THIS DATA PROCESSING AGREEMENT IS A LEGAL AGREEMENT BETWEEN SPURTASTIC TECHNOLOGIES PRIVATE LIMITED, A COMPANY INCORPORATED IN INDIA WITH ITS REGISTERED OFFICE AT 75, Ground Floor, A-1, New Delhi, South Delhi, Delhi 110068, India (“Spur”, “WE”, “OUR”, “US”) AND YOU (the “CUSTOMER”, “YOU”). THIS DPA SUPPLEMENTS OUR TERMS OF SERVICE WHICH YOU OPT INTO WHEN SIGNING UP FOR SERVICES PROVIDED BY Spur. THIS AGREEMENT TAKES EFFECT (OR BE DEEMED TO HAVE COME INTO EFFECT) BASED ON THE DAY YOU SIGNED UP FOR OUR SERVICES. YOU CAN OPT OUT ANYTIME BY CANCELLING YOUR Spur.AI ACCOUNT. NOW THEREFORE THIS DATA PROCESSING AGREEMENT WITNESSETH AS UNDER.
This DPA, including the EU SCCs and the UK Addendum incorporated by reference in it, is deemed executed by both parties when the Customer accepts the Terms of Service Agreement, and no separate signature is required for it to take effect. Customers who need a countersigned copy for their records may request one at support@spurnow.com.
The Processor has agreed to provide the Services to the Controller in accordance with the terms of the Terms of Service Agreement. In providing the Services, the Processor shall process Customer Data on behalf of the Controller. Customer Data may include Personal Data. The Processor will process and protect such Personal Data in accordance with the terms of this DPA.
In providing the Services to the Controller pursuant to the terms of the Terms of Service Agreement, the Processor shall process Personal Data only to the extent necessary to provide the Services in accordance with both the terms of the Terms of Service Agreement and the Controller’s instructions documented in the Terms of Service Agreement and this DPA. Exhibit A describes the subject matter, duration, nature and purpose of the processing, the types of Personal Data and the categories of Data Subjects.
Where the DPDP Act applies, the Controller acts as the Data Fiduciary and the Processor acts as the Data Processor, and references in this DPA to the Controller and the Processor shall be read accordingly.
The Processor acts as an independent controller only for (i) account data, meaning the names, contact details and billing information of individuals the Controller authorises to access its Spur account; and (ii) usage data, meaning service logs, activity records and other data used to operate, secure and maintain the performance of the Services. Account data and usage data do not include Customer Data, such as conversation content, end-user contact information or interaction metadata, which the Processor processes only on the Controller’s behalf under this DPA. The Processor processes account data and usage data to manage its relationship with the Controller, to carry out its business operations such as accounting, audit and tax, to detect and prevent fraud, security incidents and misuse of the Services, to comply with legal obligations, and to provide, maintain and improve the reliability of the Services, in each case in accordance with its Privacy Policy.
The Processor confirms that it shall process Personal Data on behalf of the Controller and shall take steps to ensure that any natural person acting under the authority of the Processor who has access to Personal Data does not process the Personal Data except on instructions from the ControllerThe Processor shall promptly inform the Controller, if in the Processor’s opinion, any of the instructions regarding the processing of Personal Data provided by the Controller, breach any applicable data protection laws.
The Processor shall ensure that all employees, agents, officers, and contractors involved in the handling of Personal Data:(i) are aware of the confidential nature of the Personal Data and are contractually bound to keep the Personal Data confidential;
(ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
The Processor shall implement appropriate technical and organizational procedures to protect Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
The Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(i) the pseudonymisation and encryption of Personal Data;
(ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
(iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are 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.
The technical and organizational measures detailed in Exhibit B shall be at all times adhered to as a minimum security standard. The Controller accepts and agrees that the technical and organizational measures are subject to development and review and that the Processor may use alternative suitable measures to those detailed in Exhibit B provided that such updates and modifications do not result in the degradation of the overall security of the Services.
