Data Processing Agreement
Our SCC: Standard Contractual Clauses
Last updated on: November 23, 2023 This
Data Processing Agreement (”Agreement”) forms a legally binding contract
between you and Charley.ai (based in Australia) and applies to the
extent to which Charley.ai processes Customer Personal Data on your behalf when
you are the Data Controller, WHEREAS (A) The
Company acts as a Data Controller. (B) The
Company wishes to subcontract certain Services, which imply the processing of
personal data, to the Data Processor. (C) The
Parties seek to implement a data processing agreement that complies with the
requirements of the current legal framework in relation to data processing and
with 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). (D) The
Parties wish to lay down their rights and obligations. IT IS
AGREED AS FOLLOWS: 1.
Definitions and Interpretation 1.1
Unless otherwise defined herein, capitalised terms and expressions used in this
Agreement shall have the following meaning: 1.1.1
“Agreement” means this Data Processing Agreement and all Schedules; 1.1.2
“Company Personal Data” means any Personal Data Processed by a Contracted
Processor on behalf of the Company pursuant to or in connection with the
Principal Agreement; 1.1.3
“Contracted Processor” means a Subprocessor; 1.1.4
“Data Protection Laws” means EU Data Protection Laws and, to the extent
applicable, the data protection or privacy laws of any other country; 1.1.5
“EEA” means the European Economic Area; 1.1.6
“EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into
domestic legislation of each Member State and as amended, replaced or
superseded from time to time, including by the GDPR and laws implementing or
supplementing the GDPR; 1.1.7
“GDPR” means EU General Data Protection Regulation 2016/679; 1.1.8
“Data Transfer” means: 1.1.8.1
a transfer of Company Personal Data from the Company to a Contracted Processor;
or 1.1.8.2
an onward transfer of Company Personal Data from a Contracted Processor to a
Subcontracted Processor, or between two establishments of a Contracted
Processor, in each case, where such transfer would be prohibited by Data
Protection Laws (or by the terms of data transfer agreements put in place to
address the data transfer restrictions of Data Protection Laws); 1.1.9
“Services” means the AI content writing tool that the Company provides. 1.1.10
“Subprocessor” means any person appointed by or on behalf of a Processor to
process Personal Data on behalf of the Company in connection with the
Agreement. 1.2 The
terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal
Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall
have the same meaning as in the GDPR, and their cognate terms shall be
construed accordingly. 2.
Processing of Company Personal Data 2.1
Processor shall: 2.1.1
comply with all applicable Data Protection Laws in the Processing of Company
Personal Data; and 2.1.2
not Process Company Personal Data other than on the relevant Company’s
documented instructions. 2.2 The
Company instructs the Processor to process Company Personal Data. 3.
Processor Personnel Processor
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. 4.
Security 4.1
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,
the Processor 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. 4.2 In
assessing the appropriate level of security, the Processor shall take into
account, in particular, the risks that are presented by Processing, in
particular from a Personal Data Breach. 5.
Subprocessing 5.1
Processor shall not appoint (or disclose any Company Personal Data to) any
Subprocessor unless required or authorised by the Company. 6.
Data Subject Rights 6.1
Taking into account the nature of the Processing, Processor shall assist the
Company by implementing appropriate technical and organisational measures,
insofar as is possible, for the fulfilment of the Company obligations, as
reasonably understood by the Company, to respond to requests to exercise Data
Subject rights under the Data Protection Laws. 6.2
Processor shall: 6.2.1
promptly notify Company if it receives a request from a Data Subject under any
Data Protection Law in respect of Company Personal Data; and 6.2.2
ensure that it does not respond to that request except on the documented
instructions of the Company or as required by Applicable Laws to which the
Processor is subject, in which case the Processor shall to the extent permitted
by Applicable Laws inform the Company of that legal requirement before the
Contracted Processor responds to the request. 7.
Personal Data Breach 7.1
Processor shall notify Company without undue delay upon Processor becoming
aware of a Personal Data Breach affecting Company Personal Data, providing
Company with sufficient information to allow the Company to meet any
obligations to report or inform Data Subjects of the Personal Data Breach under
the Data Protection Laws. 7.2
Processor shall cooperate with the Company and take reasonable commercial steps
as directed by the Company to assist in the investigation, mitigation, and
remediation of each such Personal Data Breach. 8.
Data Protection Impact Assessment and Prior Consultation Processor shall
provide reasonable assistance to the Company with any data protection impact
assessments, and prior consultations with Supervising Authorities or other competent
data privacy authorities, which the Company reasonably considers to be required
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. 9.
Deletion or return of Company Personal Data 9.1
Subject to this section 9 Processor shall promptly and in any event within 10
business days from the date of cessation of any Services involving the
Processing of Company Personal Data (the “Cessation Date”), delete and procure
the deletion of all copies of those Company Personal Data. 10.
Audit rights 10.1
Subject to this section 10, the Processor shall make available to the Company
on request all information necessary to demonstrate compliance with this
Agreement and shall allow for and contribute to audits, including inspections,
by the Company or an auditor mandated by the Company in relation to the
Processing of the Company Personal Data by the Contracted Processors. 10.2
Information and audit rights of the Company only arise under section 10.1 to
the extent that the Agreement does not otherwise give them information and
audit rights meeting the relevant requirements of Data Protection Law. 11.
Data Transfer 11.1
The Processor may not transfer or authorise the transfer of Data to countries
outside the EU and/or the European Economic Area (EEA) without the prior
written consent of the Company. If personal data processed under this Agreement
is transferred from a country within the European Economic Area to a country
outside the European Economic Area, the Parties shall ensure that the personal
data are adequately protected. To achieve this, the Parties shall, unless
agreed otherwise, rely on EU-approved standard contractual clauses for the
transfer of personal data. 12.
General Terms 12.1
Confidentiality. Each Party must keep this Agreement and information it
receives about the other Party and its business in connection with this
Agreement (“Confidential Information”) confidential and must not use or
disclose that Confidential Information without the prior written consent of the
other Party except to the extent that: (a)
disclosure is required by law; (b) the
relevant information is already in the public domain. 12.2
Notices. All notices and communications given under this Agreement must be in
writing and will be delivered personally, sent by post, or sent by email to the
address or email address set out in the heading of this Agreement at such other
address as notified from time to time by the Parties changing address. 13.
Governing Law and Jurisdiction 13.1
This Agreement is governed by the laws of Australia. 13.2
Any dispute arising in connection with this Agreement, which the Parties will
not be able to resolve amicably, will be submitted to the exclusive
jurisdiction of the courts of Adelaide.