Data Processing Amendment (DPA + SCC)
Ora’s Data Processing Amendment v. 1.5 (as of Sept, 2021).
Introduction to this Amendment
Processing personal data in a secure, fair, and transparent way is extremely important to us at Ora. As part of this effort, we process personal data in accordance with EU Data Protection Laws including EU’s General Data Protection Regulation (“GDPR”), ‘and the United Kingdom(UK) Data Protection Act 2018 to the extent applicable’. We also process personal data in accordance with Non-EU Data Protection Laws governing the handling of various types of personal data including the California Consumer Privacy Act (“CCPA”), Health Insurance Portability and Accountability Act (“HIPAA”), and Payment card industry compliance (“PCI”).
To better protect individuals’ personal data, we are providing these terms to govern Ora’s and your handling of personal data (the “Data Processing Amendment” or “DPA”). This DPA forms part of, and amends the Terms of Service (“ToS”) and requires no further action on your part.
If you do not agree to this DPA, you may discontinue the use of the Ora service and cancel your account.
It is important that all parties understand what data and whose data is protected under this DPA. Each party has respective obligations to protect personal data; therefore, the following definitions explain the scope of this DPA and the mutual commitments to protect personal data.
“Ora”, “we”, “us”, or “our” refers to the provider of the Ora website and services, (collectively referred to as the “Ora Service.”).
“You” or “Customer” refers to the company or organization that signs up to use the Ora Service to manage the relationships with your consumers or service users.
“Party” refers to Ora and/or the customer depending on the context.
“Personnel” refers to those individuals who are employed by or are under contract to perform a service on behalf of one of the parties. Personnel may have rights in their personal data (including business contact information) if they reside in the EU. It is important to be clear about how personnel’s rights are protected.
“Sub-processor” is a Third-party, independent contractors, vendors and suppliers who provide specific services and products related to the Ora website and our services, such as hosting, credit card processing and fraud screening, and mailing list hosting ("third-party" or "outside contractor" shall have similar meanings).
“Incident” means: (a) a complaint or a request with respect to the exercise of an individual’s rights under the GDPR; (b) an investigation into or seizure of the personal data by government officials, or a specific indication that such an investigation or seizure is imminent; or (c) any breach of the security and/or confidentiality as set out in this DPA leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the personal data, or any indication of such breach having taken place or being about to take place.
The terms, “Data Subject”, “Personal Data”,“Member State”, “Controller”, “Processor”, and “Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
‘Data Protection Law’ means all applicable legislation relating to data protection and privacy including without limitation the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time
"SCCs" refers to the standard contractual clauses for processors as approved by the European Commission or Swiss Federal Data Protection Authority (as applicable).
For the sake of readability, we do not use initial capitalization of defined terms in this DPA. Defined terms are defined terms, irrespective of their format.
1. Undertakings regarding personal data
- Each party agrees that personal data shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction with respect to each other’s personal data.
- Personal Data shall remain the property of the disclosing party. Ora acknowledges that customer is the controller and maintains control over data subject’s personal data.
- Ora will process customer’s personal data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written instructions from the customer that are mutually agreed upon in writing. The details of the processing of personal data as required by Article 28(3) GDPR are set out at Annex B. Ora agrees that:
- it will implement and maintain a reasonable and appropriate security program comprising adequate security, technical and organizational measures to protect against unauthorized, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, customer personal data;
- it will not modify, alter, delete, publish or disclose any customer personal data to any third party, nor allow any third party to process such personal data on Ora’s behalf unless the third party is bound to similar confidentiality and data handling provisions;
- it shall ensure that access to personal data is limited to those personnel who require such access to perform its obligations under the ToS, and its personnel engaged in the processing of personal data are informed of the confidential nature of the personal data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Ora shall ensure that such confidentiality obligations survive the termination of the personnel engagement; and
- it will only process customer personal data to the extent necessary to perform its obligations under the ToS, upon written instructions of the customer (only as mutually agreed upon), and in accordance with applicable laws.
