Data Processing Agreement

1. Definitions  

‍ "Applicable Data Protection Laws" means all data protection and privacy laws applicable to the Processing of Personal Data under this Agreement, including but not limited to the General Data Protection Regulation (EU) 2016/679 (GDPR), the UK Data Protection Act 2018, the California Consumer Privacy Act (CCPA), and other applicable U.S. federal and state privacy laws, and the data protection and privacy laws of Australia, Canada, South Africa, Singapore, India, and Japan, in each case as amended, repealed, consolidated, or replaced from time to time.  

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of Processing Personal Data.   "Controller Personal Data" means Personal Data that each party Processes as a Controller, and each party is considered a Controller under Data Protection Laws.  

“Customer Personal Data” means Personal Data contained within Customer Data that Amini Processes as a Processor on behalf of Customer.  

“Customer Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data transmitted, stored, or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Subscription Services.

"Customer Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.  

"Data Subject" means an individual to whom the Personal Data relates.  

"Personal Data” means any information relating to an identified or identifiable individual where such information is protected similarly as personal data, personal information, or personally identifiable information under Data Protection Laws.  

"Processing” means any operation or set of operations performed on Personal Data, including collection, storage, use, and transfer.   “Processor” means a natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of the Controller.   "Europe" means the European Union, the European Economic Area and/or their member states, Switzerland, and the United Kingdom.    

“European Data” means Customer Personal Data that is subject to the protection of European Data Protection Laws.  

"European Data Protection Laws" means data protection laws applicable in Europe, including: (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) ("GDPR"); (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR"); and (iv) Swiss Federal Data Protection Act and its Ordinance ("Swiss DPA"); in each case, as may be amended, superseded, or replaced.    

“Instructions” means the written, documented instructions issued by Customer to Amini, and directing Amini to perform a specific or general action with regard to Customer Personal Data (including, but not limited to, depersonalizing, blocking, deletion, and making available).  

2. Purpose of Processing  

The Processor agrees to Process Personal Data solely for the purposes of onboarding Customers on the Platfrom and to faciliate access to the features of the Platform in accordance with the Controller’s documented instructions and this Agreement.  

3. Customer Responsibilities  

a. Compliance with Laws. Within the scope of the Agreement and your use of the services, you will be responsible for complying with all requirements that apply to you under Data Protection Laws with respect to your Processing of Personal Data.  

In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Customer Personal Data and the means by which you acquired such data; (ii) complying with all necessary transparency and lawfulness requirements under Data Protection Laws for the collection and use of Customer Personal Data, including providing adequate notices, obtaining any necessary consents and authorizations, and honoring opt-out preferences (particularly for use by Customer for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to, the Customer Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); (iv) complying with all laws applicable to any emails or other content created, sent, or managed through the Services (including those relating to obtaining consents to send emails, the content of emails, and email deployment practices); and (v) ensuring that your use of Controller Personal Data complies with Data Protection Laws and is strictly limited to the purposes set out in the Agreement (including this DPA). You will inform us without undue delay if you are not able to comply with your responsibilities under this 'Compliance with Laws' section or Data Protection Laws.

b. Customer Instructions. You are responsible for ensuring that your Instructions to us regarding the Processing of Customer Personal Data comply with applicable laws, including Data Protection Laws. The parties agree that the Agreement (including this DPA), together with your use of the Platform and Services in accordance with the Agreement, constitute your complete Instructions to us in relation to our Processing of Customer Personal Data, so long as you may provide additional instructions during your use of our Platform that are consistent with the Agreement and the nature and lawful use of the Platform and Services.

c. Security. You are responsible for independently determining whether the data security provided for by you adequately meets your obligations under Data Protection Laws. You are also responsible for your secure use of the Platform and Services, including protecting the security of Personal Data in transit to and from the Platform and Services (including to securely backup or encrypt such data).  

