This Data Processing Agreement (“DPA”) is incorporated by reference into, and is subject to the Albireo Solution Terms & Conditions (ToS). The following clauses of DPA constitute, an agreement

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between

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either as applicable,

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Bablr Ltd, a company registered in England and Wales (“Bablr”) which is the operator of the Albireo Solution in the United Kingdom and other parts of the world, except India and Business Users in the United Kingdom and in other parts of the world except Business Users in India

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Or as applicable,

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Neosap India Private Ltd, a company registered in India (“Bablr”) which is the operator of the Albireo Solution in India and Business Users in India.

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Definitions

All the definitions of ToS apply to this agreement. Additional definitions relevant to this agreement are given below but unless specified otherwise, all definitions of ToS and DPA shall apply to all business agreements between Bablr and Business Users.

 

“User Data” means any personal data that Bablr processes on behalf of Business Users via Albireo Platform, as more particularly described in this DPA.

 

“Data Protection Laws” means all data protection laws and regulations applicable to a party’s processing of User Data under the Agreement, including, where applicable, European Data Protection Laws and Non European Data Protection Laws.

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“European Data Protection Laws” means all data protection laws and regulations applicable to Europe, including (i) Regulation 2016/679 of the European Parliament and of the Council 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) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; (iii) applicable national implementations of (i) and (ii); (iv) the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 (together, “UK Data Protection Laws”); and (v) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”).

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“Europe” means, for the purposes of this DPA, the European Economic Area and its member states (“EEA”), Switzerland and the United Kingdom (“UK”).

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“Non-European Data Protection Laws” means the California Consumer Privacy Act (“CCPA”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Brazilian General Data Protection Law (“LGPD”), Federal Law no. 13,709/2018; and the Privacy Act 1988 (Cth) of Australia, as amended (“Australian Privacy Law”), The Indian Information Technologies Act 2000 or any other similar regulation as applicable.

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“SCCs” means (i) the standard contractual clauses between controllers and processors adopted by the European Commission and currently located here (the “2021 Controller-to-Processor Clauses”); or (ii) the standard contractual clauses between processors adopted by the United Kingdom and currently located here (the “2021 Processor-to-Processor Clauses”); as applicable in accordance with Section 6.3.

 

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, User Data on systems managed or otherwise controlled by Bablr.

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“Sensitive Data” means (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; or (f) other information that falls within the definition of “special categories of data” under applicable Data Protection Laws.

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“Sub-processor” means any processor engaged by Bablr or its Affiliates to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or this DPA. Sub-processors may include third parties or Affiliates of Bablr but shall exclude Bablr employees, contractors, or consultants.

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"UK Addendum" means the International Data Transfer Addendum issued by Information Commissioners Office under S.119(A) of the UK Data Protection Act 2018, as updated or amended from time to time.

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The terms “personal data”, “controller”, “data subject”, “processor” and “processing” shall have the meaning given to them under applicable Data Protection Laws or if not defined thereunder, the GDPR, and “process”, “processes" and “processed”, with respect to any Business User Data, shall be interpreted accordingly.

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1. Roles and Responsibilities

1.1. Parties’ roles. If European Data Protection Laws or the LGPD applies to either party’s processing of Business User Data, the parties acknowledge and agree that with regard to the processing of User Data, Bablr is a processor acting on behalf of Business User (whether itself a controller or a processor). For the avoidance of doubt, this DPA shall not apply to instances where Bablr is the controller (as defined by European Data Protection Laws).

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1.2. Purpose limitation. Bablr shall process User Data, as further described in Annex A (Details of Data Processing) of this DPA, only in accordance with Business User’s documented lawful instructions as set forth in this DPA, as necessary to comply with applicable law, or as otherwise agreed in writing (“Permitted Purposes”). The parties agree that the Agreement, including this DPA, along with the Business User’s configuration of or use of any settings, features, or options in the Solution (as the Business User may be able to modify from time to time) constitute the Business User’s complete and final instructions to Bablr in relation to the processing of Business User Data (including for the purposes of the SCCs), and processing outside the scope of these instructions (if any) shall require prior written agreement between the parties.

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1.3. Prohibited data. Business User will not provide (or cause to be provided) any Sensitive Data to Bablr for processing under the Agreement, and Bablr will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. For the avoidance of doubt, this DPA will not apply to Sensitive Data.

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1.4. Business User compliance. Business User represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Business User Data and any processing instructions it issues to Bablr; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for Bablr to process User Data for the purposes described in the Agreement. Business User shall have sole responsibility for the accuracy, quality, and legality of User Data and the means by which Business User acquired User Data. Without prejudice to the generality of the foregoing, Business User agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to the use of Albireo Solution.

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Lawfulness of Business User’s instructions. Business User will ensure that Bablr’s processing of the User Data in accordance with Business User’s instructions will not cause Bablr to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. Bablr shall promptly notify Business User in writing, unless prohibited from doing so under European Data Protection Laws, if it becomes aware or believes that any data processing instruction from Business User violates European Data Protection Laws. Where Business User acts as a processor on behalf of a third-party controller (or other intermediary to the ultimate controller), Business User warrants that its processing instructions as set out in the Agreement and this DPA, including its authorizations to Bablr for the appointment of Sub-processors in accordance with this DPA, have been authorized by the relevant controller. Business User shall serve as the sole point of contact for Bablr and Bablr need not interact directly with (including to provide notifications to or seek authorization from) any third-party controller other than through regular provision of the Service to the extent required under the Agreement. Business User shall be responsible for forwarding any notifications received under this DPA to the relevant controller, where appropriate.