- Upon termination of your account, Ora will delete, or at customer’s request, return all personal data in accordance with our standard backup and retention policy per the ToS, normally, no later than 90 days, unless we are required to retain personal data due to Union, Member State or United States laws; in which case Ora reserves the right to retain personal data.
- The parties acknowledge that customer may from time to time be in possession of personal data relating to Ora’s personnel in connection with the use of the Ora Service. Ora warrants that it has provided to such personnel all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required under any applicable law in order to enable: (i) the disclosure of Ora’s personnel personal data to customer in connection with the customer’s use of the Ora Service; and (ii) further processing of such Ora personal data by customer for the purpose of using the Ora Service.
2. Undertakings regarding sub-processors
1. The parties acknowledge that Ora may engage third-party sub-processors in connection with the obligations of the ToS. For any sub-processor with which Ora engages, we will enter into a written agreement containing data protection obligations no less protective than those in this amendment and as required to protect customer’s personal data to the standard required by the GDPR
- Ora shall make available to customer the current list of sub-processors by posting that list online at: https://ora.pm/subprocessors Ora shall notify customer in writing, including by email if it adds or removes sub-processors at least 10 days prior to any such changes if customer opts in to receive such notifications by signing up at https://ora.pm/subprocessors. Customer may object to a new sub-processor appointment or replacement, provided such objection is based on reasonable grounds related to data protection. Ora will use reasonable efforts to work in good faith with customer to find an acceptable, reasonable, alternate solution. If the parties are not able to agree to an alternate solution, customer may suspend or terminate their account.
- Customer acknowledges and agrees that customer is solely responsible for subscribing to notifications of sub-processors as set out above. Ora shall have no obligation to inform customer of any new sub-processors in case of failure by customer to subscribe to such notifications pursuant to this Section 2.b.
- For the avoidance of doubt, the above authorization to the engagement of sub-processors constitutes customer’s prior written consent to the sub-processing by Ora for purposes of Clause 9 of the Standard Contractual Clauses.
3. Customer undertakings and Ora’s assistance
- Customer warrants that it has all necessary rights to provide to Ora the personal data for processing in connection with the provision of the Ora Services.
- To the extent required by applicable law, customer is responsible for ensuring that any data subject consents that may be necessary to this processing are obtained, and for ensuring that a record of such consents is maintained, including any consent to use personal data that is obtained from third parties. Should such consent be revoked by a data subject, customer is responsible for communicating the fact of such revocation to Ora, and Ora remains responsible for implementing any customer instruction with respect to the further processing of that personal data, or, as may be in accordance with any of Ora’s legal obligations.
- Customer understands, as a controller, that it is responsible (as between customer and Ora) for:
- determining the lawfulness of any processing, performing any required data protection impact assessments, and accounting to regulators and individuals, as may be needed;
- making reasonable efforts to verify parental consent when data is collected on a data subject under 16 years of age;
- providing relevant privacy notices to data subjects as may be required in your jurisdiction, including notice of their rights and provide the mechanisms for individuals to exercise those rights;
- responding to requests from individuals about their data and the processing of the same, including requests to have personal data altered, corrected, or erased, and providing copies of the actual data processed;
- implementing your own appropriate technical and organizational measures to ensure and demonstrate processing in accord with this DPA;
- notifying individuals and any relevant regulators or authorities of any incident as may be required by law in your jurisdiction.
- Ora shall assist the customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible, in fulfilling customer’s obligations to respond to individuals’ requests to exercise rights under the GDPR.
- Ora shall assist the customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible, to ensure compliance with articles 32 to 36 (inclusive) of the GDPR.
- On an annual basis, Ora will procure an independent audit of its code base and systems by independent third parties to demonstrate compliance with its obligations under this DPA. Upon customer request, and subject to confidentiality obligations, Ora shall make available to customer information reasonably necessary to demonstrate compliance with Ora’s obligations under this DPA. At a minimum, upon written request, Ora will produce to customer an executive summary of any third-party audit reports concerning the adequacy of Ora’s technical security measures as described in the Security Policy.
