This Data Processing Addendum (“DPA”) forms part of the End User Agreement (the “Agreement”) between Customer and DISCO, to reflect the parties’ agreement about the Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws and Regulations. References to the Agreement will be construed as including without limitation this DPA. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.
a. “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement, including the General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679).
b. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
c. “Data Subject” means an individual who is the subject of Personal Data.
d. “Personal Data” means any data relating to an identified or identifiable individual that are within the scope of protection as “personal data” under the Data Protection Laws and Regulations, and that are Processed by DISCO in connection with the provision of the DISCO software and services.
e. Processing Data. "Process” or Processing" means any operation or set of operations performed upon Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
a. Roles of the Parties. The parties agree that Customer is the controller solely responsible for determining the purposes and means of the Processing of Personal Data, and DISCO is Customer’s processor responsible for Processing Personal Data on behalf of the controller. DISCO may engage sub-processors to Process Personal Data pursuant to the requirements set forth in Section 3 “Sub- Processors” below.
b. Customer’s Processing of Personal Data. Customer is solely responsible for its compliance with the Data Protection Laws and Regulations, including without limitation the lawfulness of any transfer of Personal Data to DISCO and DISCO’s Processing of Personal Data. For the avoidance of doubt, but not by way of limitation, Customer’s instructions for the Processing of Personal Data must comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data, including providing any required notices to Data Subjects. Customer takes full responsibility to keep the amount of Personal Data provided to DISCO to the minimum necessary for DISCO to administrate the contractual relationship and to provide Customer with the DISCO software and services. Customer shall be solely responsible for establishing and maintaining any data processing registers or overview as required by any applicable law, including without limitation the Data Protection Laws and Regulations.
c. Customer’s Right to Issue Instructions. DISCO shall only Process Personal Data in accordance with Customer’s instructions, unless DISCO is required to process the Personal Data for other reasons under the Data Protection Laws and Regulations. Customer’s initial instructions for the Processing of Personal Data are defined by the Agreement, Schedule 1 to this DPA, and any applicable order form or statement of work regarding the software and services. Subject to the terms of this DPA and with mutual agreement of the parties, Customer may issue additional written instructions concerning the type, extent and procedure of Processing. Any changes of the subject matter of Processing and of procedures shall be agreed upon by the parties in writing prior to becoming effective. Customer is responsible for ensuring that all individuals who provide written instructions to DISCO are authorized by Customer to issue instructions to DISCO. DISCO will inform Customer of any instruction that it deems to be in violation of Data Protection Laws and Regulations, and DISCO will not execute such instructions until the instruction has been confirmed or modified by Customer.
d. Details of Processing. The initial nature and purpose of the Processing, duration of the Processing, categories of Data Subjects, and types of Personal Data are set forth on Schedule 1.
e. Impact Assessments and Consultations. DISCO shall, at Customer’s expense, provide reasonable assistance, including by providing any relevant information, as Customer reasonably requires in order for Customer to prepare any data protection impact assessments or undertake any necessary data protection consultation required by the Data Protection Laws and Regulations.
f. Data Breach. DISCO shall notify Customer without undue delay in accordance with the applicable Data Protection Laws and Regulations upon becoming aware of a reportable Data Breach, and shall provide Customer with all reasonable co-operation and assistance in dealing with the Data Breach.
g. Return or Deletion of Customer Personal Data. Unless otherwise required by applicable Data Protection Laws and Regulations, DISCO will destroy or return to Customer its Personal Data upon termination or expiration of the relevant provisions of the Agreement.
a. Use of Sub-processors. Customer agrees that DISCO may engage sub-processors to Process Personal Data in accordance with the DPA. A list of sub-processors including their addresses is available upon request. When engaging sub- processors, DISCO shall enter into agreements with the sub-processors to bind them to obligations which are substantially similar to those set out in this DPA. To the extent required, Customer explicitly mandates DISCO to sign such agreements directly with the sub-processors. Customer will not directly communicate with DISCO’s sub-processors about the software or services, unless agreed to by DISCO in DISCO’s sole discretion. DISCO shall remain fully liable for the acts or omissions of sub-processors.
b. DISCO Sub-processors Added After Effective Date. DISCO will notify Customer in advance of any changes to sub-processors using regular communication means such as email, websites, and portals. If Customer reasonably objects to the addition of a new sub-processors (e.g., such change causes Customer to be non-compliant with applicable Data Protection Laws and Regulations), Customer shall notify DISCO in writing of its specific objections within thirty (30) days of receiving such notification. If Customer does not object within such period, the addition of the new sub-processor and, if applicable, the accession to this DPA shall be considered accepted. If Customer does object to the addition of a new sub-processor and DISCO cannot accommodate Customer’s objection, Customer may terminate the services and software in writing within sixty (60) days of receiving DISCO’s notification.
Customer represents, warrants, and covenants the following:
a. The Personal Data has been collected and transferred to DISCO in accordance with the Data Laws and Regulations.
b. Prior to its transfer to DISCO, the Personal Data has been maintained, retained, secured and protected in accordance with the Data Protection Laws and Regulations.
c. Customer will respond to inquiries from Data Subjects and from applicable regulatory authorities concerning the Processing of the Personal Data, and will alert DISCO of any inquiries from Data Subjects or from applicable regulatory authorities that relate to DISCO’s Processing of the Personal Data.
d. Customer has a valid lawful basis for the Processing of Personal Data under this DPA.
e. Customer will make available a copy of this Agreement to any Data Subject or regulatory authorities as required by the Data Protection Laws and Regulations or upon the reasonable request of a Data Subject or a regulatory authority.
f. Customer shall be solely responsible and liable for its compliance with the Data Protection Laws and Regulations.