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2. Sub-processing

2.1. Authorized Sub-processors. Business User agrees that Bablr may engage Sub-processors to process Business User Data on Business User’s behalf.

 

2.2. Sub-processor obligations. Bablr shall: (i) enter into a written agreement with each Sub-processor containing data protection obligations to the extent applicable to the nature of the service provided by such Sub-processor; Business User acknowledges and agrees that, where applicable, Bablr fulfils its obligations under Clause 9 of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses (as applicable) by complying with this Section 3 and that Bablr may be prevented from disclosing Sub-processor agreements to Business User due to confidentiality restrictions but Bablr shall, upon request, use reasonable efforts to provide Business User with all relevant information it reasonably can in connection with Sub-processor agreements.

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3. Security

3.1. Security Measures. Bablr shall implement and maintain appropriate technical and organizational security measures that are designed to protect User Data from Security Incidents and designed to preserve the security and confidentiality of User Data.

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3.2. Confidentiality of processing. Bablr shall ensure that any person who is authorized by Bablr to process User Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

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3.3. Updates to Security Measures. Business User is responsible for reviewing the information made available by Bablr relating to data security and making an independent determination as to whether the Service meets Business User’s requirements and legal obligations under Data Protection Laws. Business User acknowledges that the Security Measures are subject to technical progress and development and that Bablr may update or modify the Security Measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Service provided to Business User.

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3.4. Security Incident response. Upon becoming aware of a Security Incident, Bablr shall: (i) notify Business User without undue delay, and where feasible, within a reasonable time of it becoming aware; (ii) provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Business User; and (iii) promptly take reasonable steps to contain and investigate any Security Incident. Bablr’s notification of or response to a Security Incident under this Section shall not be construed as an acknowledgment by Bablr of any fault or liability with respect to the Security Incident.

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3.5. Business User responsibilities. Notwithstanding the above, Business User agrees that except as provided by this DPA, Business User is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Business User Data when in transit to and from the Service, and taking any appropriate steps to securely encrypt or backup any User Data uploaded to the Service.

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4. Security Reports and Audits

4.1. Audit rights. Bablr shall make available to Business User all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Business User in order to assess compliance with this DPA.

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5. International Transfers

5.1. Data centre locations. Business User acknowledges that Bablr may transfer and process Business User Data to and in the United Kingdom, European Union, India and anywhere else in the world where Bablr, its Affiliates or its Sub-processors maintain data processing operations. Bablr shall at all times ensure that such transfers are made in compliance with the requirements of Data Protection Laws and this DPA.

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5.2. Australian data. To the extent that Bablr is a recipient of Business User Data protected by the Australian Privacy Law, the parties acknowledge and agree that Bablr may transfer such Business User Data outside of Australia as permitted by the terms agreed upon by the parties and subject to Bablr complying with this DPA and the Australian Privacy Law.

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5.3. EEA Data Transfers. To the extent that Bablr is a recipient of Business User Data protected by GDPR in a country outside of EEA that is not recognized as providing an adequate level of protection for personal data (as described in applicable European Data Protection Laws), the parties agree to abide by and process such User Data in compliance with the SCCs, which shall be incorporated into and form an integral part of this DPA.

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5.4. UK Data Transfers. With respect to transfers to which the UK Data Protection Laws apply, the SCCs shall apply and shall be deemed amended as specified by the UK Addendum. The UK Addendum shall be deemed executed by the parties and incorporated into and form an integral part of this DPA. In addition: Tables 1 to 3 in Part 1 of the UK Addendum shall be deemed completed with the information set out in Annexes I and II of the relevant SCCs; and Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting "neither party".

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5.5. Swiss Data Transfers. With respect to transfers to which the Swiss DPA apply, the SCCs shall apply in accordance with Section 6.3 with the following modifications: (i) references to "Regulation (EU) 2016/679" shall be interpreted as references to the Swiss DPA; (ii) references to specific Articles of "Regulation (EU) 2016/679" shall be replaced with the equivalent article or section of the Swiss DPA; (iii) references to "EU", "Union" and "Member State law" shall be replaced with "Switzerland"; (iv) Clause 13(a) and Part C of Annex Il shall be deleted; (v) references to the "competent supervisory authority" and "competent courts" shall be replaced with "the Swiss Federal Data Protection and Information Commissioner" and "relevant courts in Switzerland"; (vi) Clause 17 shall be replaced to state "The Clauses are governed by the laws of Switzerland"; and (vii) Clause 18 shall be replaced to state "Any dispute arising from these Clauses shall be resolved by the applicable courts of Switzerland. The parties agree to submit themselves to the jurisdiction of such courts".