- Customer may contact Ora in writing to schedule an audit of the procedures relevant to the protection of personal data. Customer shall reimburse Ora for any time or resources expended for any such on-site audit at the Ora's then-current professional services rates, which shall be made available to customer upon request. Before the commencement of any such on-site audit, customer and Ora shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify Ora with information regarding any non- compliance discovered during the course of an audit.
4. Incident Management
- When either party becomes aware of an incident that impacts the processing of personal data, it shall promptly notify the other about the incident and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
- Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about an incident. Where the incident is reasonably likely to require a data breach notification under applicable laws, the party responsible for the incident shall notify the other without undue delay of having become aware of such an incident.
- Any notifications made under this section shall be made to email@example.com (when made to Ora) and to our point of contact with you (when made to the customer), and shall contain: (i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of
records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
5. Liability and Indemnity
- Each party’s liability towards the other party under or in connection with this DPA will be limited in accordance with the provisions of the ToS.
- The customer acknowledges that Ora is reliant on the customer for direction as to the extent to which Ora is entitled to process customer’s personal data on behalf of customer in performance of the Services. Consequently Ora will not be liable under the ToS for any claim brought by a data subject arising from any action or omission by Ora, to the extent that such action or omission resulted from the customer’s instructions or from customer’s failure to comply with its obligations under the applicable data protection law.
6. Duration and Termination
- This DPA shall come into effect on May 25, 2018 and shall continue until it is changed or terminated in accordance with the ToS.
- Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.
7. International Data Transfers
- Data center locations. Customer acknowledges that Ora may transfer and process personal data to and in the United States and anywhere else in the world where Ora, its affiliates or its sub-processors maintain data processing operations. Ora shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws.
- European Data transfers. To the extent that Ora is a recipient of personal data protected by EU Data Protection Laws ("EU Data"), the parties agree that Ora makes available the mechanisms listed below:
1. SCCs: Ora agrees to abide by and process EU Data in compliance with the SCCs, which are incorporated in full by reference and form an integral part of this DPA. For the purposes of the SCCs:
- Ora agrees that it is the "data importer" and customer is the "data exporter" under the SCCs (notwithstanding that customer may itself be an entity located outside the EU);
- Annex B includes the SCCs and related appendices The parties further agree that the SCCs will apply to personal data that is transferred via the Service from Europe to
outside Europe, either directly or via onward transfer, to any country or recipient: (a) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Law)
2. If and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the Standard Contractual Clauses shall prevail to the extent of such conflict.
1. To the extent Ora processes personal data originating from and protected by Data Protection Laws in one of the jurisdictions listed in Annex A, then the terms specified in Annex A with respect to the applicable jurisdiction(s) (“Jurisdiction-Specific Terms”) apply in addition to the terms of this DPA. In the event of any conflict or ambiguity between the Jurisdiction-Specific Terms and any other terms of this DPA, the applicable Jurisdiction-Specific Terms will take precedence, but only to the extent of the Jurisdiction-Specific Terms’ applicability to Ora.
Annex A - Jurisdiction-Specific Terms
1. Upon the entry into force of the Brazil’s General Data Protection Law, Lei Geral de Proteção de Dados (“LGPD”) the following will apply: each party is responsible to fulfill its respective obligations set out in the LGPD, and Customer will only issue Processing instructions, as set forth in Section 1 (Undertakings regarding personal data) of the DPA, that enable Ora to fulfill its LGPD obligations. For the purpose of Section 7 (International Data Transfers), the Standard Contractual Clauses will be used for transfers to Non-Adequate Countries as per the GDPR.
- The definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under CCPA.
- “Process,” “Processed” or “Processing” means any operation or set of operations which is performed on Personal Information, or on sets of Personal Information, whether or not by automated means.