Personal Data shall be transferred across borders only in accordance with the International Data Transfers section of this DPA.
Taking into account the nature of the processing and the information available to the Processor, the Processor shall assist the Controller by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfillment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights and the Controller’s compliance with the Controller’s data protection obligations in respect of the processing of Personal Data.
The Controller represents and warrants that it shall comply with the terms of the Terms of Service Agreement, this DPA and all applicable data protection laws.
The Controller represents and warrants that it has obtained any and all necessary permissions and authorizations necessary to permit the Processor, its Subsidiaries and Sub-Processors, to execute their rights or perform their obligations under this DPA.The Controller is responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Personal Data under this DPA and the Terms of Service Agreement.
All Subsidiaries of the Controller who use the Services shall comply with the obligations of the Controller set out in this DPA.
The Controller may require correction, deletion, blocking and/or making available the Personal Data during or after the termination of the Agreement. The Processor will process the request to the extent it is lawful, and will reasonably fulfill such request in accordance with its standard operating procedures to the extent possible.
The Controller acknowledges and agrees that some instructions from the Controller, including destruction or return of data from the Processor, may result in additional fees. In such case, the Processor will notify the Controller of such fees in advance unless otherwise agreed.
The Processor is established in India and processes Personal Data in the locations listed in Appendix 1. The Controller authorises the Processor and its Sub-processors to transfer Personal Data to those locations, subject to this section.
EU SCCs. To the extent the Controller’s transfer of Personal Data to the Processor is a Restricted Transfer subject to the GDPR, the EU SCCs are incorporated into this DPA by reference and apply as follows: (i) Module Two (controller to processor) applies where the Controller is a controller, and Module Three (processor to processor) applies where the Controller is itself a processor acting on behalf of a third-party controller; (ii) Module One (controller to controller) applies to account data and usage data that the Processor processes as an independent controller under the section titled “Processor’s Role as a Controller”; (iii) in Clause 7, the optional docking clause does not apply; (iv) in Clause 9, Option 2 (general written authorisation) applies, and the time period for prior notice of changes to Sub-processors is the period set out in the Sub-Processors section of this DPA; (v) in Clause 11, the optional language does not apply; (vi) in Clause 13, the competent supervisory authority is the supervisory authority of the EU Member State in which the Controller is established or, where the Controller is not established in the EU but falls within Article 3(2) of the GDPR, the supervisory authority of the Member State in which its representative under Article 27(1) of the GDPR is established, and, where no representative is required, the Irish Data Protection Commission; (vii) in Clause 17, Option 1 applies and the EU SCCs are governed by the laws of Ireland; (viii) in Clause 18(b), disputes are resolved before the courts of Ireland; and (ix) Annex I of the EU SCCs is completed with the information in Exhibit A, Annex II with the information in Exhibit B, and Annex III with the list in Appendix 1.
UK Addendum. To the extent the transfer is a Restricted Transfer subject to UK Data Protection Law, the EU SCCs apply as amended by the UK Addendum, which is incorporated into this DPA by reference and completed as set out in Exhibit C.
Switzerland. To the extent the transfer is a Restricted Transfer subject to the FADP, the EU SCCs apply with the following changes: (i) references to the GDPR are read as references to the FADP to the extent the transfer is subject to the FADP; (ii) the Swiss Federal Data Protection and Information Commissioner is the competent supervisory authority for such transfers; (iii) references to “Member State” are read to include Switzerland, so that Data Subjects habitually resident in Switzerland may enforce their rights in Switzerland; and (iv) the EU SCCs remain governed by the laws of Ireland, unless the FADP requires otherwise.
Other countries. Where Data Protection Law of any other country requires a transfer mechanism for a transfer of Personal Data to the Processor, the parties agree that the EU SCCs, adapted as necessary to refer to that law, serve as that mechanism to the extent permitted by that law.
