Data Processing Agreement

Last updated January 26, 2021

This Data Processing Agreement (“DPA”) forms an integral part of, and is subject to the Botany Services Agreement entered into by and between Asynchronous, Inc. (DBA Botany) (“Processor”) and the entity ordering and receiving Services from the Processor (“Controller”), (the “Services Agreement”). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Services Agreement.

1. Definitions.

In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth below:

1.1 “Applicable Law” means Regulation 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 and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”), laws implementing or supplementing the GDPR.

1.2 “Controller Personal Data” means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Services Agreement.

1.3 “Data Protection Laws” means Applicable Law, US aw and, to the extent applicable, the data protection or privacy laws of any other applicable country where the Services are delivered.

1.4 “Standard Clauses” means the standard clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0087&from=en;

1.5 “Sub Processor” means any person (excluding an employee of Processor) appointed by or on behalf of Processor to Process Controller Personal Data on behalf of the Controller in connection with the Services Agreement.

1.6 The terms “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the meanings ascribed to them in the GDPR.

2. Processing of Controller Personal Data.

2.1 Processor shall Process Controller Personal Data on Controller’s behalf and at Controller’s instructions as specified in the Services Agreement and in this DPA, including without limitation with regard to transfers of Controller Personal Data to a third country or international organization. For the avoidance of doubt, Processor may use aggregated and/or anonymized data (“Aggregate Data”) for purpose of providing benchmarks and for improving the Service, as defined below, including the algorithms and models used by the Services. Any other Processing shall be permitted only in the event that such Processing is required by any Data Protection Laws to which the Processor is subject. In such event, Processor shall, unless prohibited by such Data Protection Laws on important grounds of public interest, inform Controller of that requirement before engaging in such Processing.

2.1.1 Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) (i) to Process Controller Personal Data for the provision of the services, as detailed in the Services Agreement (“Services”) and as otherwise set forth in the Services Agreement and in this DPA, and/or as otherwise directed by Controller; and (ii) to transfer Controller Personal Data to any country or territory as reasonably necessary for the provision of the Services and in accordance with Applicable Law.

2.2 The details of the Processing of Controller Personal Data, as required by Article 28(3) of the GDPR are set forth in Schedule 1 (Details of Processing of Controller Personal Data), attached hereto.

3. Controller.

Controller represents and warrants that it has and shall maintain throughout the term of the Services Agreement and this DPA, all necessary rights to provide the Controller Personal Data to Processor for the Processing to be performed in relation to the Services and in accordance with the Services Agreement and this DPA. To the extent required by Data Protection Laws, Controller is responsible for obtaining any necessary Data Subject consents to the Processing, and for ensuring that a record of such consents is maintained throughout the term of the Services Agreement and this DPA and/or as otherwise required under Data Protection Laws.

4. Processor Employees.

Processor shall take reasonable steps to ensure that access to the Controller Personal Data is limited on a need to know and/or access basis and that all Processor employees receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access to and use of Controller Personal Data.

5. Security.

Processor shall implement appropriate technical and organizational measures to ensure an appropriate level of security of the Controller Personal Data including, as appropriate and applicable, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by the nature of the Processing and the information available to the Processor.

6. Personal Data Breach.

6.1 Processor shall notify Controller without undue delay and, where feasible, not later than within 48 (forty eight) hours upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data. In such event, Processor shall provide Controller with reasonable and available information to assist Controller in meeting any obligations to inform Data Subjects or Supervisory Authorities of the Personal Data Breach as required under Applicable Law.

6.2 At the written request of the Controller, Processor shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the parties or required under Applicable Law to assist in the investigation, mitigation and remediation of any Personal Data Breach.

7. Sub Processing.

7.1 Controller authorizes Processor to appoint (and permits each Sub Processor appointed in accordance with this Section 7 to appoint) Sub Processors in accordance with this Section 7.

7.2 Processor may continue to use those Sub Processors already engaged by Processor as identified to Controller as of the date of this DPA.

7.3 Processor may appoint new Sub Processors and shall give notice of any such appointment to Controller. If, within seven (7) days of such notice, Controller notifies Processor in writing of any reasonable objections to the proposed appointment, Processor shall not appoint the proposed Sub Processor for the Processing of Controller Personal Data until reasonable steps have been taken to address the objections raised by Controller and Controller has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Controller’s reasonable objections, each of Controller or Processor may, by written notice to the other party and with immediate effect, terminate the Services Agreement to the extent that it relates to the Services requiring the use of the proposed Sub Processor. In such event, the terminating party shall not bear any liability for such termination.

7.4 With respect to each new Sub Processor, Processor shall:

7.4.1 Prior to the Processing of Controller Personal Data by Sub Processor, take reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that Sub Processor is committed and able to provide the level of protection for Controller Personal Data required by this DPA; and

7.4.2 ensure that the arrangement between the Processor and the Sub Processor is governed by a written contract, including terms that offer a materially similar level of protection for Controller Personal Data as those set out in this DPA and meet the requirements of Applicable Law.

7.5 Processor shall remain fully liable to the Controller for the performance of any Sub Processor’s obligations.

8. Data Subject Rights.

8.1 Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Processor shall, at Controller’s sole expense, use commercially reasonable efforts to assist Controller in fulfilling Controller’s obligations with respect to such Data Subject requests, as required under Data Protection Laws.

