Data Processing Addendum

 

Please read the Data Processing Addendum carefully before using Our Service.

 

Last Updated: July 28, 2022

This Data Processing Addendum, including its schedules and the Standard Contractual Clauses (collectively, the "DPA"), is incorporated into and is subject to the terms and conditions of the Finresults Terms of Service ("Agreement") between the Finresults contracting entity identified in the Agreement ("Finresults") and the party identified as the customer in the Agreement ("Customer") pursuant to which Finresults provides certain Services to Customer. 

All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. This DPA is supplemental to the Agreement and sets out the roles and obligations that apply when Finresults processes personal data on behalf of Customer when providing the Services protected by Applicable Data Protection Law under the Agreement.

By entering into the Agreement, Customer enters into this DPA, and the Standard Contractual Clauses (as applicable and as defined below) on behalf of itself and, to the extent required under Applicable Data Protection Law, in the name and on behalf of its Affiliates (if any) permitted to use the Services. For the purposes of this DPA only, and except where indicated otherwise, the term "Customer" shall include Customer and such Affiliates.

The parties agree as follows:

 

1. Definitions

1.1. "Affiliates" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity. "Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests (as measured on a fully-diluted basis) then outstanding of the entity in question. The term "Controlled" will be construed accordingly.

1.2. "Applicable Data Protection Law" means all data protection and privacy laws and regulations applicable to Finresults's provision of the Services to its customers generally, including, without limitation the European Data Protection Law and the CCPA (without regard to Customer’s particular use of the Services).

1.3. "CCPA" means Title 1.81.5 California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100–1798.199), including its implementing regulations that become effective on or after the effective date of this DPA (as amended, superseded, or replaced from time to time).

1.4. "Customer Data" means any data that is protected as "personal data", "personal information" or "personally identifiable information" under Applicable Data Protection Law and processed by Finresults in accordance with Section 2.1 of this DPA in connection with the Services, and as more particularly described in Schedules 1 and 2 of this DPA (as applicable).

1.5. "Europe" means, for the purposes of this DPA, the member states of the European Economic Area ("EEA"), Switzerland and the United Kingdom ("UK"). 

1.6. "European Data Protection Law" means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("EUGDPR"); (ii) the EU GDPR as saved into UK law by virtue of section 3 of the UK's European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 (collectively referred to for these purposes as the "UK GDPR"); (iii) the Swiss Federal Data Protection Act of 19 June 1992 and its corresponding ordinances ("Swiss DPA"); (iv) the e-Privacy Directive (Directive 2002/58/EC); (v) any applicable national data protection laws made under or pursuant to or that apply in conjunction with (i), (ii), (iii) or (iv) (in each case, as superseded, amended or replaced from time to time).

1.7. "Restricted Transfer" means: (i) where the GDPR applies, a transfer of personal data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of personal data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of personal data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.

1.8. "Security Incident" means a personal data breach or any confirmed breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data transmitted, stored or otherwise processed by Finresults in connection with the provision of the Services. "Security Incident" shall not include unsuccessful attempts or activities that do not compromise the security of personal data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks and other network attacks on firewalls or networked systems.

1.9. "Standard Contractual Clauses" or "SCCs" means the standard contractual clauses for the transfer of personal data to third countries adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021.

1.10. "Sub-processor" means any third party that has access to the Customer Data and which is engaged by Finresults or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or Finresults Affiliates but shall exclude any Finresults employee, contractor, or consultant.

1.11. "UK Addendum" means the "UK Addendum to the EU Standard Contractual Clauses" issued by the Information Commissioner's Office under s.119A(1) of the UK Data Protection Act 2018.

1.12. The terms "personal data", "controller", "data subject", "supervisory authority", "processor", "personal data breach" and "processing" shall have the meaning given to them in European Data Protection Law and "process", "processes" and "processed" shall be interpreted accordingly. The terms "consumer", "business", "business purpose", "sale" (including the terms “sell”, “selling”, “sold”, and other variations thereof), "service provider" and "personal information" shall have the meaning given to them in the CCPA. 

