Data Processing Addendum (DPA) for Fotoware On-Premises

Based on the standard contractual clauses between controllers and processors implemented by the European Commission on the 4th of June 2021

STANDARD CONTRACTUAL CLAUSES

Section 1

Clause 1 - Purpose and scope

(a) The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) of 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.

(b) The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/.

(d) Annexes I to VI are an integral part of the Clauses.

(e) These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679.

(f) These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679.

Clause 2 - Invariability of the Clauses

(a) The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.

(b) This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3 - Interpretation

(a) Where these Clauses use the terms defined in Regulation (EU) 2016/679 respectively, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4 - Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Section II - Obligation of the parties

Clause 6 - Description of processing(s)

The details of the processing operations, 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 Annex II.

Clause 7 - Obligations of the Parties

7.1. Instructions

(a) The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented.

(b) The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 or the applicable Union or Member State data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II.

7.4. Security of processing

(a) The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.

(b) The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards.

7.6 Documentation and compliance

(a) The Parties shall be able to demonstrate compliance with these Clauses.

(b) The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.

(c) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.

(d) The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

(a) The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.

(b) Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679.

(c) At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.

(d) The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub-processor to fulfil its contractual obligations.

(e) The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

(a) Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679.

(b) The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

Clause 8 - Assistance to the controller

(a) The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller.

(b) The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions

(c) In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:

(1) 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;

(2) the obligation to consult the competent supervisory authority/ies 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;

(3) the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated;

(4) the obligations in Article 32 Regulation (EU) 2016/679

(d) The Parties shall set out in Annex III the appropriate technical and organisational 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.

Clause 9 - Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 Regulation (EU) 2016/679, where applicable, taking into account the nature of processing and the information available to the processor.

9.1 Data breach concerning data processed by the controller

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

(a) in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons);

(b) in obtaining the following information which, pursuant to Article 33(3) Regulation (EU) 2016/679, shall be stated in the controller’s notification, and must at least include:

(1) 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;

(2) the likely consequences of the personal data breach;

(3) 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.

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(c) in complying, pursuant to Article 34 Regulation (EU) 2016/679, with 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.

9.2 Data breach concerning data processed by the processor

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

(a) a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);

(b) the details of a contact point where more information concerning the personal data breach can be obtained;

(c) its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects.

The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations underArticles 33 and 34 of Regulation (EU) 2016/679

Section III – Final provisions

Clause 10 - Non-compliance with the Clauses and termination

(a) Without prejudice to any provisions of Regulation (EU) 2016/679, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.

(b) The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:

(1) the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;

(2) the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679;

(3) the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679.

(c) The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.

(d) Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

Annex I List of parties

Controller(s):

1. Name: [To be completed by Controller]

Address: [To be completed by Controller]

Contact person’s name, position and contact details: [To be completed by Controller]

By signing the applicable On-Premises Subscription Licensing Agreement, the Controller agrees to be bound by this DPA as of the effective date of that agreement.

Processor(s):

1. Name: Fotoware AS

Address: Tollbugata 35, 0157 Oslo, Norway

Contact person’s name, position and contact details:

Janniche Engum Moe

Chief Product Officer and designated Data Protection Officer

privacy@fotoware.com

By making the Software available to the Controller, Fotoware agrees to be bound by this DPA as of the effective date of the applicable On-Premises Subscription Licensing Agreement.

Annex II: Description of the processing

This Data Processing Addendum forms part of the On-Premises Subscription Licensing Agreement between Fotoware and Customer under which Fotoware licenses its on-premises Software for Digital Asset Management for installation and operation on Customer’s own infrastructure.

Scope and roles of the parties

This DPA applies to Fotoware's Processing of Personal Data in connection with providing support, maintenance, and related services for the on-premises Software. For the purposes of this DPA, Customer is the Data Controller and Fotoware is the Data Processor Processing Personal Data on Customer's behalf only to the extent Fotoware accesses Personal Data when providing such services.

Purpose and duration of the Processing

Fotoware will Process Personal Data to provide support, maintenance, troubleshooting, and related services for the on-premises Software for Digital Asset Management. The duration of Processing Personal Data shall be for the term of the Agreement.

