Data processing addendum

Last Updated: 22 December 2022

This Data Processing Addendum and its Annexes (the “DPA”) reflect the agreement made by and between Prowly Sp. z o.o., with its principal place of business at 71/1 Madalinskiego street, 02-549, Warsaw, Poland (KRS No. 0000462787, REGON: 146685631, NIP: PL5213649218) (“Prowly”) and Customer (as such terms are defined below), together the “Parties”, with respect to the Processing of Customer Personal Data (defined below) under the applicable terms and conditions or other written or electronic agreement referencing this DPA under which Prowly Processes Customer Personal Data that is subject to Applicable Data Protection Law (the “Agreement”). This DPA will be incorporated into the Agreement in accordance with the terms of the Agreement. This DPA amends the Agreement and is effective upon its incorporation into the Agreement, as specified in the Agreement or order between Prowly and Customer. Upon its incorporation into the Agreement, this DPA will form an integral part of the Agreement without the need for any additional signatures. Notwithstanding anything to the contrary in the Agreement, if there is a conflict between this DPA and the Agreement, this DPA will control. 

1. DEFINITIONS. For the purposes of this DPA, the following terms have the meaning set forth below.  Any capitalized terms not defined herein will have the same meaning as set forth in the Agreement.

(a) “Affiliate” means an entity that owns or controls, is owned or controlled by or is under common ownership or control with the subject entity, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of the subject entity;

(b) “Applicable Data Protection Law” means  all applicable legislation relating to data protection and privacy including, where applicable, the European Data Protection Laws and the CCPA;

(c) “CCPA” means the California Consumer Privacy Act and implementing regulations, as may be amended from time to time;

(d) “Controller” means the entity which determines the purposes and means of the Processing of Personal Data, including a “business” as defined by the CCPA;

(e) “Customer” means the entity that enters into the Agreement with Prowly for use of or access to the Services;

(f) “Customer Personal Data” means the Personal Data described in Annex 1 to this DPA, in respect of which the Customer is the Controller;

(g) “Data Subject”, “Process”, “Processed” or “Processing” shall each have the meaning as set out in the GDPR;

(h) “European Data Protection Laws” means the GDPR, the Data Protection Act 2018 of the United Kingdom (“UK”) and the Swiss Federal Act on Data Protection, each as amended or replaced from time to time;

(i) “GDPR” means the European Union General Data Protection 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 (“EU GDPR”) and the EU GDPR in such form as incorporated into the laws of the UK (“UK GDPR”), each as amended or replaced from time to time;

(j) “Personal Data” means personal data or personal information (as defined under the Applicable Data Protection Law) that is subject to the Applicable Data Protection Law;

(k) “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed; 

(l) “Processor” means the entity which Processes Personal Data on behalf of the Controller, including as applicable any “service provider” as that term is defined by the CCPA;

(m) “Prowly” means Prowly Sp. z o.o.  or any Affiliate of Prowly that enters into an Agreement with Customer;

(n) “Regulator” means the data protection supervisory authority which has jurisdiction over the Processing of Personal Data; 

(o) “Services” means the services provided by Prowly to the Customer under the Agreement;

(p) “Standard Contractual Clauses” means the Standard Contractual Clauses approved with Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council; and

(q) “Sub-Processor” means (i) any Processor engaged by Data Processor or (ii) a Data Processor’s Affiliate; and

(r) “Third Countries” means all countries outside the European Economic Area (“EEA”) or the UK not recognized by the European Commission or, as applicable, the Information Commissioner’s Office as providing an adequate level of protection for Personal Data (within the meaning of the Applicable Data Protection Law).

2. PROCESSING OF CUSTOMER PERSONAL DATA.

(a) The Parties acknowledge and agree that with regard to the Processing of Customer Data, Customer is the Controller (the “Data Controller”) and Prowly is a Processor (the “Data Processor”).  Prowly will Process Customer Data in accordance with Customer’s instructions as outlined in this section and in Section 4 (Data Processor’s Obligations).    

