DATA PROCESSING AGREEMENT
Effective date: Nov 1, 2022 Last updated on: Jan 31, 2024
This Data Processing Agreement (the “DPA”) constitutes a legally binding agreement between Yin Yang Inc (“Company”) and the entity (“Customer”) on whose behalf the Company Processes Personal Data under the Terms and Conditions available at https://truto.one/tos (the “Terms”). The Company and the Customer are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
This DPA forms an integral part of the Terms and is applicable where the Company Processes Customer’s Personal Data, including but not limited to data originating from the European Economic Area (EEA), United Kingdom (UK), Switzerland, United States (specifically CCPA), and any other region globally.
Terms not specifically defined herein shall have the meaning ascribed thereto in the Terms. In this DPA, the following terms shall have the following meanings:
“Data Protection Laws” shall refer to the data protection and privacy legislation applicable in the country where You are established, along with any other data protection laws relevant to You concerning the Terms. This includes, but is not limited to, (a) the General Data Protection Regulation (GDPR), (b) in the context of the UK, the GDPR as incorporated into UK law by section 3 of the United Kingdom European Union (Withdrawal) Act 2018 ("UK GDPR"), along with the Data Protection Act 2019 (collectively, "UK Data Protection Laws"), (c) the Swiss Federal Data Protection Act and its implementing ordinances ("Swiss DPA"), and (d) any other applicable legislation. All aforementioned laws are recognized as they may be amended, superseded, or replaced.
“GDPR” shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons about the Processing of personal data and the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” shall mean any information relating to an identified or identifiable natural person; an identifiable natural person can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person forming a part of Customer Data.
“Restricted Transfer” means (i) where the GDPR applies, a transfer of Personal Data from the EEA to a country outside 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 under 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.
“Sensitive Personal Information” shall mean information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data to uniquely identify a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offenses or convictions, as well as any other information deemed sensitive under applicable data protection laws.
“Standard Contractual Clauses” or “SCCs” means (i) where the GDPR applies, the standard contractual clauses as approved by the European Commission (Implementing Decision (EU) 2021/914 of 04 June 2021) Implementing Decision (EU) 2021/914 of 04 June 2021) and available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914 (“EU SCCs”); (ii) where the UK GDPR applies, the International Data Transfer Addendum to the EU SCCs issued by the UK Information Commissioner, Version B1.0, in force from 21 March 2022 set forth as Schedule D (“UK SCCs”) and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the “Swiss SCCs”) (in each case, as updated, amended or superseded from time to time).
“Controller”, “Data Subject”, “Personal Data Breach”, “Processor” and “Process(ing)” shall have the meaning given to them in the GDPR.
2. Scope and Responsibilities
2.1 This DPA applies to the Process of Personal Data originating from the UK, EEA, Switzerland, and any other region globally.
2.2 The Company shall Process Personal Data only on the Customer’s behalf and at all times only per this DPA. For the avoidance of doubt, the Company shall be the Processor where Customer is the Controller of the Personal Data, and where Customer is the Processor, the Company shall be the sub-processor of Personal Data.
2.3 Within the scope of the Terms, each Party shall be responsible for complying with its respective obligations as Controller and Processor under Data Protection Laws.
3. Term and Termination
3.1 This DPA becomes effective upon the Customer subscribing to the Service(s) by agreeing to the Terms. It shall continue to be in force and effect as long as the Company is Processing Personal Data under the Terms and shall terminate automatically thereafter.
3.2 Where amendments are required to ensure compliance of this DPA or a Schedule with Data Protection Laws, the Parties shall make reasonable efforts to agree on such amendments upon the Customer’s request. Where the Parties are unable to agree upon such amendments, either Party may terminate the Terms per the termination procedure contained therein.
4. Processing Instructions
4.1 The Company will Process Personal Data per the Customer’s instructions. This DPA contains the Customer’s initial instructions to the Company. The Parties agree that the Customer may communicate any change in its initial instructions to the Company by way of amendment to this DPA, which shall be signed by the Parties.
4.2 For the avoidance of doubt, any instructions that would lead to Processing outside the scope of this DPA (e.g., because a new Processing purpose is introduced) will require a prior agreement between the Parties and, where applicable, shall be subject to the contract change procedure under the respective agreement.
4.3 The Company shall without undue delay inform the Customer in writing if, in its opinion, an instruction infringes Data Protection Laws, and provide a detailed explanation of the reasons for its opinion in writing.
5. Processor Personnel
The Company will restrict its personnel from Processing Personal Data without authorization. The Company will impose appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection, and data security.
