CiviCRM Spark Data Processing Agreement

WHEREAS

• (A) The Company acts as a Data Processor.

• (B) The Customer acts as a Data Controller.
• (C) The Parties wish to subcontract certain Services, which imply the processing of personal data.
• (D) 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).
• (E) 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, capitalized 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 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;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” or “Subscription Service” means the CiviCRM Spark services the Company provides.
• 1.1.10 “Subprocessor” means any person appointed by or on behalf of 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 responsibilities
• 2.1 Parties shall:
• 2.1.1 Comply with all applicable Data Protection Laws in the Processing of Personal Data.
• 2.1.2 The Company instructs Processor to process Personal Data within the scope of the purpose of the software.
• 2.2. Considering that all Personal Data stored by the Data Processor is provided by the Customer:
• 2.2.1 Within the scope of the Agreement and in its use of the services, the Customer will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to the Company.
• 2.2.2 In particular but without prejudice to the generality of the foregoing, the Customer acknowledges and agrees to be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which Personal Data is acquired; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring to have the right to transfer, or provide access to, the Personal Data to the Company for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that Instructions provided to the Company regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. The Customer will inform the Company without undue delay if it is not able to comply with their responsibilities.

• 3. Processor Personnel
• 3.1 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 best practices, 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, 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, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

• 5. Subprocessing
• 5.1 Consent to Subprocessor Engagement. While the Company limits as much as possible the use of Subprocessors, the Customer specifically authorizes the engagement of Subprocessors to Process Personal Data on their behalf. Subprocessors are usually limited to payment processing, for sending emails, or other features directly relevant to CiviCRM itself. The Company has currently appointed, as Subprocessors, the third parties listed in Annex 1 to this DPA. The Company will notify the Customer if a Subprocessor is added or replaced, at least 30 days prior to such changes, if the Customer opts-in to receive such emails prior to any such changes. Click here to opt-in.
• 5.2 Where the Company engages Subprocessors, data protections terms on the Subprocessors will provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Subprocessors. The Company remains responsible for the compliance of Subprocessors.
• 5.3 The Customer is responsible for any other Subprocessor that the Customer engages with.

• 6. Data Subject Requests
• 6.1 The Subscription Service provides you with a number of controls that you can use to retrieve, correct, delete or restrict Personal Data, which the Customer can use to assist it in connection with its obligations under Data Protection Laws, including obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”).
• 6.2 To the extent that the Customer is unable to independently address a Data Subject Request through the Subscription Service, then upon your written request the Company will provide reasonable assistance to help the Customer respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement. The Customer shall reimburse the Company for the commercially reasonable costs arising from this assistance.
• 6.3 If a Data Subject Request, subpoena or other communication regarding the Processing of Personal Data under the Agreement is made directly to the Company, the Company will promptly inform the Customer and will advise the Data Subject to submit their request to the Customer. The Customer will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

• 7. Personal Data Breach
• 7.1 All parties shall notify the other party without undue delay upon Processor becoming aware of a Personal Data Breach affecting Personal Data, providing the other party with sufficient information to allow all parties to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
• 7.2 All parties shall co-operate and take reasonable commercial steps to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

• 8. Data Protection Impact Assessment and Prior Consultation with Supervisory Authorities.
• 8.1. The Company shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Customer 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 Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

• 9. Deletion or return of Personal Data

• 9.1 The Company will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Subscription Service in accordance with our Product Specific Terms. This term shall apply except where we are required by applicable law to retain some or all of the Customer Data, or where we have archived Customer Data on back-up systems, which data we will securely isolate and protect from any further Processing and delete in accordance with our deletion practices. You may request the deletion of your CiviCRM Spark hosting after expiration or termination of your subscription by sending a request to spark@civicrm.org. You may retrieve your Customer Data from your CiviCRM Spark service by downloading a backup from the CiviCRM administrative interface.

• 10. Demonstration of Compliance, Audit rights
• 10.1 The Company shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits by an auditor mandated by the Customer in relation to the Processing of the Personal Data by the Contracted Processors.
• 10.2 At the Customer’s written request, the Company will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm compliance with this DPA, provided that the Customer does not exercise this right more than once per calendar year unless the Customer has reasonable grounds to suspect non-compliance with the DPA.

• 11. Data Transfer
• 11.1 The Company may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Customer. 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 email to the 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 These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that these Clauses shall be governed in accordance with the ‘Contracting Entity; Applicable Law; Notice’ section of the Jurisdiction Specific Terms or if such section does not specify an EU Member State, by the law of the Republic of Ireland (without reference to conflicts of law principles)
• 13.2 Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

Annex 1 – List of Sub-Processors