonably suspected), AblyWorks shall:

10.1.notify You of a Personal Data Breach involving AblyWorks or a subcontractor without undue delay and it shall be Your responsibility to inform the supervisory authority of such breach within seventy-two (72) hours of notice by AblyWorks; 
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10.2.provide reasonable information, cooperation and assistance to You in relation to any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.

11.Subcontracting

11.1.You consent to AblyWorks engaging third party sub-processors as indicated in Appendix 1 to Process Personal Data to fulfil its obligations under the Terms provided that, AblyWorks will provide at least fifteen (15) days’ notice to Your account administrator prior to the appointment or replacement of any sub-processor. You may object to Rocektlane’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, AblyWorks will either not appoint or replace the sub-processor or, if this is not possible, You or AblyWorks may suspend or terminate the Service(s) (without prejudice to any fees incurred by You prior to such suspension or termination). 
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11.2.Where AblyWorks, with Your consent, subcontracts its obligations and rights under this DPA it shall do so only by way of a binding written contract with the sub-processor which imposes essentially the same obligations according to Art. 28 GDPR especially with regard to instructions and TOMs on the sub-processor as are imposed on AblyWorks under this DPA.
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11.3.Where the sub-processor fails to fulfil its data protection obligations under the subcontracting agreement, AblyWorks shall remain fully liable to You for the fulfilment of its obligations under this DPA and for the performance of the sub-processor 's obligations.

12.International Data Transfers

12.1.The Parties agree that when the transfer of Personal Data from You to AblyWorks is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this DPA as follows:

12.1.In relation to transfers of Personal Data originating from the EEA and subject to the GDPR, the EU SCCs shall apply, completed as follows:
12.1.a.i Module 2 (Controller to Processor) shall apply where You are a Controller and Rockelane is a Processor;
12.1.a.ii in Clause 7, the optional docking clause will apply;
12.1.a.iii in Clause 11, the optional language will not apply;
12.1.a.iv in Clause 17, Option 1 will apply, and the EU SCCs will be governed by Irish law;
12.1.a.v in Clause 18(b), disputes shall be resolved before the courts of Ireland;
12.1.a.vi Annex I of the EU SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
12.1.a.vii Annex II of the EU SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
12.1.a.viii Annex III of the EU SCCs shall be deemed completed with the information set out in Appendix III to this DPA

12.1.b In relation to transfers of Personal Data originating Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under sub-paragraph (a) above will apply with the following modifications and constitute the Swiss SCCs:
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12.1.b.i references to Regulation (EU) 2016/679; shall be interpreted as references to the Swiss DPA;
12.1.b.ii references to specific Articles of Regulation (EU) 2016/679; shall be replaced with the equivalent section of the Swiss DPA;
12.1.b.iii references to “EU”, “Union”, “Member State”, and “Member State law” shall be replaced with references to “Switzerland” or “Swiss law”;
12.1.b.iv the term “member state” shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);
12.1.b.v Clause 13(a) and Part C of Annex I are not used and the “competent supervisory” is the Swiss Federal Data Protection Information Commissioner;
12.1.b.vi references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
12.1.b.vii in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and
12.1.b.viii Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
12.1.b.ix Annex I of the Swiss SCCs shall be deemed completed with the information set out in Appendix I to this DPA;
12.1.b.x Annex II of the Swiss SCCs shall be deemed completed with the information set out in Appendix II to this DPA; and
12.1.b.xi Annex III of the Swiss SCCs shall be deemed completed with the information set out in Appendix III to this DPA


12.1.c In relation to transfers of Personal Data originating from the UK and subject to the UK GDPR, the UK SCCs shall apply.

12.1 For the purposes of descriptions in the SCCs, You agree that You are the “data exporter” and AblyWorks is the “data importer”.
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12.2 The Parties agree that if the Standard Contractual Clauses are replaced, amended or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Laws requires the adoption of an alternative transfer solution, the data exporter and data importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.

13.Deletion or Return of Personal Data

Upon termination of Your Account, AblyWorks may delete all Customer Data, including Personal Data in accordance with the procedure set forth in the Terms. This requirement shall not apply to the extent that AblyWorks is permitted by applicable law to retain some or all of the Personal Data, in which event AblyWorks shall isolate and protect the Personal Data from any further processing except to the extent as required by such law. 