8.2 Upon receipt of a request from a Data Subject under any Data Protection Laws in respect to Controller Personal Data, Processor shall promptly notify Controller of such request and shall not respond to such request except on the documented instructions of Controller or as required by Data Protection Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Data Protection Laws, inform Controller of such legal requirement prior to responding to the request.

9. Data Protection Impact Assessment and Prior Consultation.

At Controller’s written request and expense, the Processor and each Sub Processor shall provide reasonable assistance to Controller with respect to any Controller Personal Data Processed by Processor and/or a Sub Processor, with any data protection impact assessments or prior consultations with Supervisory Authorities or other competent data privacy authorities, as required under any Data Protection Laws.

10. Deletion or Return of Controller Personal Data.

Processor shall promptly and in any event within 60 (sixty) days of the date of cessation of provision of the Services to Controller involving the Processing of Controller Personal Data, delete, return, or anonymize all copies of such Controller Personal Data, provided however that Processor may retain Controller Personal Data, as permitted by Applicable Law, and further provided that Processor will not be required to delete or return Aggregate Data.

11. Audit Rights.

11.1. Subject to Sections 11.2 and ‎11.3‎, Processor shall make available to an auditor mandated by Controller in coordination with Processor, upon prior written request, such information reasonably necessary to demonstrate compliance with this DPA and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor, provided that such third-party auditor shall be subject to confidentiality obligations.

11.2. Any audit or inspection shall be at Controller’s sole expense, and subject to Processor’s obligations to third parties, including with respect to confidentiality.

11.3. Controller and any auditor on its behalf shall use best efforts to minimize or avoid causing any damage, injury or disruption to the Processors’ premises, equipment, employees and business. Controller and Processor shall mutually agree upon the scope, timing and duration of the audit or inspection and the reimbursement rate, for which Controller shall be responsible. Processor need not give access to its premises for the purposes of such an audit or inspection:

11.3.1. to any individual unless he or she produces reasonable evidence of identity and authority;

11.3.2. if Processor was not given a prior written notice of such audit or inspection;

11.3.3. outside of normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis; or

11.3.4. for the purposes of more than one (1) audit or inspection in any calendar year, except for any additional audits or inspections which:

11.3.4.1. Controller reasonably considers necessary because of genuine concern as to Processor’s compliance with this DPA; or

11.3.4.2. Controller is required to carry out by Applicable Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Applicable Law in any country or territory, where Controller has identified its concerns or the relevant requirement or request in its prior written notice to Processor of the audit or inspection.

11.3.5. Processor shall immediately inform Controller if, in its opinion, an instruction received under this DPA infringes the GDPR or other applicable Data Protection Laws.

12. Indemnity.

Controller shall indemnify and hold Processor harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Processor and arising directly or indirectly out of or in connection with a breach of this DPA and/or the Data Protection Laws by Controller.

13. General Terms.

13.1. Governing Law and Jurisdiction.

13.1.1 The parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Services Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity.

13.1.2. This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Services Agreement.

13.2. Order of Precedence.

13.2.1. Nothing in this DPA reduces Processor’s obligations under the Services Agreement in relation to the protection of Controller Personal Data or permits Processor to Process (or permit the Processing of) Controller Personal Data in a manner that is prohibited by the Services Agreement.

13.2.2. This DPA is not intended to, and does not in any way limit or derogate from Controller’s obligations and liabilities towards the Processor under the Services Agreement and/or pursuant to Data Protection Laws or any law applicable to Controller in connection with the collection, handling and use of Controller Personal Data by Controller or other processors or their sub processors, including with respect to the transfer or provision of Controller Personal Data to Processor and/or providing Processor with access thereto.

13.2.3. Subject to this Section 13.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Services Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail. In the event of inconsistencies between the provisions of this DPA and the Standard Clauses (to the extent they apply), the Standard Clauses shall prevail.

13.3. Changes in Data Protection Laws.

13.3.1. Controller may, by at least 45 (forty five) calendar days’ prior written notice to Processor, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under any Data Protection Laws in order to allow Controller Personal Data to be Processed (or continue to be Processed) without breach of that Data Protection Laws.

13.3.2. If Controller gives notice with respect to its request to modify this DPA under Section ‎13.3.1‎, (i) Processor shall make commercially reasonable efforts to accommodate such modification request and (ii) Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein.

13.3.3 Severance. Should any provision of this DPA be held invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

Schedule 1: Details of Processing of Controller Personal Data

This Schedule 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Controller Personal Data. The subject matter and duration of the Processing of the Controller Personal Data are set out in the Services Agreement and this DPA.

The nature and purpose of the Processing of Controller Personal Data: Rendering Services in the nature of the Botany solution that provides software development productivity analytics, as detailed in the Services Agreement.

The types of Controller Personal Data to be Processed are as follows: Data regarding how the Controller’s systems and code are used, accessed, developed, tested and deployed by employees and service providers of Controller. Some of Controller’s customer data may be Processed as well. Processor does not store the Controller’s code. Processor processes the code and immediately deletes it.

The categories of Data Subject to whom the Controller Personal Data relates to are as follows: Data Subjects who are Controller’s employees or service providers who access the Controller’s systems and code. Some of Controller’s customer data may be Processed as well.

The obligations and rights of Controller. The obligations and rights of Controller are set out in the Services Agreement and this DPA.

Last updated January 26, 2021