Onward transfers. Where a Sub-processor processes Personal Data in a country that is not recognised as providing an adequate level of protection, the Processor shall ensure that the transfer is subject to appropriate safeguards under Data Protection Law, such as the EU SCCs (Module Three), the EU-U.S. Data Privacy Framework and its UK and Swiss extensions where the Sub-processor is certified under them, or Binding Corporate Rules.
Precedence. If there is any conflict between this DPA and the EU SCCs or the UK Addendum, the EU SCCs or the UK Addendum (as applicable) prevail to the extent of the conflict.
The Controller acknowledges and agrees that: (i) Subsidiaries of the Processor may be used as Sub-processors; and (ii) the Processor and its Subsidiaries respectively may engage Sub-processors in connection with the provision of the Services.All Sub-processors who process Personal Data in the provision of the Services to the Controller shall comply with the obligations of the Processor similar to those set out in this DPA.
Where Sub-processors are located outside of the EEA, the United Kingdom or Switzerland, the Processor shall ensure that transfers to them comply with the onward transfer requirements in the International Data Transfers section of this DPA.
The Processor shall make available to the Controller the current list of Sub-processors which shall include the identities of Sub-processors and their country of location. During the term of this DPA, the Processor shall provide the Controller with at least 10 days prior notification, via email (or in-application notice), of any changes to the list of Sub-processor(s) who may process Personal Data before authorising any new or replacement Sub-processor(s) to process Personal Data in connection with the provision of the Services.
The current list of Sub-processors is mentioned in Appendix 1
If the Controller objects to a new or replacement Sub-processor the Controller may terminate the Terms of Service Agreement with respect to those Services which cannot be provided by the Processor without the use of the new or replacement Sub-processor. The Processor will refund the Controller any prepaid fees covering the remainder of the Term of the Service Agreement following the effective date of termination with respect to such terminated Services.
The limitations on liability set out in the Terms of Service Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
The parties agree that the Processor shall be liable for any breaches of this DPA(data processing agreement) caused by the acts and omissions or negligence of its Sub-processors to the same extent the Processor would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Terms of Service Agreement.
The parties agree that the Controller shall be liable for any breaches of this DPA(data processing agreement) caused by the acts and omissions or negligence of its Subsidiaries as if such acts, omissions or negligence had been committed by the Controller itself.
The Controller shall not be entitled to recover more than once in respect of the same claim.
The Processor shall make available to the Controller all information reasonably necessary to demonstrate compliance with its processing obligations and allow for and contribute to audits and inspections.Any audit conducted under this DPA (data processing agreement)shall consist of an examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions similar to those set out in the Agreement. In the event that provision of the same is not deemed sufficient in the reasonable opinion of the Controller, the Controller may at its own expense conduct a more extensive audit which will be: (i) limited in scope to matters specific to the Controller and agreed in advance with the Processor; (ii) carried out during Indian business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iii) conducted in a way which does not interfere with the Processor’s day-to-day business. The Processor may charge a fee (based on its reasonable time and costs) for assisting with any audit. The Processor will provide the Controller with further details of any applicable fee, and the basis of its calculation, in advance of any such audit.
This clause shall not modify or limit the rights of audit of the Controller, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.
The Controller will enable the Processor to delete Personal Data using the functionality provided by the Service. For certain deletions, a recovery feature is offered by the Processor to enable recovery from accidental deletions for up to 30 days. This may be overridden by the Processor. After any recovery period, the Processor will permanently delete the Personal Data from the live systems.
On termination, the Controller has the option to request the return or deletion of Personal Data. This request must be made within 14 business days of termination. The Processor will make the data available for download by the Controller in a machine-readable format. Thereafter the Processor will permanently delete the Personal Data from the live systems in any event.
Following permanent deletion from the live systems, partial data resides on the Processor’s archival systems for a period of up to 365 days. If requested by the Controller, the Processor may be able to assist with the recovery of partial data from these archives during this period. A fee will be charged for this service.