6. Disclosure to Third Parties; Data Subjects Rights
6.1. The Company will not disclose Personal Data to any government agency, court, or law enforcement except with the Customer’s written consent or as necessary to comply with applicable mandatory laws. If the Company is obliged to disclose Personal Data to a law enforcement agency, the Company agrees to give the Customer reasonable notice of the access request before granting such access, to allow the Customer to seek a protective order or another appropriate remedy. If such notice is legally prohibited, the Company will take reasonable measures to protect the Personal Data from undue disclosure as if it were the company’s confidential information being requested and shall inform the Customer promptly as soon as possible if and when such legal prohibition ceases to apply.
6.2. In case the Customer receives any request or communication from Data Subjects which relate to the Processing of Personal Data ("Request"), the Company shall reasonably provide the Customer with full cooperation, information, and assistance ("Assistance") to any such Request where instructed by Customer.
6.3. Where the Company receives a Request, it shall (i) not directly respond to such Request, (ii)forward the Request to the Customer within five (5) business days of identifying the request as being related to the Customer and (iii) provide Assistance according to further instructions from Customer.
7. Technical and Organizational Measures
The Company shall implement and maintain appropriate technical and organizational security measures to ensure that Personal Data is Processed according to this DPA, to provide assistance and protect Personal Data against a Personal Data Breach ("TOMs"). Such measures shall include the measures set out in Schedule B.
8. Assistance with Data Protection Impact Assessment
8.1. Where a Data Protection Impact Assessment ("DPIA") is required under applicable DataProtection Laws for the Processing of Personal Data, the Company shall provide, upon request, to the Customer any information and assistance reasonably required for DPIA including assistance for any communication with data protection authorities, where required, unless the requested information or assistance is not about the Company’s obligations under this DPA.
8.2. The Customer shall pay the Company reasonable charges for assisting in clause 8, to the extent that such assistance cannot be reasonably accommodated within the normal provision of the Service(s).
9. Information Rights and Audit
9.1. The Company shall, per Data Protection Laws, make available to the Customer on request promptly such information as is necessary to demonstrate compliance by the Company with its obligations under the Data Protection Laws.
9.2. The Company shall, upon reasonable notice, allow for and contribute to audits of its Processing of Personal Data, as well as the TOMs (including data Processing systems, policies, procedures, and records), during regular business hours and with minimal interruption to its business operations. Such audits shall be conducted by the Customer, its affiliates, or an independent third party on its behalf (which will not be a competitor of the Company’s business) that is subject to reasonable confidentiality obligations.
9.3. The Customer shall pay the Company reasonable costs of allowing or contributing to audits or inspections per Clause 9.2 where the Customer wishes to conduct more than one audit or inspection every twelve (12) months.
9.4. The Company will immediately refer to the Customer any requests received from national data protection authorities that relate to its Processing of Personal Data.
9.5. The Company undertakes to reasonably cooperate with the Customer in its dealings with national data protection authorities and with any audit requests received from national data protection authorities.
10. Personal Data Breach Notification
In respect of any Personal Data Breach (actual or reasonably suspected), the Company shall:
10.1. Notify the Customer of a Personal Data Breach involving the Company or a subcontractor without undue delay.
10.2. Provide reasonable information, cooperation, and assistance to the Customer with any action to be taken in response to a Personal Data Breach under Data Protection Laws, including regarding any communication of the Personal Data Breach to Data Subjects and national data protection authorities.
11. Use of sub-processors
11.1. The Company has the Customer’s general authorization for the engagement of third-party sub-processors from an agreed list, as outlined in Schedule A. The Company will notify the Customer’s account administrator of any intended changes to that list through the appointment or replacement of any sub-processor at least fifteen (15) days in advance. The Customer may object to the Company’s appointment or replacement of a sub-processor before its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, the Company will either not appoint or replace the sub-processor or, if this is not possible, the Company may suspend or terminate the Service(s) (without prejudice to any fees accrued before such suspension or termination).
11.2. Where the Company, with the Customer’s authorization, engages a sub-processor, it shall do so only by way of a binding written contract that imposes on the sub-processor essentially the same data protection obligations as the ones imposed on the Company under this DPA and per Art. 28 of the GDPR.
11.3. Where the sub-processor fails to fulfill its data protection obligations under the subcontracting agreement, the Company shall remain fully liable to the Customer for the fulfillment of its obligations under this DPA and for the performance of the subprocessor’s obligations.