4. Amini Obligations as Processor   

a. Compliance with Instructions. We will only Process Customer Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to you or your industry that are not generally applicable to us.  

b. Conflict of Laws. If we become aware that we cannot Process Customer Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Customer Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Services until such time as you issue new lawful Instructions with regard to the Processing.  

c. Security. We will implement and maintain appropriate technical and organizational measures to protect Customer Personal Data from Customer Personal Data Breaches. Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.    

d. Confidentiality. We will ensure that any personnel whom we authorize to Process Customer Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Customer Personal Data.  

e. Customer Personal Data Breaches. We will notify you without undue delay after we become aware of any Customer Personal Data Breach and will provide timely information relating to the Customer Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Customer Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.  

f. Deletion or Return of Customer Personal Data. We will delete or return all Customer Data, including Customer Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Platform Services in accordance with the procedures set out in our Terms & Conditions. This term will 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.    

5. Data Subject Requests  

‍ Amini provides you with a number of controls that you can use to retrieve, correct, delete, or restrict Customer Personal Data, which you can use to assist you in connection with your obligations under Data Protection Laws, including your obligations relating to responding to requests from Data Subjects to exercise their rights under Data Protection Laws ("Data Subject Requests").    

To the extent that you are unable to independently address a Data Subject Request through the Platform, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Customer Personal Data under the Agreement. You will reimburse us for the commercially reasonable costs arising from this assistance.  

If a Data Subject Request or other communication regarding the Processing of Customer Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Customer Personal Data.  

6. Sub-processors

a. Authorization:  We may engage sub-processors to Process Personal Data on behalf of the Controller. We shall provide prior written notification to the Controller of any changes to its sub-processors.  
‍
b. Sub-Processor Compliance: We will ensures that any sub-processors it engages will comply with the same obligations as the Processor under this Agreement.    

7. Demonstration of Compliance  

‍We will make all information reasonably necessary to demonstrate compliance with this DPA available to you and allow for and contribute to audits, including inspections conducted by you or your auditor in order to assess compliance with this DPA, where required by applicable law. You acknowledge and agree that you will exercise your audit rights under this DPA by instructing us to comply with the audit measures described in this 'Demonstration of Compliance' section. Further, at your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year unless you have reasonable grounds to suspect noncompliance with the DPA.  

8. Data Transfers

We will not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Customer Personal Data (within the meaning of applicable European Data Protection Laws), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) (i) transferring such data to a recipient that is covered by a suitable framework or other legally adequate transfer mechanism recognized by the relevant authorities or courts as providing an adequate level of protection for Customer Personal Data, including the Data Privacy Framework; (ii) to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Laws; or (iii) to a recipient that has executed the Standard Contractual Clauses in each case as adopted or approved in accordance with applicable European Data Protection Laws.  

9. General Provisions  

a. Amendments. Notwithstanding anything else to the contrary in the Agreement and without prejudice to the ‘Compliance with Instructions’ or ‘Security’ sections of this DPA, we reserve the right to make any updates and changes to this DPA and the terms that apply in the ‘Amendment; No Waiver’ section of the Terms & Conditions will apply.  

b. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.  

c. Limitation of Liability. Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (including any other data processing agreements between the parties) and the Standard Contractual Clauses, where applicable, whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limitation of Liability' section of the Terms & Conditions and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA).  For the avoidance of doubt, if Amini is not a party to the Agreement, the ‘Limitation of Liability’ section of the Terms & Conditions will apply as between you and Amini, and in such respect any references to ‘Amini’, ‘we’, ‘us’ or ‘our’ will include both Amini and any entity within the Amini group that is a party to the Agreement. In no event will either party's liability be limited with respect to any individual's data protection rights under this DPA (including any other DPAs between the parties and the Standard Contractual Clauses, where applicable) or otherwise.  

d. Governing Law. This DPA will be governed by and construed in accordance with the ‘Contracting Entity; ‘Applicable Law; Notice’ sections of the Terms & Conditions, unless required otherwise by Data Protection Laws.