Data Processing Agreement

Data Processing Agreement

This Data Processing Agreement (“DPA”) forms part of the Bookable Terms of Service (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, your”, “Customer”), and Bookable (“Bookable”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the Processing of Personal Data by Bookable solely on behalf of the Customer. Both parties shall be referred to as the “Parties” and each, a “Party”. Capitalised terms not defined herein shall have the meanings assigned to such terms in the Agreement. You represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.

 

1. DEFINITIONS

Definitions:

(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

(b) “Authorised Affiliate” means any of Customer’s Affiliate(s) which is explicitly permitted to use the Services pursuant to the Agreement between Customer and monday.com, but has not signed its own agreement with monday.com and is not a “Customer” as defined under the Agreement.

(c) The terms, “Controller”, “Data Subject”, “Member State”, “Processor”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR.

(d) For the purpose of clarity, within this DPA “Controller” shall also mean “Business”, and “Processor” shall also mean “Service Provider”. In the same manner, Processor’s Sub-processor shall also refer to the concept of Service Provider. “Data Protection Laws” means all privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom and the United States of America, applicable to the Processing of Personal Data under the Agreement.

(e) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.

(f) “GDPR” means 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).

(g) “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or
indirectly, to or with an identified or identifiable natural person or Consumer (as defined in the CCPA), which is processed by Bookable solely on behalf of Customer, under this DPA and the Agreement between Customer and Processor.

(h) “Sub-processor” means any third party that Processes Personal Data under the instruction or supervision of Bookable.

 

2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties.

The Parties acknowledge and agree that with regard to the Processing of Personal Data performed solely on behalf of Customer, (i) Customer is the Controller of its Users’ Account Data and Profile Data, and of Customer Data (as defined in the Agreement), (ii) Bookable is the Processor of Customer Data, and of such Users’ Account Data and Profile Data; (iii) Customer is the “Business”
and Bookable is the “Service Provider, with respect to Processing of Personal Data described in this Section 2.1. The terms “Controller” and “Processor” below hereby signify Customer and Bookable, respectively.

2.2 Customer’s Processing of Personal Data.

Customer, in its use of the Services, and Customers instructions to the Processor, shall comply with Data Protection Laws. Customer shall establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorise the Processing by Processor, and for Processor’s Processing activities on Customer’s behalf, including the pursuit of ‘business purposes’.

2.3 Processor’s Processing of Personal Data.

When Processing solely on Customer’s behalf under the Agreement, Processor shall Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and this DPA; (ii) Processing for Customer to be able to use the Services; (iii) Processing to comply with Customer’s reasonable and documented instructions, where such requests are consistent with the terms of the Agreement, regarding the manner in which the Processing shall be performed; (iv) rendering Personal Data fully anonymous, non-identifiable and non-personal; (v) Processing as required under any applicable laws to which Processor is subject; in such a case, Processor shall inform Customer of the legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. To the extent that Processor cannot comply with an instruction from Customer, Processor (i) shall inform Customer, providing relevant details of the problem, (ii) Processor may, without any kind of liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend access to the Account, and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to Processor all the amounts owed to Processor or due before the date of termination. Customer will have no further claims against Processor (including, without limitation, requesting refunds for Services) pursuant to the termination of the Agreement and the DPA as described in this paragraph.

2.4 Details of the Processing.

The subject-matter of Processing of Personal Data by Processor is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Annex 1 (Details of the Processing) to this DPA.

2.5 No Sale of Personal Information.

Bookable acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Bookable provides to Customer under the Agreement. Bookable shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Bookable represents and warrants that it understands and agrees to refrain from selling any Personal Information Processed hereunder, without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Bookable under the Agreement or this DPA to qualify as “selling” such Personal Information.

 

3. RIGHTS OF DATA SUBJECTS

3.1 Data Subject Requests.

Processor shall, to the extent legally permitted, promptly notify Customer if Processor receives a request from a Data Subject or Consumer to exercise their rights (to the extent available to them under applicable law) of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, its right not to be subject to an automated individual decision making, to opt-out of the sale of Personal Information, or the right not to be discriminated against for exercising any Consumer rights (“Data Subject Request”). Taking into account the nature of the Processing, Processor shall assist Customer by appropriate technical and organisational measures, insofar as this is possible and reasonable, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws. Processor may refer Data Subject Requests received, and the Data Subjects making them, directly to the Customer for its treatment of such requests.

 

4. BOOKABLE PERSONNEL

4.1 Confidentiality.

Processor shall ensure that its personnel engaged in the Processing of Personal Data have committed themselves to confidentiality.

4.2 Permitted Disclosures.

Without derogating from Section 2.3 above and Section 5 below, Processor may disclose and Process the Personal Data (a) to the extent required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, or (b) otherwise as required by applicable Data Protection Laws (in such a case, Processor shall inform the Customer of the legal requirement before the disclosure, unless legally prohibited from doing so), or (c) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel(s), data protection advisor(s) and accountant(s).

 

5. SECURITY

5.1 Controls for the Protection of Personal Data.

Processor shall maintain industry-standard technical and organisational measures for protection of Personal Data Processed hereunder (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, including those measures set forth in the Security Documentation, as may be amended from time to time. Upon the Customer’s reasonable request, Processor will assist Customer, at Customer’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to Data Processor.

 

6. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION

Processor maintains security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, shall notify Customer without undue delay after
becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data Processed on behalf of the Customer, including Personal Data
transmitted, stored or otherwise Processed by Processor or its Sub-processors of which Processor becomes aware (a “Personal Data Incident”). Processor shall make reasonable efforts to identify
the cause of such Personal Data Incident and take those steps as Processor deems necessary and reasonable in order to remediate the cause of such a Personal Data Incident to the extent
the remediation is within Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.

 

7. RETURN AND DELETION OF PERSONAL DATA

Upon termination of the Agreement and subject thereto, Processor shall delete all the Personal Data it Processes solely on behalf of the Customer in the manner described in the Agreement, and Processor shall delete existing copies of such Personal Data unless Data Protection Laws require or authorise the storage of the Personal Data. To the extent authorised or required by applicable law, Processor may also retain one copy of the Personal Data solely for evidence purposes and/or for the establishment, exercise or defence of legal claims and/or for compliance with legal obligations.

 

8. AUTHORISED AFFILIATES

8.1 Contractual Relationship.

The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorised Affiliates, in which case each Authorised Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on behalf of such Authorised Affiliates, thus qualifying them as the “Controller”. All access to and use of the Services by Authorised Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorised Affiliate shall be deemed a violation by Customer.

8.2 Communication.

The Customer shall remain responsible for coordinating all communication with Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorised Affiliates.

 

9. OTHER PROVISIONS

9.1 Data Protection Impact Assessment.

Upon Customer’s reasonable request, Processor shall provide Customer, at Customer’s cost, with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR (as applicable) to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Processor. Processor shall provide, at Customer’s cost, reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 10.1, to the extent required under the GDPR.

9.2 Assistance.

Processor may assist Customer, at Customer’s request and cost, in ensuring compliance with Customer’s obligations pursuant to the GDPR, and other applicable Data Protection Laws.

9.3 Modifications.

Customer may by at least forty-five (45) calendar days’ prior written notice to Processor, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of those Customer Personal Data to be made (or continue to be made) without breach of that Data Protection Law. If Customer gives notice with respect to its request to modify this DPA under this Section 11.3, then: (a) Processor shall make commercially reasonable efforts to accommodate such modification request; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein. If Customer gives notice under this Section 9.3, 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 Customer’s notice as soon as is reasonably practicable. In the event that the Parties are unable to reach such an agreement within 30 days of Customer’s notice, then Customer or Processor may, by written notice to the other Party, with immediate effect, terminate the Agreement to the extent that it relates to the Services which are affected by the proposed variations (or lack thereof). Customer will have no further claims against Processor (including, without limitation, requesting refunds for Services) pursuant to the termination of the Agreement and the DPA as described in this Section.

ANNEX 1 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing:

1. Providing the Services to Customer;
2. Performing the Agreement, this DPA and/or other contracts executed by the Parties;
3. Acting upon Customer’s instructions, where such instructions are consistent with the terms
of the Agreement;
4. Providing support and technical maintenance, if agreed in the Agreement;
5. Preventing, mitigating and investigating the risks of data security incidents, fraud, error or any illegal or prohibited activity;
6. Resolving disputes;
7. Enforcing the Agreement, this DPA and/or defending Processor’s rights;
8. Complying with applicable laws and regulations;
9. All tasks related with any of the above.

Duration of Processing:

Subject to any Section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Processor will Process Personal Data
pursuant to the DPA and Agreement for the duration of the Agreement, unless otherwise agreed upon in writing.

Type of Personal Data:

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion Categories of Data Subjects Customer may submit Personal Data to the Services which may include, but is not limited to, Personal Data relating to the following categories of Data Subjects:

● Employees, agents, advisors, freelancers of Customer (who are natural persons)
● Prospects, customers, business partners and vendors of Customer (who are natural persons)
● Employees or contact persons of Customer’s prospects, customers, business partners and vendors
● Any other third party individual with whom Customer decides to communicate through the Services.