Customer instructs Fotoware to Process Personal Data to provide support, maintenance, and related services in accordance with the Agreement and this DPA.

Categories of data subjects whose personal data is processed

Natural persons within Customer's organization operating as Users or a contact person
Natural persons which may be identified in any Content stored by Customer in the on-premises Software, to the extent such Content is accessed by Fotoware during support activities

Categories of personal data processed

Names, images, and other Personal Data included in the Content stored by Customer in the on-premises Software for Digital Asset Management, to the extent accessed by Fotoware during support activities
Contact person's and User’s name, username, email address and phone number

Annex III Technical and organisational measures including technical and organisational measures to ensure the security of the data

Customer is responsible for implementing and maintaining appropriate technical and organizational measures to protect Personal Data stored in the on-premises Software against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. Customer ensures a level of security appropriate to the risk, including encryption of Personal Data to ensure ongoing confidentiality, integrity, availability, and resilience of the on-premises Software installation and associated systems.

Fotoware’s access control for support personnel

When Fotoware personnel require access to Customer’s on-premises Software installation for support, maintenance, or troubleshooting purposes, Fotoware ensures that such access is limited to authorized support personnel who require access for the specific support task at hand. Access is provided only upon Customer’s request or with Customer’s prior authorization.

Fotoware support personnel use secure remote access methods when connecting to Customer’s systems. Customer is responsible for configuring and managing access credentials for any Fotoware personnel who require access to the on-premises Software installation.

Customer is responsible for monitoring and logging access to its on-premises Software installation. Fotoware maintains records of support activities performed by its personnel.

All Fotoware personnel authorized to access Customer’s on-premises Software installation for support purposes are trained to comply with applicable Data Protection Laws and are subject to a perpetual confidentiality obligation applicable to their support work.

Data encryption and pseudonymization

Customer is responsible for implementing encryption and pseudonymization measures to protect Personal Data stored in the on-premises Software against unauthorized access, disclosure, or destruction. Fotoware provides guidance on encryption capabilities available in the Software.

Data storage and retention

Customer is responsible for ensuring that data stored in the on-premises Software is retained in a secure manner on Customer’s infrastructure. Customer manages logical separation, access controls, and monitoring mechanisms. Fotoware provides documentation and guidance on secure configuration of the Software.

Customer is responsible for implementing measures to ensure the availability and access to Personal Data in the event of a physical or technical incident on Customer’s infrastructure.

Customer is responsible for maintaining disaster recovery and business continuity plans for its on-premises Software installation. Fotoware provides technical documentation and guidance to support Customer’s recovery planning.

Certifications

Effectiveness of technical and organizational measures

Customer is responsible for testing, assessing, and evaluating the effectiveness of technical and organizational measures implemented on Customer’s infrastructure to ensure the security of the Processing of Personal Data. Fotoware provides documentation on secure configuration and operation of the Software.

Customer is responsible for conducting security assessments and penetration testing of its on-premises Software installation. Fotoware conducts security assessments and penetration testing of the Software product and applies security updates as appropriate.

Customer is responsible for maintaining incident response and business continuity plans for its on-premises Software installation. Fotoware provides support and guidance to Customer in the event of a security incident affecting the Software.

System configuration

Customer is responsible for the security and integrity of its systems and infrastructure on which the on-premises Software is installed. Fotoware provides documentation and guidance on secure configuration settings and best practices for the Software.

Customer is responsible for reviewing and updating system configuration settings on its infrastructure. Fotoware provides updated software releases and security patches, and Customer is responsible for applying such updates to its on-premises installation.

Fotoware’s software development processes include secure coding practices, and Fotoware regularly assesses and updates default configurations in new software releases.

Internal IT

Fotoware maintains internal IT and IT security governance and management aligned with best industry practices and standards for its software development and support operations. Fotoware has established an IT security governance framework that includes policies, procedures, and controls to ensure the ongoing security and integrity of its software products.

Fotoware regularly reviews and updates its IT security governance framework. This includes conducting regular risk assessments to identify potential security risks in its software products and implementing controls to mitigate those risks.

Fotoware also has an IT security team responsible for overseeing our IT security governance and management. Our IT security team includes experienced professionals who are trained in the latest security technologies and techniques.