- Ora’s obligations regarding data subject requests, as described in Section 3(d) and 3(e) (data subject rights and cooperation) of this DPA, apply to Consumer’s rights under the CCPA.
- Notwithstanding anything to the contrary, Customer Personal Information is the Personal Information that Ora processes on behalf of Customer under the Agreement. Ora may Process Customer Personal Information for the sole purpose of performing its obligations
under the Agreement and shall not use Customer Personal Information for any other purpose without the express written consent of Customer. In particular, Ora shall not: (i) sell, as it is defined in the CCPA, Customer Personal Information or share Customer Personal Information with any third party without Customer’s permission; (ii) retain, Customer or disclose Customer Personal Information for any purpose other than the purposes specified in this Agreement, including retaining, using or disclosing Customer Personal Information for a commercial purpose other than to provide its services to Customer; and (iii) retain, use or disclose Customer Personal Information outside of Ora’s business relationship with Customer. The parties acknowledge that any disclosure of Customer Personal Information pursuant to the Agreement does not confer any value under the Agreement.
- Ora shall comply with all applicable requirements of the CCPA in the performance of its obligations under the Agreement, including implementing and maintaining reasonable security measures appropriate to the nature of the Personal Information, in order to protect Customer Personal Information from unauthorized access, destruction, use, modification, or disclosure. Ora undertakes to repair any harm any person may suffer due to Processing performed in violation of its legal, regulatory and contractual obligations, except if Ora proves that it is not liable for such harm.
- Ora may de-identify or aggregate personal data as part of performing the Service specified in this DPA and the Agreement.
- Where sub-processors process the personal data of our customers, Ora takes steps to ensure that such sub-processors are Service Providers under the CCPA with whom Ora has entered into a written contract that includes terms substantially similar to this DPA or are otherwise exempt from the CCPA’s definition of “sale”. Ora conducts appropriate due diligence on its sub-processors.
- Ora takes steps to ensure that Ora's sub-processors, as described in Section 2 of the DPA, are third parties under PIPEDA, with whom Ora has entered into a written contract that includes terms substantially similar to this DPA. Ora conducts appropriate due diligence on its sub-processors.
- Ora will implement and maintain reasonable security measures appropriate to the nature of the Personal Information as set forth in Section 1 of the DPA.
1. Law on Personal Data Protection (Zakon o zaštiti podataka o ličnosti; Official Gazette of the Republic of Serbia, no 87/2018).
1. The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, as amended, superseded or replaced, once entering into force, and the UK Data Protection Act 2018.
Annex B — Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Company: Ora PM Ltd.
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in the Appendix.
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
2.1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter
‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data
2.2. the entity/ies in a third country receiving the personal data from the data exporter, directly
or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
1.1. Clause 1.2. Clause 1.3. Clause 1.4. Clause 1.5. Clause 1.6. Clause 1.7. Clause 1.8. Clause
1, Clause 2, Clause 3, Clause 6, Clause 7; 8, 1.2, 9.1, 3, 4 and 5;
9, 3, 4 and 5;
12, 1, 4 and 6;
15, 1.3, 1.4 and 1.5; 16, 5;
18, 1 and 2.
2. Paragraph (1) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
- Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
Section 2 - Obligations of the Parties
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- 1.1. The data importer shall process the personal data only on documented instructions from the
data exporter. The data exporter may give such instructions throughout the duration of the
- 1.2. The data importer shall immediately inform the data exporter if it is unable to follow those
- Purpose limitation
2.1. The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
3.1. On request, the data exporter shall make a copy of these Clauses, including the Appendix
as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
4.1. If the data importer becomes aware that the personal data it has received is inaccurate, or
has become outdated, it shall inform the data exporter without undue delay. In this case, the
data importer shall cooperate with the data exporter to erase or rectify the data.
- Duration of processing and erasure or return of data
5.1. Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned,
the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14, 1.
6. Security of processing
- 6.1. The data importer and, during transmission, also the data exporter shall implement
appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘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 purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- 6.2. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- 6.3. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is
not possible to provide all 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.