12. International Data Transfers
12.1. The Parties agree that when the transfer of Personal Data from the Company to the Customer is a Restricted Transfer and applicable Data Protection Laws require that appropriate safeguards are put in place, such transfer shall be subject to the appropriate Standard Contractual Clauses, which shall be deemed incorporated into and form part of this DPA as follows:
a. Concerning transfers of Personal Data originating from the EEA and subject to the EU GDPR, the SCCs shall apply, completed as follows:
i. Module 2 (Controller to Processor) shall apply where the Customer is a
Controller and the Company is a Processor. Module 3 (Processor to
Processor) shall apply where the Customer is a Processor and the Company is a sub-processor;
ii. in Clause 7, the optional docking clause will apply;
iii. in Clause 9(a), Option 2 shall apply;
iv. in Clause 11, the optional language will not apply;
v. in Clause 17, Option 1 will apply, and the EU SCCs will be governed by German law;
vi. in Clause 18(b), disputes shall be resolved before the courts of Bonn, Germany;
vii. Annex I, II, and III of the EU SCCs shall be deemed completed with the information set out in Schedule A, B, and C to this DPA respectively; and
b. Concerning transfers of Personal Data originating from Switzerland and subject to the Swiss DPA, the EU SCCs as implemented under subparagraph (a) above will apply with the following modifications and shall constitute the Swiss SCCs:
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” is the Swiss Federal Data Protection Information Commissioner;
vi. references to the “competent supervisory authority” and “competent courts” shall be replaced with references to the “Swiss Federal Data Protection Information Commissioner” and “applicable courts of Switzerland”;
vii. in Clause 17, the Standard Contractual Clauses shall be governed by the laws of Switzerland; and
viii. Concerning transfers to which the Swiss DPA applies, Clause 18(b) shall state that disputes shall be resolved before the applicable courts of Switzerland.
c. Where the UK GDPR applies, the UK SCCs shall apply to transfers of Personal Data originating in the UK to any other country not recognized by the competent
United Kingdom regulatory authority or governmental body for the United Kingdom as providing an adequate level of protection for Personal Data.
d. Where the CCPA applies, it imposes specific obligations on businesses that buy, sell, or share personal information of California residents and provides these residents with certain rights regarding their personal data. The CCPA requirements shall apply to the processing of Personal Data originating in California, ensuring compliance with the principles of transparency, accountability, and the right to privacy.
i. “CCPA” means the California Consumer Privacy Act of 2018 effective January 1, 2020, and its implementing regulations, as amended or superseded from time to time.
ii. To the extent applicable, the Processor shall only Process Personal Data per the Controller’s instructions and to the extent necessary for providing the Services as described in the Agreement, constituting a business purpose under CCPA. To the extent CCPA applies, the parties acknowledge that the transfer of any Personal Data from Controller to Processor is not a sale, and Processor provides no monetary or other valuable consideration to
Controller in exchange for Personal Data. Except as otherwise instructed by Controller, Provider is prohibited from (a) selling the Personal Data or (b) collecting, retaining, using, or disclosing the Personal Data for any purpose (including any commercial purpose) other than for the specific purpose of providing the Services under the Agreement, or as otherwise permitted by CCPA.
iii. The Processor shall provide reasonable assistance to the Controller for the fulfillment of the Controller’s obligation to respond and address requests of Data Subjects who are consumers under CCPA relating to rights provided by CCPA. Controller shall be responsible for any costs arising from the Processor ’s provision of such assistance. Processor shall not be required to delete any of the Personal Data to comply with a request to exercise CCPA rights directed by Controller if it is necessary to maintain such information per Cal. Civ. Code 1798.105(d), in which case Processor shall promptly inform Controller of the exceptions relied upon under 1798.105(d), and Processor shall not use the Personal Data retained for any other purpose than provided for by that exception.
12.2. For descriptions in the SCCs, the Customer agrees that it is the “data exporter” and the Company is the “data importer”.
12.3. The Parties agree that if the Standard Contractual Clauses are replaced, amended, or no longer recognized as valid under Data Protection Laws, or if a Supervisory Authority and/or Data Protection Law requires the adoption of an alternative transfer solution, the data exporter and data importer will: (i) promptly take such steps requested including putting an alternative transfer mechanism in place to ensure the processing continues to comply with Data Protection Laws; or (ii) cease the transfer of Personal Data and at the data exporter’s option, delete or return the Personal Data to the data exporter.
13. Deletion or Return of Personal Data
Upon termination of the Customer’s account, the Company will delete all Customer Data per the procedure outlined in the Terms. This requirement shall not apply to the extent that the Company is permitted by the applicable law to retain some or all of the Personal Data, in which event the Company shall isolate and protect the Personal Data from any further Processing.
14.1. In case of any conflict, the provisions of this DPA shall take precedence over the Terms or provisions of any other agreement with the Company.
