The General Data Protection Regulations (GDPR) is a regulation in the European Union (EU) law on data protection and privacy for all individuals within EU. It comes into effect on May 25, 2018 and applies to all organizations which collect, store and/or process EU personal data.
At Nexonia, we value privacy and transparency and we want to let our customer know that Nexonia has taken complete measures to comply with these regulations. To that end we have created this Data Processing Addendum (“DPA”) which describes our data processing practices.
case, the “Agreement”). By signing the DPA, the customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Company Affiliates (defined below). By signing the DPA, parties agree to comply with the terms and conditions in this DPA in connection with the Personal Data Nexonia may Process.
This Data Protection Addendum (“Addendum”) forms part of the Terms (“Principal Agreement”) between: (i) Certify Inc., including its brands Certify, Certify Travel, Nexonia, Tallie, ExpenseWatch and SpringAhead (“Vendor or Certify Inc.”) acting on its own behalf and as agent for each Vendor Affiliate; and (ii) its customer (“Company”) acting on its own behalf and as agent for each Company Affiliate.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
Certify Inc., warrants and represents that, before any Vendor Affiliate Processes any Company Personal Data on behalf of Company, entry of Certify Inc., into this Addendum as agent for and on behalf of that Vendor Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Vendor Affiliate.
Certify Inc., and each Vendor Affiliate shall:
Annex 1 to this Addendum sets out certain information regarding the Contracted Processors’ Processing of the Company Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Company may make reasonable amendments to Annex 1 by written notice to Certify Inc., from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
Certify Inc., and each Vendor Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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 natural persons, Certify Inc., and each Vendor Affiliate shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, Certify Inc., and each Vendor Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Company authorises Certify Inc., and each Vendor Affiliate to appoint (and permit each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors in accordance with this section 6 and any restrictions in the Principal Agreement.
Certify Inc., and each Vendor Affiliate may continue to use those Subprocessors already engaged by Certify Inc., or any Vendor Affiliate as at the date of this Addendum, subject to Certify Inc., and each Vendor Affiliate in each case as soon as practicable meeting the obligations set out in section 6.4.
Certify Inc., shall give Company prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 30 days of receipt of that notice, Company notifies Certify Inc., in writing of any objections (on reasonable grounds) to the proposed appointment:
With respect to each Subprocessor, Certify Inc., or the relevant Vendor Affiliate shall:
Certify Inc., and each Vendor Affiliate shall ensure that each Subprocessor performs the obligations under sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Company Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Certify Inc.
Taking into account the nature of the Processing, Certify Inc., and each Vendor Affiliate shall assist Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Company’s obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
Certify Inc., shall:
Certify Inc., shall notify Company without undue delay upon Certify Inc., or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Certify Inc., shall co-operate with Company and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Certify Inc., and each Vendor Affiliate shall provide reasonable assistance to each Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required of Company by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Subject to sections 10.2 and 10.3 Certify Inc., and each Vendor Affiliate shall promptly and in any event within 90 days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion, anonymization or pseudonymization of all copies of those Company Personal Data.
Subject to section 10.3, Company may in its absolute discretion by written notice to Certify Inc., within 30 days of the Cessation Date require Certify Inc., and each Vendor Affiliate to (a) return a complete copy of all Company Personal Data to Company by secure file transfer in such format as is reasonably notified by Company to Certify Inc.; and (b) delete and procure the deletion, anonymization or pseudonymization of all other copies of Company Personal Data Processed by any Contracted Processor. Certify Inc., and each Vendor Affiliate shall comply with any such written request within 60 days of the Cessation Date.
Each Contracted Processor may retain Company Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Certify Inc., and each Vendor Affiliate shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
Certify Inc., shall provide written certification to Company that it and each Vendor Affiliate has fully complied with this section 10 within 90 days of the Cessation Date.
Subject to sections 11.2 to 11.4, Certify Inc., and each Vendor Affiliate shall make available to Company on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Company or an auditor mandated by Company in relation to the Processing of the Company Personal Data by the Contracted Processors.
Information and audit rights of Company only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
Company or the relevant Company Affiliate undertaking an audit shall give Certify Inc., or the relevant Vendor Affiliate reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing (or, if it cannot avoid, to minimise) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
where Company or the relevant Company Affiliate undertaking an audit has identified its concerns or the relevant requirement or request in its notice to Certify Inc., or the relevant Vendor Affiliate of the audit or inspection.]
Subject to section 12.3, Company (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from Company to that Contracted Processor.
The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
Certify Inc., warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor which is not a Vendor Affiliate, Certify Inc’s or the relevant Vendor Affiliate’s entry into the Standard Contractual Clauses under section 12.1, and agreement to variations to those Standard Contractual Clauses made under section 13.4.1, as agent for and on behalf of that Subprocessor will have been duly and effectively authorised (or subsequently ratified) by that Subprocessor.
Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
Nothing in this Addendum reduces Certify Inc’s or any Vendor Affiliate’s obligations under the Principal Agreement in relation to the protection of Personal Data or permits Certify Inc., or any Vendor Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
If Company gives notice under section 13.4.1:
If Company gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Company’s notice as soon as is reasonably practicable.
Neither Company nor Certify Inc., shall require the consent or approval of any Company Affiliate or Vendor Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
IN WITNESS WHEREOF, this Addendum is entered into and becomes a binding part of the Principal Agreement with effect from the date first set out above.
This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.
Nexonia has developed a software to provide services for travel booking and management, expense tracking and management, time tracking and management, and vendor procurement and invoice management for which Nexonia collects and processes Company Personal Data.
Name, email, phone number (optional), employee and payroll ID (optional), credit card transaction data (optional), credit card user credentials (optional), and direct deposit banking information (for ACH, wire transfer service).
The obligations and rights of Company and Company Affiliates are set out in the Principal Agreement and this Addendum.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.
For the purposes of the Clauses:
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
The data exporter agrees and warrants:
The data importer agrees and warrants:
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is:
The data importer is:
The personal data transferred concern the following categories of data subjects:
Employees, Managers, Accountants, Administrators, Payees
The personal data transferred concern the following categories of data:
Identifying information as pertinent for the purposes involved with travel and expense tracking and management such as name, email, phone number (optional), credit card (only for credit card data feed service), direct deposit (for ACH, wire transfer service).
The personal data transferred concern the following special categories of data:
The personal data transferred will be subject to the following basic processing activities:
Providing services for travel and expense tracking and management.
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Firewalls, SSL certificates, web application firewalls, secure development lifecycle management, secure coding practices, 2FA access, Client-based VPN access, PCI Level 1 Service Provider, SOC 2 Type II audit, third party vulnerability assessments, internal vulnerability assessments, continuous employee education, virus/malware scanning, phishing protection, and more.