Furthermore, we conduct regular security awareness training for all Fotoware personnel to ensure that they are aware of potential security risks and how to mitigate them. Our training programs cover a wide range of topics, including password security, phishing prevention, and secure data handling.

Measures for ensuring deletion of Personal Data

Customer is responsible for ensuring the deletion of Personal Data from its on-premises Software installation when it is no longer needed or when requested by a Data Subject. Fotoware provides documentation on data deletion capabilities available in the Software.

Fotoware provides clear documentation and guidance on data deletion capabilities in the Software. Customer is responsible for ensuring that Personal Data is securely deleted or anonymized from its on-premises installation when it is no longer needed for the purposes for which it was collected.

Fotoware’s assistance to Customer as a Data Controller

Fotoware understands that as a Data Processor providing support services for on-premises Software, we have a responsibility to assist the Customer in ensuring the security and protection of Personal Data when accessed during support activities. To that end, we have implemented specific measures to enable us to provide effective assistance to Customer as a Data Controller.

We have a dedicated customer support team with personnel who are trained to comply with applicable Data Protection Laws and regulations. This team is responsible for aiding the Customer in support and maintenance of the on-premises Software, including providing guidance on handling requests for data access, rectification, and deletion using the Software’s capabilities.

We maintain detailed documentation and provide clear guidance to help the Customer understand and use the on-premises Software in a secure and compliant manner. This includes providing guidance on how to configure the Software to comply with applicable Data Protection Laws and regulations.

Annex IV: List of sub-processors

Fotoware may engage Subprocessors to provide certain support services. Customer authorizes Fotoware to engage the Subprocessors listed here in Annex IV. Customer acknowledges that this authorization constitutes prior written consent to Processing of Personal Data by the listed Subprocessors in accordance with Clause 7.7.

The controller has authorised the use of the following sub-processors:

1. Name: Twilio Ireland Limited

Address: 78 Sir John Rogerson’s Quay, Dublin 2, D02 R296 Ireland

Contact person’s name, position and contact details: privacy@twilio.com

Description of the processing: Email service provider. When a user signs up for an account on the Fotoware platform, requests a password reset, invites others to view an album, and for all other operations that involve sending emails from the customer’s Fotoware installation, Sendgrid is the service that powers the sending of such emails.

Data processed: Name, username, email address

Location of the processing: Europe

2. Name: Zendesk

Address: Njalsgade 72C, 2, 2300 København S, Denmark

Contact person’s name, position and contact details:

Benjamin Michelsen, Account Executive, benjamin.michelsen@zendesk.com

Description of the processing: Customer service. Personal information may be stored when Customer sends a support request to Fotoware.

Data processed: Name, email address, phone number

Location of the processing: Europe

Annex V: instructions from the controller to the processor

Subprocessor's objection right

Customer is entitled to object to the engagement of a new Subprocessor within 14 calendar days from Fotoware's prior written notice pursuant to Clause 7.7 (a). The objection notice shall be given in writing and describe Customer's reasonable grounds for objection.

Fotoware shall notify Customer at least 14 calendar days before authorizing the new Subprocessor to Process Personal Data if Fotoware chooses to retain the Subprocessor. Customer may in such case discontinue using the Software immediately and terminate the Agreement with 30 calendar days prior written notice from Fotoware's notification. Customer is entitled to a refund proportional to the remaining subscription term already paid for.

Customer is responsible for determining the location where Personal Data is stored on Customer’s infrastructure. If Fotoware support personnel access Personal Data from a location outside the EEA, Fotoware ensures that appropriate safeguards are in place, such as the EU Standard Contractual Clauses, to comply with Chapter V of Regulation (EU) 2016/679.

Annex VI: Miscellaneous

Liability

Each party's liability under this DPA is governed by the On-Premises Subscription Licensing Agreement unless otherwise required by applicable Data Protection Laws.

Affiliates of the Customer

Customer is responsible for coordinating all communication with Fotoware on behalf of its Affiliates regarding this DPA. Customer represents that it is authorized to issue instructions as well as make and receive any communications or notifications in relation to this DPA on behalf of its Affiliates.

Use of sub-processors

Clause 7.7 e) of these Clauses does not apply.

Termination

The term of these Clauses and Annexes will end upon the termination of the On-Premises Subscription Licensing Agreement.