2. Scope and Relationship of the Parties

2.1. Scope. This DPA applies to the extent Finresults processes any Customer Data protected by Applicable Data Protection Law in the course of providing the Services pursuant to the Agreement as follows:

2.1.1. Where Customer is a controller or business (as applicable) of the Customer Data covered by this DPA, Finresults shall be a processor or service provider (as applicable) processing Customer Data on behalf of the Customer and this DPA shall apply accordingly;

2.1.2. Where and to the extent Finresults and/or each relevant Finresults Affiliates process Customer Data as controller or business (as applicable), Finresults will process such Customer Data in compliance with Applicable Data Protection Law, the Finresults Privacy Policy which can be found at https://Finresults.com/privacy, and Sections 3, 5.1, 5.2, 6, 7, and 9.1.3 of this DPA, to the extent applicable, only.

2.2. Finresults Processing of Personal Data. As a processor, Finresults shall process Customer Data only for the purposes described in this DPA and only in accordance with Customer's documented lawful instructions, except to the extent required by Applicable Data Protection Law. The parties agree that this DPA and the Agreement set out the Customer's complete and final instructions to Finresults in relation to the processing of Customer Data, and (if applicable) include and are consistent with all instructions from third party controllers, and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and Finresults. Without prejudice to Section 2.3, Finresults shall notify Customer in writing, unless prohibited from doing so under Applicable Data Protection Law, if it becomes aware or believes that any data processing instruction from Customer violates Applicable Data Protection Law. Where applicable, Customer shall be responsible for any communications, notifications, assistance and/or authorizations that Finresults may be required to provide to or receive from a third-party controller.

2.3. Customer Responsibilities. Customer is responsible for the lawfulness of Customer Data processing under or in connection with the Agreement. Customer represents and warrants that (i) it has provided, and will continue to provide, all notice and obtained, and will continue to obtain, all consents, permissions and rights necessary under Applicable Data Protection Law for Finresults to lawfully process Customer Data for the purposes contemplated by the Agreement; (ii) it has complied with Applicable Data Protection Law as a controller and/or business of Customer Data for the collection and provision to Finresults and its Sub-processors of such Customer Data; and (iii) it shall ensure its processing instructions comply with applicable laws (including Applicable Data Protection Law) and that the processing of Customer Data by Finresults in accordance with Customer's instructions will not cause Finresults to be in breach of Applicable Data Protection Law.

2.4. Aggregate Data. Notwithstanding the foregoing or anything to the contrary in the Agreement, Customer acknowledges that Finresults and its Affiliates shall have a right to collect and create anonymized, aggregate and/or de-identified information (as defined by Applicable Data Protection Law) for its own legitimate business purposes.

3. Finresults as a Controller

3.1. Each party shall be individually and separately responsible for complying with the obligations that apply to it as a separate and independent controller under Applicable Data Protection Law and neither party shall be responsible for the other party's compliance with Applicable Data Protection Law. 

4. Sub-processing

4.1. Authorized Sub-processors. Customer hereby provides a general authorization to Finresults to engage Sub-processors to process Customer Data on Customer's behalf (with respect to its role as a processor or service provider, as applicable). The Sub-processors engaged by Finresults depend on the Services purchased by Customer and are made available at Finresults's website at www.Finresults.com/subprocessors ("Sub-processor List").

4.2. Notice. Finresults shall notify Customer of any new engagement of a Sub-processor at least ten (10) days before any such changes by sending an email to the email address designated by Customer to receive notifications.

5. Security and Audits

5.1. Security Measures. Finresults shall implement and maintain appropriate technical and organizational security measures designed to protect Customer Data from Security Incidents and to preserve the security and confidentiality of Customer Data. Such measures will include, at minimum, those measures described in Schedule 3 of this DPA ("Security Measures"). Finresults shall ensure that any person who is authorized by Finresults to process Customer Data shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty). 

5.2. Updates to Security Measures. Customer acknowledges that the Security Measures are subject to technical progress and development and that Finresults may update and/or modify the Security Measures from time to time, provided that such updates and/or modifications do not result in the material degradation of the overall security of the Services purchased by the Customer.

5.3. Customer Security Responsibilities. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data processed in connection with the Services. Customer shall implement and maintain appropriate technical and organizational security measures designed to protect personal data from Security Incidents and to preserve the security and confidentiality of personal data while in its dominion and control.