The Processor shall notify the Controller without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access to any Personal Data (“Data Breach”).
The Processor will take all commercially reasonable measures to secure the Personal Data, to limit the effects of any Data Breach and to assist the Controller in meeting the Controller’s obligations under applicable law.
The Processor’s notification of, or response to, a Data Breach under this section will not be construed as an acknowledgment by the Processor of any fault or liability with respect to the Data Breach.
The Processor will not assess the content of the Controller’s data in order to identify information subject to any specific Controller data breach. The Controller is solely responsible for complying with data breach notification laws applicable to the Controller and fulfilling any third party notification obligations related to any Data Breach(es).
In the event that the Processor receives a request from a Data Subject in relation to Personal Data, the Processor will refer the Data Subject to the Controller unless otherwise prohibited by law. The Controller shall reimburse the Processor for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request or assisting the Controller in complying with its duties. In the event that the Processor is legally required to respond to the Data Subject, the Controller will fully cooperate with the Processor as applicable.
The Processor will notify the Controller promptly of any request or complaint regarding the processing of Personal Data, which adversely impacts the Controller unless such notification is not permitted under applicable law or relevant court order.
The Processor may make copies of and/or retain Personal Data in order to comply with its legal or regulatory requirement including, but not limited to, retention requirements.
The parties acknowledge that it is the duty of the Controller to notify the Processor within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect the contractual duties of the Processor. The Processor shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA or to the technical and organizational measures to maintain compliance. If the parties agree that amendments are required, but the Processor is unable to accommodate the necessary changes, the Controller may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with a supervisory data protection authority in the performance of their respective obligations under this DPA(data processing agreement).
The parties agree that the Processor will be entitled to charge the Controller additional fees to reimburse the Processor for its staff time, costs and expenses in assisting the Controller, when the Controller requests the Processor to provide assistance pursuant to this DPA (data processing agreement). In such cases, the Processor will notify the Controller of its fees for providing assistance, in advance.
The term of this DPA shall coincide with the commencement of the Terms of Service Agreement and this DPA(data processing agreement) shall terminate automatically together with termination or expiry of the Terms of Service Agreement.
This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
Except as otherwise required by the EU SCCs or the UK Addendum, this DPA (data processing agreement) shall be governed by the laws of India, and the courts of India shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA (data processing agreement).
This Appendix lists the current Sub-processors of Spur
This Exhibit also completes Annex I of the EU SCCs.
Data exporter: the Customer, as identified in its Spur account or in the signature block below. Role: controller (or processor, where the Customer acts on behalf of a third-party controller). Activities relevant to the transfer: use of the Services under the Terms of Service Agreement.
Data importer: Spurtastic Technologies Private Limited (Spur), 75, Ground Floor, A-1, New Delhi, South Delhi, Delhi 110068, India. Contact: support@spurnow.com. Role: processor (or sub-processor), and independent controller for account data and usage data. Activities relevant to the transfer: provision of the Services under the Terms of Service Agreement.
This Exhibit also completes Annex II of the EU SCCs. The Processor maintains the following measures, which may be updated under the Processor Obligations section of this DPA provided the overall security of the Services is not degraded.
Where the UK Addendum applies under the International Data Transfers section of this DPA, it is completed as follows:
Part 2 of the UK Addendum (the Mandatory Clauses of the Approved Addendum, being the template Addendum B1.0 issued by the UK Information Commissioner and laid before Parliament in accordance with section 119A of the Data Protection Act 2018 on 2 February 2022, as revised under Section 18 of those Mandatory Clauses) applies. The UK Addendum is governed by the laws of England and Wales, and disputes arising from it are resolved by the courts of England and Wales.
This DPA takes effect without signature, as set out above. Where the parties sign a copy for their records, they do so in the spaces below.