6.4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
7.1. Where the transfer 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 (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.1. The data importer shall only disclose the personal data to a third party on documented
instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, , under the appropriate Module, or if:
- 8.1.1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- 8.1.2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- 8.1.3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- 8.1.4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
- 8.1.5. Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
9. Documentation and compliance
- 9.1. The data importer shall promptly and adequately deal with enquiries from the data exporter
that relate to the processing under these Clauses.
- 9.2. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the
data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- 9.3. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for 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 audit, the data exporter may take into account relevant certifications held by the data importer.
- 9.4. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- 9.5. The Parties shall make the information referred to in paragraphs (9.2) and (9.3), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
- GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten(10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub- processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby -- in the event the data importer has factually disappeared, ceased to exist in law or has become
insolvent -- the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (1) and (2), the data importer shall comply with the instructions from the data exporter.
- The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
- In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
- Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
3.1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
3.2. refer the dispute to the competent courts within the meaning of Clause 18.
- The Parties accept that the data subject may be represented by a not-for-profit body, organisation
or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
- The data importer shall abide by a decision that is binding under the applicable EU or Member
- The data importer agrees that the choice made by the data subject will not prejudice his/her
substantive and procedural rights to seek remedies in accordance with applicable laws.
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (2), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (3) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (5), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13 Supervision
• Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or
whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
• The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
Section 3 - Local Laws and Obligations in case of access by public authorities
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (1), they have taken due account in particular of the following elements:
- 2.1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- 2.2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
- 2.3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to
the processing of the personal data in the country of destination.
- The data importer warrants that, in carrying out the assessment under paragraph (2), it has made
its best efforts to provide the data exporter with relevant information and agrees that it will
continue to cooperate with the data exporter in ensuring compliance with these Clauses.
- The Parties agree to document the assessment under paragraph (2) and make it available to the
competent supervisory authority on request.
- The data importer agrees to notify the data exporter promptly if, after having agreed to these
Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (1), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (1).
- Following a notification pursuant to paragraph (5), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(4) and (5) shall apply.
Obligations of the data importer in case of access by public authorities
1.1. The data importer agrees to notify the data exporter and, where possible, the data subject
promptly (if necessary with the help of the data exporter) if it:
- 1.1.1. receives a legally binding request from a public authority, including judicial
authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- 1.1.2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
- 1.2. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- 1.3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
- 1.4. The data importer agrees to preserve the information pursuant to paragraphs (1.1) to (1.3) for the duration of the contract and make it available to the competent supervisory authority on request.
- 1.5. Paragraphs (1.1) to (1.3) are without prejudice to the obligation of the data importer pursuant to Clause 14(5) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
2. Review of legality and data minimisation
- 2.1. The data importer agrees to review the legality of the request for disclosure, in particular
whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(5).
- 2.2. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
- 2.3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Section 4 - Final Provisions
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(6).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- 3.1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (2) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- 3.2. the data importer is in substantial or persistent breach of these Clauses; or
- 3.3. the data importer fails to comply with a binding decision of a competent court or
supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (3) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17 Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Ireland.
- A data subject may also bring legal proceedings against the data exporter and/or data importer
before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
A. List of Parties
Name: Vasil Enchev
Company: Ora PM Ltd.
Activities relevant to the data transferred under these Clauses: See Annex I.B
B. Description of Transfer
Categories of data subjects whose personal data is transferred
The personal data concern the end users of our customers.
Categories of personal data transferred
The Ora platform caters to a broad customer and end user base that spans across the spectrum of industries. Ora does not control nor limit the subject matter our customers' end users submit through the use of our tool. Considering this, the nature of the product, and Oras' role as a processor, inventorying an absolute list of data categories ingested and processed is not possible. Ora processes data that could include but is not limited to: name, age, sex, gender, family status, address, education level, lifestyle and habits, IP address and location data, customer satisfaction, profession, employment status, usage data, and image recordings (digital photo or video).