5.4. Security Incident Response. Upon becoming aware of a Security Incident, Finresults shall notify Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer. Finresults's notification of or response to a Security Incident in accordance with this section will not be construed as an acknowledgment by Finresults of any fault or liability with respect to the Security Incident.

5.5. Security Audits. On written request from Customer, Finresults shall provide written responses (which may include audit report summaries/extracts) to all reasonable requests for information made by Customer related to its processing of Customer Data necessary to confirm Finresults's compliance with this DPA, provided that Customer shall not exercise this right more than once in any 12 month rolling period. Notwithstanding the foregoing, Customer may also exercise such audit right in the event Customer is expressly requested or required to provide this information to a data protection authority, or Finresults has experienced a Security Incident, or on another reasonably similar basis. Nothing herein shall be construed to require Finresults to provide: (i) trade secrets or any proprietary information; (ii) any information that would violate Finresults’s confidentiality obligations, contractual obligations, or applicable law; or (iii) any information, the disclosure of which could threaten, compromise, or otherwise put at risk the security, confidentiality, or integrity of Finresults’s infrastructure, networks, systems, or data.

6. International Transfers

6.1. Processing Locations. Customer acknowledges and agrees that Finresults and its Sub-processors may transfer (including conduct Restricted Transfers) and process Customer Data to and in the United States and anywhere else in the world where Finresults, its Affiliates or its Sub-processors maintain data processing operations, as more particularly described in the Sub-processor List. The parties shall ensure that such transfers are made in compliance with the requirements of Applicable Data Protection Law and this DPA.

7. Deletion of Customer Data

7.1. Deletion. Upon termination or expiry of the Agreement, on Customer's request Finresults shall delete all Customer Data processed by Finresults as a processor (including copies) in its possession or control in accordance with the Agreement, save that this requirement shall not apply to the extent Finresults is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which data Finresults shall securely isolate and protect from any further processing and delete in accordance with its deletion practices, except to the extent required by applicable law. Customer Data processed by Finresults as a controller will be deleted or retained in accordance with the Finresults Privacy Statement. 

8. Rights of Individuals and Cooperation

8.1. Data Subject Requests. To the extent Customer is unable to independently access the relevant Customer Data within the Services, Finresults shall, at Customer's expense and taking into account the nature of the processing, provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Customer Data under the Agreement. In the event that any such request is made to Finresults directly, and Finresults is able to readily discern that such request is associated with Customer, Finresults shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Finresults is required to respond to such a request, Finresults shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.

9. Jurisdiction Specific Terms

9.1. Europe. To the extent Customer Data is subject to European Data Protection Law, the following terms shall apply in addition to the terms in the remainder of this DPA:

9.1.1. Sub-processor Obligations. Finresults shall: (i) enter into a written agreement with each Sub-processor imposing data protection terms that require Sub-processor to protect Customer Data to the standard required by applicable European Data Protection Law and this DPA; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Finresults to breach any of its obligations under this DPA. Finresults shall use reasonable efforts to provide relevant extracts of the agreement with any Sub-processor it appoints to Customer upon request.

9.1.2. Objections to Sub-processors. Customer may object in writing to Finresults’s appointment of a new Sub-processor on reasonable grounds relating to data protection (e.g., if making Customer Data available to the Sub-processor may violate European Data Protection Law or weaken the protections for such Customer Data) by notifying Finresults promptly in writing within five (5) calendar days of receipt of Finresults’s notice in accordance with Section 4.1 above. Such notice shall explain the reasonable grounds for the objection and the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If no such resolution can be reached, Finresults will, at its sole discretion, either not appoint the Sub-processor, or permit Customer to suspend or terminate the affected Product in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Customer before suspension or termination). If such objection right is not exercised by Customer in the terms described above, silence shall be deemed to constitute an approval of such engagement. 