DISCO shall promptly notify Customer if it receives a request from a Data Subject for access to, correction, amendment or deletion of such Data Subject’s Personal Data and, to the extent applicable, DISCO shall provide Customer with commercially reasonable cooperation and assistance as is necessary for Customer to comply with its obligations under the Data Protection Laws and Regulations in relation to any such Data Subject requests. Customer shall use its best efforts to respond to and resolve promptly all requests from Data Subjects which DISCO provides to Customer. Customer shall be responsible for any reasonable costs arising from DISCO’s provision of assistance under this Section. To the extent legally permitted, Customer shall be responsible for any costs arising from DISCO’s provision of such assistance.
a. Confidentiality. DISCO shall execute written agreements with its personnel to maintain the confidentiality of Personal Data, including after the termination of the personnel.
b. Limitation of Access. DISCO shall use commercially reasonable efforts to limit access to Personal Data to personnel who require such access to perform the Agreement.
DISCO will implement appropriate technical, physical, and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing, and the risk of varying likelihood and severity of harm to the data subjects. In assessing the appropriate level of security, DISCO shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise Processed.
a. Audit Requests. DISCO's policy is to share methodology, and executive summary information, not raw data or private information. DISCO will reasonably cooperate with Customer by providing available additional information to help Customer better understand such compliance and undertakings. To the extent it is not possible to otherwise satisfy an audit obligation mandated by applicable Data Protection Laws and Regulations and subject to Section 8(c), only the legally mandated entity (such as a governmental regulatory agency having oversight of Customer’s operations) may conduct an onsite visit of the facilities used to provide the services. Unless expressly and specifically mandated by Data Protection Laws and Regulations, no audits are allowed within a data center for security and compliance reasons. After conducting an audit under this Section 8 or after receiving a DISCO report under this Section 8, Customer must notify DISCO of the specific manner, if any, in which DISCO does not comply with any of the security, confidentiality, or data protection obligations in this DPA, if applicable. Any information provided by DISCO will be deemed Confidential Information of DISCO.
b. Sub-Processors. Customer may not audit DISCO’s sub-processors without DISCO’s and DISCO’s sub-processor’s prior agreement. Customer agrees its requests to audit sub-processors may be satisfied by DISCO or DISCO’s sub-processors presenting up-to-date attestations, reports or extracts from independent bodies, including without limitation external or internal auditors, DISCO’s data protection officer or IT security personnel, data protection or quality auditors, or other mutually agreed to third parties, or certification by way of an IT security or data protection audit. Onsite audits at sub- processors premises may be performed by DISCO acting on behalf of Controller.
c. Audit Process. Unless required by Data Protection Laws and Regulations, Customer may request a summary audit report(s) or audit DISCO no more than once annually. Customer must provide at least six (6) weeks’ prior written notice to DISCO of a request for summary audit report(s) or request to audit. The scope of any audit will be limited to DISCO’s policies, procedures and controls relevant to the protection of Customer’s Personal Data as defined in Schedule 1. Subject to Section 8(b), all audits will be conducted during normal business hours, at DISCO's principal place of business or other DISCO location(s) where Personal Data is accessed, processed or administered, and will not unreasonably interfere with DISCO's day-to-day operations. An audit will be conducted at Customer’s sole cost and by a mutually agreed upon third party who is engaged and paid by Customer, and is under a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in the Agreement, obligating it to maintain the confidentiality of all DISCO Confidential Information and all audit findings. Before the commencement of any such on-site audit, DISCO and Customer shall mutually agree upon the timing, scope, and duration of the audit. DISCO will reasonably cooperate with the audit, including providing auditor the right to review but not to copy DISCO security information or materials during normal business hours. Customer shall, at no charge, provide to DISCO a full copy of all findings of the audit.
Customer authorises DISCO to transfer Personal Data outside of the EEA (a “Data Transfer”) in connection with the provision of the services under the Agreement, provided that DISCO shall implement appropriate safeguards for any such Data Transfer, as required by the Data Protection Laws and Regulations. Customer acknowledges that DISCO self-certifies and complies with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, as administered by the US Department of Commerce, but may at any time cease to maintain such self-certifications, and may instead implement alternative appropriate safeguards for any Data Transfer.
Each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the limitation of liability provisions of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, DISCO’s total liability for all claims from the Customer arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA.
The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws and Regulations.
Effective date: 11 December 2018
Nature and Purpose of Processing
Provision of ediscovery software-as-a-service and related services related to Customer’s end-clients involved in litigation, arbitration, or other dispute resolution proceedings.
Duration of Processing
DISCO will process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing. DISCO will retain Personal Data as set forth in the Agreement and DPA.
Categories of Data Subjects
Customer may submit Personal Data to the software or services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
Type of Personal Data
Customer may submit Personal Data to the software, services, or DISCO websites, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Customer may specify further types of Personal Data or categories of Data Subjects in the Agreement, or notify DISCO of any additional types or categories from time to time.