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 for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Ora processes data that could include but is not limited to the special categories of data: health data, genetic data, racial and ethnic origin, sexual orientation and/or habits, political opinion, religious affiliation or beliefs, non-political or non-trade union memberships, criminal convictions and offenses.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Personal data is ingested on a continuous basis.
Nature of the processing
Personal data is ingested by the day to day use of the platform. Data can be ingested through manual entries by Ora's customers or in an automated manner through the log collections on the platform. Data is stored within Ora's production database.
Purpose(s) of the data transfer and further processing
Personal Data is Processed for the purpose of delivering the Ora service and supporting the Ora website and the platform services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The subject matter and duration of the processing of the personal data are set out at https://ora.pm/terms.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Ora uses the subprocessors found at https://ora.pm/subprocessors when delivering services to their customers. The list specifies the subject matter and nature of the processing activities performed by Ora’s sub- processors and applicable data transfer mechanism.
C. Competent Supervisory Authority
Identify the competent supervisory authority/ies in accordance with Clause 13
Location of the Data Exporter/Data Exporter’s EU representative/Location of Data Exporter’s largest customer base
Technical and organisational measures including technical and organisational measures to ensure the security of the data
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Ora emphasizes the following principles in the design and implementation of its security program and practices: (a) physical and environmental security to protect the Service against unauthorized access, use, or modification; (b) maintaining availability for operation and use of the Service; (c) confidentiality to protect customer data; and (d) integrity to maintain the accuracy and consistency of data over its life cycle. See https://ora.pm/security for more details.
Measures of pseudonymisation and encryption of personal data
Customer Data is encrypted in transit. The connection to app.ora.pm is encrypted with 128-bit encryption and supports TLS 1.2 and above. Logins and sensitive data transfer are performed over encrypted protocols such as TLS or ssh.
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Ora maintains an information security program, which includes:
(a) having a formal risk management program;
(b) conducting periodic risk assessments of all systems and networks that process Customer Data on at least an annual basis;
(c) monitoring for security incidents and maintaining a tiered remediation plan to ensure timely fixes to any discovered vulnerabilities;
(d) a written information security policy and incident response plan that explicitly addresses and provides guidance to its personnel in furtherance of the security, confidentiality, integrity, and availability of Customer Data;
(e) penetration testing performed by a qualified third party on an annual basis; and
(f) having resources responsible for information security efforts.
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Ora takes daily snapshots of its databases and securely copies them to a separate data center for restoration purposes in the event of an incident. Backups are encrypted and have the same protection in place as production.
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
On an annual basis, Ora performs on its own and engages third-parties to perform a variety of testing to protect against unauthorized access to Customer Data and to assess the security, reliability, and integrity of the Service.
Measures for user identification and authorisation
Access to manage Ora’s AWS and Linode environments requires multi-factor authentication, ssh access to the Service is logged, and access to Customer Data is restricted to a limited set of approved Ora employees. AWS networking features such as security groups are leveraged to restrict access to AWS instances and resources and are configured to restrict access using the principle of least privilege. Employees are trained on documented information security and privacy procedures. Every Ora employee signs a data access policy that binds them to the terms of Ora’s data confidentiality policies and access to Ora systems is promptly revoked upon termination of employment.
Measures for the protection of data during transmission
Customer Data is encrypted in transit. The connection to app.ora.pm is encrypted with 128-bit encryption and supports TLS 1.2 and above. Logins and sensitive data transfer are performed over encrypted protocols such as TLS or ssh.
Measures for the protection of data during storage
Data backups are encrypted. Access to customer data is restricted.
Measures for ensuring physical security of locations at which personal data are processed
Ora uses Linode and Amazon Web Services (AWS) to provide management and hosting of production servers and databases in both the United States and the European Union. AWS employs a robust physical security program with multiple certifications, including SSAE 16 and ISO 27001 certification. Linode is also committed to the security of its infrastructure to the highest standards (ISO 27001).