14.CCPA Undertaking

You acknowledge and agrees that it is the Business and AblyWorks is the Service Provider with respect to any Personal Information of Consumers (as those terms are understood under the CCPA) forming part of Your Data. AblyWorks will not sell, retain, use, or disclose Personal Information of Consumers that AblyWorks processes on Your behalf when providing the Services under the Terms for any purpose other than for the specific purpose of providing the Services in accordance with the Terms and as part of the direct relationship between AblyWorks and You. AblyWorks certifies that it understands the restrictions in this clause 14 and will comply with such restrictions.

15.Miscellaneous

15.1.In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with AblyWorks. In case of any conflict between the DPA and the SCCs, the SCCs shall take precedence over the provisions of the rest of the DPA.
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15.2.No party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement. 
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15.3.Where this DPA requires a “written notice” such notice can also be communicated per email to the other party. Notices shall be sent to the contact persons set out in Appendix 1.
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15.4.Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.

15.5.Should individual provisions of this DPA become void, invalid or non-viable, this shall not affect the validity of the remaining conditions of this DPA.

The following Appendices forms an integral part of this DPA:

APPENDIX 1
A. LIST OF PARTIES UNDER THE SCCS

Data exporter(s): The Data Exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms. Signature & Date:  By entering into the Agreement, Data Exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.

Role: Controller 
‍Data importer(s): 
Name : AblyWorks.com
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Address: C-16, Sector-6, Noida 201 301
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Contact person’s name,
position and contact details: Name: Vidur Anand Email: Hello@AblyWorks.com
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Activities relevant to the data transferred under these Clauses: As specified in Part B.
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Signature and data: By entering into the Agreement, Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
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Role (Controller / Processor): Processor  

B. DESCRIPTION OF TRANSFER
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Categories of data subjects whose personal data is transferred
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Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners or other individuals having Personal Data stored, transmitted to, made available to, accessed or otherwise processed by the data importer.

Categories of personal data transferred
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The transferred Personal Data concerns the following categories of data:
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Customer determines the categories of data and/or data fields which could be transferred per AblyWorks’s Services as stated in the relevant Agreement. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail  address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data transferred by authorised personnel.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
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No Sensitive Personal Information transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Data to the data importer for processing.
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The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)

Data is transferred on a continuous basis

‍Nature of the processing

Collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means).

Purpose(s) of the data transfer and further processing

‍Personal Data is transferred in the course of access and use of the data exporter’s Service so that the data importer may provide, support, maintain and improve the Service.
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The data importer may further transfer personal data to third-party service providers that host and maintain the data importer’s applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or process personal data for the purpose of providing these services to the data importer.
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The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

Upon termination or expiry of the Terms, AblyWorks shall delete all Customer Data including Personal Data in accordance with the procedure contained in the Terms. This requirement shall not apply to the extent that AblyWorks is required by applicable law to retain some or all of the Personal Data, in which event AblyWorks shall isolate and protect the Personal Data from any further processing except to the extent required by such law.  

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

Group sub-processors

The following are group members of AblyWorks.Com. These entities function as sub-processors as well and provide support and maintenance.

Company: AYUSV Technologies Private Limited

Location: India

COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:

Module 2: Transfer Controller to Processor

Where Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the SCCs.
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Appendix II – Technical and Organisational Security Measures
AblyWorks has implemented and shall maintain a security program in accordance with industry standards. AblyWorks has implemented and will maintain appropriate TOMS to protect Service Data from a Personal Data Breach. Reach out to us at care@AblyWorks.com for our security policy document.
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Appendix III – List of Sub-processors      
As set out in Part B to Appendix I. 

‍Appendix IV: UK SCCs‍

This UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 12.1 (a) of this DPA.

Part 1: Tables

For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Addendum by this reference) and completed as follows:

(a) In Table 1 of the UK SCCs, the Parties’ details and key contact information shall be as set forth in Schedule A.A.

(b) In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules and selected clauses which this UK SCC is appended to shall be as set forth in Clauses 11.1 and 12.1(a)(i), (ii), (iii), (iv) of this DPA.

(c) In Table 3 of the UK SCCs: 
i Annex 1A: List of Parties: Parties are as set forth in Appendix I.A.
ii Annex 1B: Description of Transfer: Description of Transfer is as set forth in Appendix I.B.
iii Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: TOMs are as set forth in Appendix II.
iv Annex III: List of Sub processors: Sub processors are as set forth in Appendix I.B.

(d) In Table 4 of the UK SCCs, both the data importer and the data exporter may end the UK SCCs in accordance with the terms of the UK SCCs.

Part 2: Mandatory Clauses 

Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section ‎‎18 of those Mandatory Clauses.