9.1.3. Restricted Transfers. The parties agree that when the transfer of Personal Data from Customer (as "data exporter") to Finresults (as "data importer") is a Restricted Transfer, it shall be subject to the Standard Contractual Clauses, which shall be automatically incorporated by reference and form an integral part of this DPA, as follows:

 

A. Finresults as a Processor. In relation to Customer Data that is protected by the EU GDPR and is processed in accordance with Sections 2.1.1 of this DPA, the SCCs shall apply, completed as follows:

i. Module Two will apply;

ii. in Clause 7, the optional docking clause will apply;

iii. in Clause 9, Option 2 will apply, and the time period for prior notice of Sub-processor changes is identified in Section 4 above;

iv. in Clause 11, the optional language will not apply; 

v. in Clause 17, Option 1 will apply, and the SCCs will be governed by the law of the EU Member State in which the data exporter is established and if no such law Ireland law;

vi. in Clause 18(b), disputes shall be resolved before the courts of the law of the EU Member State in which the data exporter is established and if no such law Ireland law;

vii. Annex I of the SCCs shall be deemed completed with the information set out in Schedule 1 of this DPA; and

viii. subject to Sections 5.1 and 5.2 of this DPA, Annex II of the SCCs shall be deemed completed with the information set out in Schedule 3 to this DPA;

B. Finresults as a Controller. In relation to Customer Data that is protected by the EU GDPR and is processed in accordance with Section 2.1.2 of this DPA, the SCCs shall apply, completed as follows:

i. Module One will apply;

ii. in Clause 7, the optional docking clause will apply;

iii. in Clause 11, the optional language will not apply; 

iv. in Clause 17, Option 1 will apply, and the SCCs will be governed by the law of the EU Member State in which the data exporter is established and if no such law Ireland law law;

v. in Clause 18(b), disputes shall be resolved before the courts of the law of the EU Member State in which the data exporter is established and if no such law Ireland law;

vi. Annex I of the SCCs shall be deemed completed with the information set out in Schedule 2 of this DPA; and

vii. Subject to Sections 5.1 and 5.2 of this DPA, Annex II of the SCCs shall be deemed completed with the information set out in Schedule 3 to this DPA.

C. Transfers relating to the UK. In relation to Customer Data that is protected by the UK GDPR, the SCCs: (i) shall apply as completed in accordance with sub-paragraphs (A) and (B) above; and (ii) shall be deemed amended as specified by the UK Addendum attached as Schedule 4, which shall deemed executed by the parties and incorporated into and form an integral part of this DPA. Any conflict between the terms of the SCCs and the UK Addendum shall be resolved in accordance with Section 10 and Section 11 of the UK Addendum.

D. Transfers relating to Switzerland. In relation to Customer Data that is protected by the Swiss DPA, the SCCs as implemented under sub-paragraphs (A) and (B) above will apply with the following modifications:

i. references to "Regulation (EU) 2016/679" shall be interpreted as references to the Swiss DPA;

ii. references to specific Articles of "Regulation (EU) 2016/679" shall be replaced with the equivalent article or section of the Swiss DPA;

iii. references to "EU", "Union", "Member State" and "Member State law" shall be replaced with references to "Switzerland", or "Swiss law";

iv. the term "member state" shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (i.e., Switzerland);

v. Clause 13(a) and Part C of Annex I are not used and the "competent supervisory authority" is the Swiss Federal Data Protection and Information Commissioner;

vi. references to the "competent supervisory authority" and "competent courts" shall be replaced with references to the "Swiss Federal Data Protection and Information Commissioner" and "applicable courts of Switzerland";

vii. in Clause 17, the SCCs shall be governed by the laws of Switzerland; 

viii. Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland; and

ix. the SCCs shall also protect the data of legal entities until the entry into force of the revised Swiss Federal Data Protection Act. 

E. Conflicts. It is not the intention of either party to contradict or restrict any of the provisions set forth in the SCCs and, accordingly, if and to the extent the SCCs conflict with any provision of the Agreement (including this DPA), the SCCs shall prevail to the extent of such conflict.

9.1.4. Alternative Transfer Arrangement. If, and to the extent Finresults adopts an alternative data export solution (including adopting Binding Corporate Rules or any new version of or successor to the SCCs or Privacy Shield adopted pursuant to applicable European Data Protection Law) for the transfer of Customer Data as prescribed by applicable European Data Protection Laws ("Alternative Transfer Mechanism"),the Alternative Transfer Mechanism shall apply instead of any applicable transfer mechanism described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable European Data Protection Law and extends to the territories to which Customer Data is transferred) and Customer agrees to execute such other and further documents and take such other and further actions as may be reasonably necessary to give legal effect such Alternative Transfer Mechanism. In addition, if and to the extent that a court of competent jurisdiction or a supervisory authority with binding authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer Customer Data to a country that does not ensure an adequate level of protection (within the meaning of applicable European Data Protection Law), the parties shall reasonably cooperate to agree and take any actions that may be reasonably required to implement any additional measures or safeguards not described in this DPA or alternative transfer mechanisms ("Alternative Transfer Arrangements") to enable the lawful transfer of such Customer Data.