Measures for ensuring events logging
Access to manage Ora’s Linode environment requires multi-factor authentication, ssh access to the Service is logged, and access to Customer Data is restricted to a limited set of approved Ora employees. Employees are trained on documented information security and privacy procedures. Every Ora employee signs a data access policy that binds them to the terms of Ora’s data confidentiality policies and access to Ora systems is promptly revoked upon termination of employment.
Measures for ensuring system configuration, including default configuration
Customer Data is encrypted in transit. The connection to app.ora.pm is encrypted with 128-bit encryption and supports TLS 1.2 and above. Logins and sensitive data transfer are performed over encrypted protocols such as TLS or ssh.
Measures for internal IT and IT security governance and management
IT Security Governance and Management structures and processes are designed to ensure compliance with data protection principles at their effective implementation. Ora maintains a formal information security program with dedicated security personnel reporting to the CTO. The Security Team is responsible for implementing security controls and monitoring Ora for suspicious activity. Policies and Procedures, including the Ora Information Security Policy, are updated on an annual basis and reviewed and approved by Management. Review of business objectives, projects, resource needs, and risk mitigation activities, including results from internal and external assessments is performed once a year.
Measures for certification/assurance of processes and products
Web application communications are encrypted over TLS 1.2, which cannot be viewed by a third party and is the same level of encryption used by banks and financial institutions. Ora's infrastructure is hosted in a fully redundant, secured environment, with access restricted to operations support staff only.
Measures for ensuring data minimisation
Ora only collects information that is necessary in order to provide the Services outlined in our Terms of Service. Our employees are directed to access only the minimum amount of information necessary to perform the task at hand.
Measures for ensuring data quality
Ora maintains web Server and application log details that include any changes to sensitive configuration settings and files. At minimum, log entries include date, timestamp, action performed, and the user ID or the device ID of the action performed. Logs are protected from change. Users who would like to exercise their rights under applicable law to update information which is out of date or incorrect may do so at any time using this form. Customer data can be erased athttps://app.ora.pm/account/advanced
Measures for ensuring limited data retention
Measures for ensuring accountability
Ora has established a comprehensive GDPR compliance program and is committed to partnering with its customers and vendors on GDPR compliance eﬀorts. Some significant steps Ora has taken to align its practices with the GDPR include:
Revisions to our policies and contracts with our partners, vendors, and users
Enhancements to our security practices and procedures
Closely reviewing and mapping the data we collect, use, and share
Creating more robust internal privacy and security documentation
Training employees on GDPR requirements and privacy and security best practices generally
Carefully evaluating and building a data subject rights’ policy and response process. Below, we provide additional details about the core areas of Ora’s GDPR compliance program and how customers can use Ora to support their own GDPR compliance initiatives.
Appointed a Data Protection Officer (“DPO”), who can be reached at firstname.lastname@example.org.
Ora oﬀers its customers who are controllers of EU personal data the option to enter into a robust data processing addendum (“DPA”) under which Ora commits to process and safeguard personal data in accordance with GDPR requirements. This includes current Standard Contractual Clauses and Ora’s commitment to process personal data consistent with the instructions of the data controller.
Measures for allowing data portability and ensuring erasure
Ora provides a mechanism for individuals to exercise their privacy rights in accordance with applicable law. Customer data can be erased by choosing to “Delete your account” athttps://app.ora.pm/account/advanced
For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter
As described in the DPA, Ora has measures in place to provide assistance to controllers as needed. Such measures include, but are not limited to, the ability to delete all Customer Personal Data associated with a domain and making available APIs to allow controllers to better manage and control their data. With regard to Data Subject Requests, in the event the controller is unable to address a Data Subject Request in its use of the Service, Ora will, upon request, provide commercially reasonable efforts to assist the controller in responding to such Data Subject Request, to the extent Ora is legally permitted to do so and the response to such Data Subject Request is required under Applicable Law