(b) Prowly will Process Customer Personal Data (i) in accordance with the Agreement; (ii) at the Customer’s request when accessing or using the Services; or (iii) to comply with other reasonable instructions of the Data Controller (e.g., via email or support tickets) that are consistent with the terms of this DPA (individually and collectively, the “Purpose”). The types of Personal Data and categories of Data Subjects Processed under this DPA, the subject-matter, nature, purpose and duration of the Processing are further specified in Annex 1 to this DPA. If Customer’s Affiliates have purchased subscriptions to the Services directly with Prowly under the Agreement, then this DPA amends the terms of the Agreement with respect to those subscriptions, and each such Affiliate shall be deemed to be the “Data Controller” for the purposes of this DPA. Customer shall be responsible for coordinating all communications with Prowly and Customer’s Affiliates under this DPA and shall be entitled to make and receive any communication in relation to the DPA, on behalf of itself and its Affiliates.

3. DATA CONTROLLER

a) The Data Controller shall, in its use of the Services, Process Customer Personal Data in accordance with the requirements of Applicable Data Protection Law. Customer’s instructions for the Processing of Customer Personal Data shall comply with Applicable Data Protection Law. Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Personal Data and the means by which Customer obtained Customer Personal Data.

(b) The Data Controller warrants that it has all necessary rights to provide the Customer Personal Data to Data Processor for the Processing to be performed in relation to the Services. To the extent required by Applicable Data Protection Law, the Data Controller is responsible for ensuring that any necessary Data Subject consents to this Processing are obtained, and for ensuring that a record of such consents is maintained. Should such a consent be revoked by the Data Subject, Data Controller is responsible for communicating the fact of such revocation to the Data Processor, and Data Processor remains responsible for implementing any Data Controller instruction with respect to the further Processing of Customer Personal Data that is consistent with the terms of this DPA.

4. DATA PROCESSOR’S OBLIGATIONS.

4.1 To the extent the Data Processor Processes Customer Personal Data on behalf of the Data Controller, it shall:

(a) Process the Customer Personal Data only on documented instructions from the Data Controller in such manner as, and to the extent that, this is appropriate for the provision of the Services, including with regard to transfers of Personal Data to Third Countries, except as required to comply with applicable laws in the EEA, EEA member states,  the UK, or Switzerland to which the Data Processor is subject. In such a case, the Data Processor shall, to the extent legally permitted by those laws, inform the Data Controller of that legal obligation before Processing. The Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes the data protection laws of the EEA, EEA member states or the UK; 

(b) ensure that all persons or parties authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; 

(c) at all times have in place an appropriate written security policy with respect to the Processing of Customer Personal Data, outlining in any case the measures referenced in Section 5 below.

4.2 To the extent Prowly’s Processing of Customer Personal Data is subject to the CCPA, Prowly shall not (1) retain, use, or disclose Customer Personal Data other than as provided for in the Agreement, as needed to perform the Services, to build or improve the quality of the Services, to detect security incidents, to protect against fraudulent or illegal activity, to retain Sub-Processors in compliance with Section 7, or as otherwise permitted by the CCPA; or (2) sell (as defined in the CCPA) Customer Personal Data.

5. SECURITY

(a) Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects, without prejudice to any other security standards agreed upon by the Parties, the Data Controller and Data Processor shall implement appropriate technical and organizational measures for the protection of the security, confidentiality and integrity of the Customer Personal Data appropriate to the risk. These measures include the measures set forth in Annex 2 to this DPA.

(b) The Data Processor will regularly monitor the measures as implemented in accordance with this Section 5. The Data Processor may update the security measures from time to time provided that such updates do not result in the degradation of the overall security of the Services. 

(c) The parties will negotiate in good faith the cost, if any, to implement material changes required by specific updated security requirements set forth in the Applicable Data Protection Law or by Regulators of competent jurisdictions. 