9.1.5. Data Protection Impact Assessment. To the extent Finresults is required under applicable European Data Protection Law, Finresults shall provide reasonably requested information regarding Finresults processing of Customer Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with supervisory authorities as required by law.

9.2. California. To the extent the Customer Data is subject to the CCPA, the parties agree that Customer is a business and that it appoints Finresults as its service provider to process Customer Data as permitted under the Agreement and the CCPA, or for purposes otherwise agreed in writing ("Permitted Purposes"). Customer represents and warrants that it will only provide or make personal information available to Finresults in compliance with the CCPA. Customer and Finresults agree that: (i) Finresults shall not retain, use or disclose personal information for any purpose other than the Permitted Purposes; (ii) Customer Data was not sold to Finresults and Finresults shall not sell personal information; (iii) Finresults shall not retain, use or disclose personal information outside of the direct business relationship between Customer and Finresults; and (iv) Finresults may de-identify or aggregate personal information in the course of providing the Services. Finresults certifies that it understands the restrictions set out in this Section 9.2 and will comply with them.

10. Miscellaneous

10.1. Disclosures. Customer acknowledges that Finresults may disclose this DPA (including the Standard Contractual Clauses) and any relevant privacy provisions in the Agreement to the U.S. Department of Commerce, the Federal Trade Commission, a European data protection authority or any other U.S. or European judicial or regulatory body upon their request.

10.2. Necessary Modifications. Notwithstanding anything to the contrary in the Agreement, Finresults may modify the terms of this DPA where necessary to (i) comply with a request or order by a supervisory authority or other government or regulatory entity; (ii) comply with Applicable Data Protection Law; or (iii) implement or adhere to standard contractual clauses, approved codes of conduct or certifications, binding corporate rules, or other compliance mechanisms, which may be permitted under Applicable Data Protection Law. Supplemental terms may be added as an Annex to this DPA where such terms only apply to the processing of Customer Data under the Applicable Data Protection Law of specific countries or jurisdictions. Finresults shall provide notice of such changes to Customer, and the modified DPA shall become effective in accordance with the terms of the Agreement or, if not specified in the Agreement, as otherwise provided on Finresults's website.

10.3. Conflicts. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

10.4. Claims. Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement. In particular, any claim or remedy Customer or its Affiliates may have against Finresults, its Affiliates, employees, contractors, agents and Sub-processors, arising under or in connection with this DPA, whether in contract, tort (including negligence) or under any other theory of liability, shall to the maximum extent permitted by law be subject to the limitations and exclusions of liability in the Agreement. Accordingly, any reference in the Agreement to the liability of a party means the aggregate liability of that party and all of its Affiliates under and in connection with the Agreement and this DPA together. Notwithstanding the foregoing, in no event may any party limit its liability with respect to any data subject rights or data protection authorities under this DPA.

10.5. Severability. If any provision or part-provision of this DPA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the DPA.

10.6. Governing Law. This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by European Data Protection Law or the SCCs. 

SCHEDULE 1 (C2P TRANSFERS)

Description of the Processing Activities / Transfer

Annex 1(A) List of Parties:

 

Annex 1(B) Description of Transfer:

 

 

 

 

 

 

 

Annex 1(C): Competent supervisory authority

The competent supervisory authority will be determined in accordance with European Data Protection Law.

SCHEDULE 2 (C2C TRANSFERS)

Description of the Processing Activities / Transfer

Annex 1(A) List of Parties:

 

 

 

 

 

Annex 1(B) Description of Transfer:

Annex 1(C): Competent supervisory authority

The competent supervisory authority will be determined in accordance with European Data Protection Law.

SCHEDULE 3

Technical and Organizational Measures

The following technical and organizational measures are in place across the Services to protect the personal data processed by Finresults.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 4

UK Addendum

This Schedule 4 forms part of this DPA and applies in accordance with Section 9.1.3(C) (Transfers relating to the UK) of the DPA.

 

 

 

 

 

 

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