Data Processing Agreement

The purpose of this data processing agreement (the "DPA") is to ensure compliance with Article 28(3) and (4) of the EU General Data Protection Regulation ("GDPR") and Article 9 of the Swiss Federal Act on Data Protection ("FADP"), with respect to each law only if and to the extent applicable to the respective processing activity.

This DPA applies with respect to the processing of personal data as specified in Section A.

Where this DPA uses the terms defined in the GDPR or the FADP, as applicable, those terms shall have the same meaning as in that law.

This DPA shall be read and interpreted in the light of the provisions of the GDPR and the FADP, as applicable.

These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in the GDPR or the FADP, as applicable, or prejudices the fundamental rights or freedoms of the data subjects.

The details of the processing operations, and in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the Controller, are specified in Section A.

No AI Training: For clarity, the Processor shall not use Customer Personal Data to train, fine-tune, or otherwise improve any machine-learning or artificial-intelligence model, nor permit any affiliate or Sub-Processor to do so, unless the Processor receives prior written instructions from the Controller.

The Processor shall promptly notify the Controller about any request received directly from the data subject. It shall not respond to that request itself, unless and until it has been authorized to do so by the Controller.

The Processor shall assist the Controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights in accordance with Chapter III of the GDPR and Chapter 4 of the FADP, namely:

• the right to be informed when personal data are collected from the data subject;
• the right to be informed when personal data have not been obtained from the data subject;
• the right of access by the data subject;
• the right to rectification;
• the right to erasure (‘the right to be forgotten’);
• the right to restriction of processing;
• the notification obligation of rectification or erasure of personal data or restriction of processing;
• the right to data portability;
• the right to object;
• the right not to be subject to a decision based solely on automated processing, including profiling; and
• the right to withdraw consent.

The Processor shall assist the Controller in case a data subject has lodged a complaint to the competent supervisory authority that concerns data processed on the basis of this DPA.

In addition to the Processor’s obligation to assist the Controller pursuant to Clause 5, the Processor shall furthermore assist the Controller in ensuring compliance with the following obligations, taking into account the nature of the processing and the information available to the Processor:

• The obligation to notify a personal data breach to the competent supervisory authority without undue delay after having become aware of it, (unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons), in accordance with Article 33 GDPR and Article 24(1) to (3) FADP;
• the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, in accordance with Article 34 GDPR and Article 24(4) FADP;
• the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons, in accordance with Article 35 GDPR and Article 22 FADP;
• the obligation to consult the competent supervisory authority prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the Controller to mitigate the risk, in accordance with Article 36 GDPR and Article 23 FADP.

The Parties shall set out in Section C the appropriate technical and organizational measures by which the Processor is required to assist the Controller in the application of this Clause as well as the scope and the extent of the assistance required.

In the event of a personal data breach, the Processor shall cooperate in good faith with and assist the Controller in any way necessary for the Controller to comply with its obligations under Articles 33 and 34 of the GDPR and Article 24 of the FADP, as applicable, taking into account the nature of processing and the information available to the Processor.

The Processor shall assist the Controller in notifying the personal data breach to the competent supervisory authority, where relevant. The Processor shall be required to assist in obtaining in particular the following information which, pursuant to Article 33(3) GDPR or Article 24(2) FADP, as applicable, shall be stated in the Controller’s notification:

• The nature of the personal data including where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of personal data records concerned;
• the likely consequences of the personal data breach;
• the measures taken or proposed to be taken by the Controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Without prejudice to any provisions of the GDPR or the FADP, as applicable, in the event that the Processor is in breach of its obligations under this DPA, the Controller may instruct the Processor to temporarily suspend the processing of personal data until the latter complies with this DPA or the contract is terminated. The Processor shall promptly inform the Controller in case it is unable to comply with this DPA, for whatever reason.

The Controller may terminate this DPA where:

• the processing of personal data by the Processor has been temporarily suspended by the Controller pursuant to point (a), Processor’s breach is material, and compliance with this DPA is not restored within a reasonable time and in any event within one month;
• the Processor is in substantial or persistent breach of this DPA or its obligations under the GDPR or the FADP, as applicable, and such breach cannot be reasonably expected to be remedied;
• the Processor fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under this DPA or under the GDPR or the FADP, as applicable.

This DPA shall remain in full force and effect so long as the Base Agreement remains in effect. Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Base Agreement in order to protect personal data shall remain in full force and effect.

Each Party’s liability arising out of or related to this DPA shall be subject to the limitations and exclusions of liability set out in the Base Agreement.

Confidentiality: The Parties agree to keep the terms and existence of this Agreement as well as any information exchanged under this Agreement confidential unless agreed otherwise between the Parties.

Entire agreement: This DPA is the entire agreement, and supersedes all prior agreements, between the Parties relating to the scope of this DPA.

Amendments: All amendments and supplements to this DPA must be made in writing (incl. non-qualified e-signature solutions).

Notices: Any notice ‘in writing’ needs to be delivered with physical mail, any notice ‘in text form’ includes any electronic message, each to the last communicated or available address. If the form is not stated, text form is sufficient.

No assignment: Neither Party may assign any of its rights, obligations or claims under this Agreement unless agreed otherwise.

Severability: If any provision of this DPA (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions will remain mutatis mutandis in full force and effect.

Governing law & jurisdiction: As per the Base Agreement.