(d) At the Data Controller’s request, subject to the confidentiality obligations set forth in the Agreement, the Data Processor shall provide to the Data Controller information regarding the measures it has taken pursuant to this Section 5 in order to ensure its compliance with its obligations under this DPA.  Such information may include the Data Processor’s third-party audit reports or third-party certifications.  Data Controller may contact the Data Processor in accordance with the “Notices” section of the Agreement to request an on-site audit of the Data Processor’s procedures relevant to the protection of Customer Personal Data, but only to the extent required under the Applicable Data Protection Law. The Data Controller may conduct such audit not more than once annually, unless otherwise required by Applicable Data Protection Law. The Data Controller shall reimburse the Data Processor for any time spent on any such on-site audit at the Data Processor’s then-current rates, which are available upon request. The Data Controller shall provide at least fourteen (14) days’ prior written notice of its intent to undertake such on-site audit, and the Data Controller and Data Processor shall, before the commencement of any such audit, mutually agree upon the scope, timing, the duration and the rate of reimbursement of such audit. (All reimbursement rates shall be reasonable, taking into account the resources expended by the Data Processor.) The Data Controller shall promptly notify the Data Processor of any non-compliance discovered during the course of such audit, and the Data Processor will use commercially reasonable efforts to address any confirmed non-compliance. The results of any audit performed hereunder shall be deemed Data Processor’s Confidential Information. 

6. INTERNATIONAL TRANSFERS 

In connection with the performance of the Agreement, the Data Controller authorizes Prowly to transfer Customer Personal Data to Prowly’s Sub-Processors authorized in accordance with Section 7 of this DPA and who are located in Third Countries, provided that Prowly shall ensure that appropriate safeguards are in place for such transfers in accordance with the European Data Protection Laws, including entering into any applicable Standard Contractual Clauses as approved by the European Commission with each relevant Sub-Processor in a Third Country.

7.  SUB-PROCESSING

(a) The Data Controller hereby grants the Data Processor general written authorization to engage the Data Processor’s Affiliates as Sub-Processors to Process Customer Personal Data and authorizes the Data Processor and its Affiliates to engage third-party Sub-Processors in connection with the delivery of services under the Agreement, subject to the requirements of this Section 7. The Data Processor may engage new Sub-Processors or may change Sub-Processors from time to time. The Data Processor will provide the Data Controller with notice (by updating the Sub-Processor list below and by providing the Data Controller with a mechanism to receive notice of such updates) of any new Sub-Processor in advance of providing such Sub-Processor with access to Customer Personal Data. The Data Controller will have 14 days from the date of receipt of the Data Processor’s notice to approve or reject the new Sub-Processor on reasonable grounds. In the event of no response from the Data Controller, the Sub-Processor will be deemed accepted. If the Data Controller notifies Prowly of an objection to the new or replacement Sub-Processor, the Parties will discuss Data Controller’s concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, either Party may terminate the Processing of the Customer Personal Data with immediate effect, and without liability to either Party, on written notice to the other Party.  

(b) The Data Processor shall enter into written agreements with its Sub-Processors containing data protection obligations that provide at least the same level of protection for Customer Personal Data as under this DPA and shall in particular impose on its Sub-Processors the obligation to implement appropriate technical and organizational measures in such a manner that the sub-Processing will meet the requirements of Applicable Data Protection Law. Where a Sub-Processor fails to fulfill its obligations, the Data Processor shall remain fully liable under the Applicable Data Protection Law to the Data Controller for the performance of that Sub-Processor’s obligations.

7.1. APPROVED LIST OF SUB-PROCESSORS

8. RETURNING OR DESTRUCTION OF PERSONAL DATA

Upon termination of this DPA, upon the Data Controller’s written request, or upon fulfillment of the Purpose whereby no further Processing is required, the Data Processor shall, at the request of the Data Controller, either delete, destroy or return all Customer Personal Data to the Data Controller and destroy or return any existing copies, except where otherwise required by applicable laws of the EEA, EEA member states or the UK. The return of data may incur additional charges. The Data Processor agrees to preserve the confidentiality of any retained Customer Personal Data and will only Process such Customer Personal Data after the date of termination in order to comply with those laws to which it is subject and to fulfill its obligations under this DPA.

9. ASSISTANCE TO DATA CONTROLLER

(a)   The Data Processor shall, to the extent legally permissible, promptly notify the Data Controller of any requests from a Data Subject to exercise the following rights of the Data Subject under the Applicable Data Protection Law:  access, rectification, restriction of Processing, erasure (the “right to be forgotten”), data portability, objection to the Processing, or to not be subject to automated individual decision making (each a “Data Subject Request”). Taking into the account the nature of the Processing, the Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to the Data Subject Request under Applicable Data Protection Law. In addition, to the extent the Data Controller, in its use of the Services, does not have the ability to address a Data Subject Request, the Data Processor shall, upon the Data Controller’s request, use commercially reasonable efforts to assist the Data Controller in responding to such Data Subject Request, to the extent the Data Processor is legally permitted to do so and the response to such Data Subject Request is required under Applicable Data Protection Law. The Data Controller shall be responsible for any costs arising from the Data Processor’s provision of such assistance, including any fees associated with provision of additional functionality.

(b)  Upon the Data Controller’s request, taking into account the nature of the Processing and the information available to the Data Processor, the Data Processor shall provide the Data Controller with reasonable cooperation and assistance to help the Data Controller fulfill its obligations (if applicable) under the Applicable Data Protection Law to (i) carry out a data protection impact assessment related to the Data Controller’s use of the Services, to the extent the Data Controller does not otherwise have access to the relevant information, and (ii) engage in prior consultations with Regulators as required under Article 36 of the GDPR or equivalent provision of the Applicable Data Protection Law.

10. INFORMATION OBLIGATIONS AND INCIDENT MANAGEMENT

(a)   When the Data Processor becomes aware of a Personal Data Breach, it shall notify the Data Controller in accordance with the “Notices” section of the Agreement about the Personal Data Breach without undue delay, shall provide commercially reasonable cooperation to the Data Controller, and shall take commercially reasonable steps to remediate the Personal Data Breach, if applicable, to the extent that remediation is within the Data Processor’s control.  At the Customer’s request and subject to the Customer paying all of Data Processor’s fees at prevailing rates, and all expenses, Data Processor will promptly provide the Customer with all reasonable assistance necessary to enable the Customer to notify relevant Personal Data Breaches to the Regulators and/or affected Data Subjects, if Customer is required to do so under the Applicable Data Protection Law. Customer is solely responsible for complying with Personal Data Breach notification requirements applicable to Customer and fulfilling any third-party notification obligations related to any Personal Data Breach. The obligations of this Section 10(a) do not apply to Personal Data Breaches that are caused by the Data Controller, Users, and/or any products and services other than Data Processor’s.

11. MISCELLANEOUS

(a)  The liability of each Party and its respective Affiliates’, taken together in the aggregate, arising out of or relating to this DPA shall be subject to the section(s) of the Agreement governing limitations of liability, and any reference in such section(s) to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

(b) This DPA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the laws applicable to the Agreement of which this DPA forms a part.

(c)  This DPA shall automatically terminate on the expiration or earlier termination of the Agreement.

Annex 1

Description of Processing

1.      Types of Personal Data; Categories of Data Subjects: The Personal Data that may be Processed under the Agreement, the extent of which is determined and controlled by the Data Controller in its sole discretion and in compliance with Applicable Data Protection Law, is Personal Data submitted by Customers to or through the Services, and which may include, but is not limited to the following categories of Personal Data: first and last name, title, position, contact information. Such data relate to the following categories of Data Subjects: Data Controller’s employees, consultants, contractors, agents, contacts and/or third parties with whom the Data Controller conducts business.

2.     Subject-Matter and Nature of the Processing. The subject-matter of Processing of Customer Personal Data by Data Processor is the provision of the Services to the Customer that involves the Processing of Customer Personal Data. Customer Personal Data will be subject to those Processing activities which Data Processor needs to perform in order to provide the Services pursuant to the Agreement.

3.     Purpose of the Processing. Customer Personal Data will be Processed for the Purposes (as defined by Section 2 of this DPA).

4.     Duration of the Processing. Customer Personal Data will be Processed for the duration of the Agreement.

5.     Rights and Obligations of the Data Controller: The rights and obligations of the Data Controller are set out in the DPA.

Annex 2

Security Measures

This Annex 2 forms part of the DPA and describes the technical and organizational security measures implemented by Prowly. Prowly may update or modify these security measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Prowly services (hereinafter “Services”).

1. Data Center

1.1. Prowly stores all production data in physically secure data centers.

1.2. Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks. Dual circuits, switches, networks or other necessary devices help provide this redundancy. The Services are designed to allow Prowly to perform certain types of preventative and corrective maintenance without interruption. All environmental equipment and facilities have documented preventative maintenance procedures that detail the process for and frequency of performance in accordance with the manufacturer’s or internal specifications. Preventative and corrective maintenance of the data center equipment is scheduled through a standard change process according to documented procedures.

1.3. The data center electrical power systems are designed to be redundant and maintainable without impact to continuous operations, 24 hours a day, and 7 days a week. In most cases, a primary as well as an alternate power source, each with equal capacity, is provided for critical infrastructure components in the data center. Backup power is provided by various mechanisms such as uninterruptible power supplies (UPS) batteries, which supply consistently reliable power protection during utility brownouts, blackouts, over voltage, under voltage, and out-of-tolerance frequency conditions. If utility power is interrupted, backup power is designed to provide transitory power to the data center, at full capacity, for up to 10 minutes until the diesel generator systems take over. The diesel generators are capable of automatically starting up within seconds to provide enough emergency electrical power to run the data center at full capacity typically for a period of days.

1.4. When user data is copied electronically by Prowly outside the data center, appropriate physical security is maintained, and the data is encrypted at all times.

2. Access Control

2.1. Preventing Unauthorized Services Access:

(a) Prowly hosts its Service with outsourced cloud infrastructure providers.

(b) Additionally, Prowly maintains contractual relationships with vendors in order to provide the Service in accordance with DPA. Prowly relies on contractual agreements, privacy policies, and vendor compliance procedures in order to protect data processed or stored by these vendors.

(c) Prowly hosts its Services infrastructure with outsourced infrastructure providers.

(d) Prowly implemented a uniform password policy for its Services and correspondent tools and features. All passwords must fulfil defined minimum requirements and are stored in encrypted form. Users who interact with the Services via the user interface must authenticate before accessing non-public user data.

(e) User data is stored in multi-tenant storage systems accessible to user via only application user interfaces and application programming interfaces. Users are not allowed direct access to the underlying application infrastructure. The authorization model in each of the tools and features of the Services is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions.

(f) Public Services APIs may be accessed using an API key.

2.2. Preventing Unauthorized Services Use.

Prowly implements industry standard access controls and detection capabilities for the internal networks that support its Services:

(a) Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the Services infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.

(b) Security reviews of the parts of code stored in Prowly source code repositories are performed, checking for coding best practices and identifiable software flaws.

(c) A bug bounty program invites and incentivizes independent security researchers to ethically discover and disclose security flaws. Prowly implemented a bug bounty program in an effort to widen the available opportunities to engage with the security community and improve the Services defenses against sophisticated attacks.

2.3. Authorization Requirements:

A subset of Prowly and Prowly affiliates’ employees have access to user data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Prowly and Prowly affiliates’ employees are required to conduct themselves in a manner consistent with the Prowly guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards.

3. Transmission Control

Prowly makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces. Prowly HTTPS implementation uses industry standard algorithms and certificates.

4.  Input Control

4.1. If Prowly becomes aware of unlawful access to Prowly data stored within its Services, Prowly will:

(a) notify the affected Users of the incident;

(b) provide a description of the steps Prowly is taking to resolve the incident; and

(c) provide status updates to the User contact, as Prowly deems necessary.

4.2. Notification(s) of incidents, if any, will be delivered to one or more of the User’s contacts in a form Prowly selects, which may include via email or telephone.

5. Availability Control

5.1. The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.8% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.

5.2. Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Prowly data is backed up to multiple durable data stores and replicated across multiple availability zones. Prowly uses commercially reasonable efforts to create frequent, encrypted back-up copies of Protected Data and these are stored in geographically separate locations.

5.3. Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.

The Services are designed to ensure redundancy and seamless failover. The server instances that support the Services are also architected with a goal to prevent single points of failure. This design assists Prowly operations in maintaining and updating the Services applications and backend while limiting downtime.