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5.6. Compliance with the SCCs. The parties agree that if Bablr cannot ensure compliance with the SCCs, it shall promptly inform Business User of its inability to comply. If Business User intends to suspend the transfer of European Data and/or terminate the affected parts of the Service, it shall first provide notice to Bablr and provide Bablr with a reasonable period of time to cure such non-compliance, during which time Bablr and Business User shall reasonably cooperate to agree what additional safeguards or measures, if any, may be reasonably required. Business User shall only be entitled to suspend the transfer of data and/or terminate the affected parts of the Service for non-compliance with the SCCs if Bablr has not or cannot cure the non-compliance within a reasonable period.

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5.7. Alternative transfer mechanism. To the extent Bablr adopts an alternative lawful data transfer mechanism for the transfer of European Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable European Data Protection Laws and extends to the countries to which European Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer European Data (within the meaning of applicable European Data Protection Laws), Bablr may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of European Data.

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6. Return or Deletion of Data

6.1. Deletion or return on termination. Upon termination or expiration of the service, Bablr shall delete all User Data (including copies) in its possession or control, except that this requirement shall not apply to the extent Bablr is required by applicable law to retain some or all of the User Data, in accordance with Albireo Solution ToS, except to the extent required by applicable law. The parties agree that the certification of deletion of Business User Data described in Clause 8.5 and 16(d) of the 2021 Controller-to-Processor Clauses and 2021 Processor-to-Processor Clauses (as applicable) shall be provided by Bablr to Business User only upon Business User’s written request.

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7. Data Subject Rights and Cooperation

7.1. Data subject requests. As part of the Service, Bablr provides Business User with a number of self-service features, that Business User may use to retrieve, correct, delete, or restrict the use of User Data, which Business User may use to assist it in connection with its (or its third-party controller’s) obligations under the Data Protection Laws with respect to responding to requests from data subjects via Business User’s account at no additional cost. In addition, Bablr shall, considering the nature of the processing, provide reasonable additional assistance to Business User to the extent possible to enable Business User (or its third-party controller) to comply with its data protection obligations with respect to data subject rights under Data Protection Laws. In the event that any such request is made to Bablr directly, Bablr shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact Business User) or legally required, without Business User’s prior authorization. If Bablr is required to respond to such a request, Bablr shall, where the Business User is identified or identifiable from the request, promptly notify Business User and provide Business User with a copy of the request unless Bablr is legally prohibited from doing so. For the avoidance of doubt, nothing in the Agreement (including this DPA) shall restrict or prevent Bablr from responding to any data subject or data protection authority requests in relation to personal data for which Bablr is a controller.

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7.2. Data protection impact assessment. To the extent required under applicable Data Protection Laws, Bablr shall (considering the nature of the processing and the information available to Bablr) provide all reasonably requested information regarding the Service to enable Business User to carry out data protection impact assessments or prior consultations with data protection authorities as required by Data Protection Laws or provide additional reasonable assistance (at Business User’s expense).

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8. Limitation of Liability

8.1. Each party’s and all of its Affiliates’ liability taken together in the aggregate arising out of or related to this DPA (including the SCCs) shall be subject to the exclusions and limitations of liability set forth in Albireo Solution ToS.

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8.2. Any claims made against Bablr or its Affiliates under or in connection with this DPA (including, where applicable, the SCCs) shall be brought solely by the Business User entity that is a party to this agreement.

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9. Relationship with the Agreement

9.1. This DPA shall remain in effect for as long as Bablr carries out User Data processing operations on behalf of Business User or until termination of Albireo Solution ToS.

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9.2. The parties agree that unless another agreement is signed in writing between the parties specifically superseding this DPA, this DPA shall apply to all data transactions between the Business User and Bablr.

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9.3. In the event of any conflict or inconsistency between this DPA and ToS, the provisions of the following documents (in order of precedence) shall prevail: (i) SCCs; then (ii) this Albireo Solution ToS; and then (iii) the DPA.

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9.4. Except for any changes made by this DPA, the Agreement remains unchanged and in full force and effect.

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9.5. No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

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9.6. This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

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Annex A – Details of Data Processing

(a) Categories of data subjects:

The categories of data subjects whose personal data is processed include (i) Third Party Users (As defined in Albireo Solution ToS) and (ii) Business Users.

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(b) Categories of personal data:

Business User may upload, submit, or otherwise provide certain personal data to the Service, the extent of which is typically determined and controlled by Business User in its sole discretion, and may include the following types of personal data:

• Identification and contact data (name, date of birth, general, occupation or other demographic information, address, title, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility).

 

(c) Sensitive data processed (if applicable):

Bablr does not want to, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Service.

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(d) Frequency of processing:

Continuous and as determined by Business User.

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(e) Purpose of the processing:

Bablr shall only process User Data for the Permitted Purposes, which shall include: (i) processing as necessary to provide the Service in accordance with Albireo Solution ToS; (ii) processing initiated by Business User in its use of the solution; and (iii) processing to comply with any other reasonable instructions provided by Business User (e.g., via email or support tickets) that are consistent with the terms of the Agreement.

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(f) Duration of processing and period for which personal data will be retained:

Bablr will process Business User Data as outlined in this DPA.