14.2. No Party shall receive any remuneration for performing its obligations under this DPA except as explicitly set out herein or in another agreement.
14.3. Where this DPA requires a “written notice” or “written request”, such notice or request can also be communicated via email to the other Party. Notices shall be sent to the contact persons set out in Schedule A.
14.4. Any supplementary agreements or amendments to this DPA must be made in writing and signed by both Parties.
14.5. Should individual provisions of this DPA become void, invalid, or non-viable, this shall not affect the validity of the remaining conditions of this DPA.
The following Schedules form an integral part of this DPA:
A. LIST OF PARTIES UNDER THE SCCs
The data exporter is the entity that has subscribed to the Terms and their contact details are as provided by them while subscribing to the Terms.
Signature & Date: By entering into the Terms, the data exporter is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the DPA.
1. Name: Yin Yang Inc.
Address: 9450 SW Gemini Dr, PMB 69868, Beaverton, Oregon 97008-7105 US
Contact person’s name, position, and contact details: Name: Nachiappan RM
Contact: [email protected]
Activities relevant to the data transferred under these Clauses: As specified in Part B of Schedule A
Signature & Date: By entering into the Terms, the Data Importer is deemed to have signed these SCCs incorporated herein, including their Annexes, as of the Effective Date of the DPA.
Role (controller/processor): Processor/sub-processor of the data exporter
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred unless provided otherwise by the data exporter transferred Personal Data relates to the following categories of Data Subjects: data exporter’s customers, data exporter’s users, admins, or other individuals whose Personal Data is transmitted or made available to the data importer by the data exporter in the course of data exporter’s use of Services. Categories of personal data transferred concern the following categories of data: The data exporter determines the categories of Personal Data that could be transferred per the service(s) as stated in the Terms. Such categories may include the following categories of data: name, phone numbers, e-mail address, designation, photograph, system access/usage /authorization data, plus any application-specific data transferred by authorized personnel. Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.No sensitive data transferred. The data exporter shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to the data importer for processing. The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis) Personal Data is transferred continuously during the term of the Customer’s account. Nature of the processing: Collection, recording, organization, storage, retrieval, use, disclosure by transmission or otherwise making available, restriction (whether or not by automated means). Purpose(s) of the data transfer and further processing
Personal Data is transferred in the course of access and use by the data exporter of the Services so that the data importer may provide, support, maintain, and improve the Services. The data importer may further transfer Personal Data to third-party service providers that host and maintain the data importer’s applications, backup, storage, and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for providing these services to the data importer. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period upon termination of the data exporter’s account, the data importer will delete all Personal Data per clause 13 of the DPA. For transfers to (sub-) processors, also specify the subject matter, nature, and duration of the processing
Name of the Sub-processor
Hosting, Infra Services, Internet Security Services, Monitoring, Content Delivery Network, Database
Storage, Recording, Organization & Retrieval
Disclosure by transmission
C. COMPETENT SUPERVISORY AUTHORITY
In respect of the SCCs:
Module 2: Transfer Controller to Processor
Module 3: Transfer Processor to Processor
Where the Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has over the Customer per Clause 13 of the SCCs.
TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The technical and organisational measures to ensure the security of Personal Data are mentioned in the Company’s security policy which you may request access to by writing to the Company at [email protected].
LIST OF SUB-PROCESSORS
As specified in Schedule A.B.
These UK SCCs shall stand included as an addendum to the EU SCCs set implemented under Clause 12.1 (a) of this DPA.
Part 1: Tables
For data transfers from the United Kingdom that are subject to the UK SCCs, the UK SCCs will be deemed entered into (and incorporated into this Data Processing Addendum by this reference) and completed as follows:
(a) In Table 1 of the UK SCCs, the Parties’ details and key contact information shall be as outlined in Schedule A.
(b) In Table 2 of the UK SCCs, information about the version of the Approved EU SCCs, modules, and selected clauses to which this UK SCC is appended shall be as outlined in Clauses 11.1 and 12.1(a)(i), (ii), (iii), (iv) of this DPA.
(c) In Table 3 of the UK SCCs:
i. Annex 1A: List of Parties: Parties are as outlined in Schedule A.A.
ii. Annex 1B: Description of Transfer: Description of Transfer is as outlined in Schedule A & B.
iii. Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: TOMs are as outlined in Schedule B.
iv Annex III: List of Subprocessors: Subprocessors are as outlined in Schedule A.B. (d) In Table 4 of the UK SCCs, both the data importer and the data exporter may end the UK SCCs per the terms of the UK SCCs.
Part 2: Mandatory Clauses
Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament per s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses.