GrowSurf - Data Processing Agreement

This Data Processing Agreement ("Agreement") forms part of that certain Contract for Services, dated [INSERT DATE] ("Principal Agreement") between

_____________________

_____________________

_____________________

(the “Company”) and

GrowSurf, Inc.

(the “Data Processor”)

_____________________

_____________________

_____________________

(individually, a “Party” and collectively as the “Parties”)

WHEREAS

1. The Company acts as a Data Controller.
2. The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with Data Protection Laws (as defined below).
3. The Company wishes to contract for certain Services (as defined below) all upon and subject to the terms and conditions of this Agreement.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

1. Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

1. "Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a Party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

2. "Agreement" means this Data Processing Agreement and all Annexes;

3. “Business” has the meaning ascribed in the CCPA (as defined below);

4. "Company Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

5. “Consumer” has the meaning ascribed in the CCPA.

6. "Contracted Processor" means Data Processor or a Subprocessor acting for or on behalf of Data Processor;

7. “CCPA” means the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 to 1798.199), as amended from time to time, and any related regulations and guidance provided by the California Attorney General pertaining to same;

8. "Data Protection Laws" means EU Data Protection Laws, the CCPA, and, to the extent applicable, the data protection or privacy laws of any other country;

9. "Data Transfer" means:

1. a transfer of Company Personal Data from the Company to a Contracted Processor; or

2. an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor,

in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

10. "EEA" means the European Economic Area;

11. “EU” means the European Union;

12. "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

13. "GDPR" means EU General Data Protection Regulation 2016/679;

14. "Personal Data" means, to the extent such data is defined by Data Protection Laws, any data Processed by a Contracted Processor on behalf of pursuant to or in connection with this Agreement;

15. “Personal Information” has the meaning ascribed in the CCPA;

16. "Restricted Transfer" means:

3. a transfer of Personal Data from the Company to a Contracted Processor; or

4. an onward transfer of Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,

5. in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses;

17. "Services" means the services, Processing, data processing, and other activities to be supplied to, or carried out by or on behalf of Data Processor for the benefit of the Company, as further outlined herein.
18. “Standard Contractual Clauses” means the standard contractual clauses issued by the European Commission (from time-to-time) for the transfer of Personal Data from Data Controllers established inside the EEA to data processors established outside of the EEA.

19. "Subprocessor" means any person or entity (including any third party and any Affiliate of Data Processor, but excluding an employee of Data Processor) appointed by or on behalf of Data Processor to Process Personal Data.

2. The terms, "European Commission", "Controller", “Data Controller”, "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning ascribed to the corresponding terms in the Data Protection Laws.

2. Processing of Company Personal Data

3. The Company hereby authorizes Data Processor to perform the Services as more fully described in Annex 1, attached hereto and incorporated by reference, which describes the scope, purposes and manner by which Personal Data may be accessed or Processed by Data Processor. In connection therewith, the Company instructs Data Processor to, and it shall:

20. Process Company Personal Data;

21. comply with all applicable Data Protection Laws in the Processing of Company Personal Data;

22. not Process Company Personal Data other than as specifically requested by Company in this Agreement or by subsequent written instruction; and immediately inform Company if, in its opinion, an instruction of Company infringes Data Protection Law; and

23. transfer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with this Agreement

4. The Company represents and warrants to Data Processor, on an ongoing basis, that, for the purposes of Article 6 of the GDPR, there is, and will be throughout the term of the Agreement, a valid legal basis for the Processing by Data Processor of the Company’s Personal Data in accordance with this Agreement (including, any and all instructions issued by the Company from time to time in respect of such Processing).

5. Company Compliance With Data Processor Privacy Policies:

1. Data Processor is committed to complying with laws, including Data Protection Laws, for its user's Personal Data and Personal Information, and has adopted a Privacy Policy available at https://growsurf.com/privacy.  The Company shall use its best efforts  to cooperate with Data Processor in good faith in order for the Parties to comply with the Data Protection Laws and to comply with this Privacy Policy in all communications to Data Subject and use of their Data.

If Company is a resident in the EEA, the “data controller” of Company’s personal information is the Company. The Company has appointed ____[INSERT NAME]____ to be its representative in the EEA. The Company will notify all Data Users in EU jurisdictions that they can contact the Company directly regarding the processing of their information by ____COMPANY____, by email at ____[INSERT CONTACT EMAIL]____ or by post to: ____[INSERT ADDRESS]____.

2. To the extent that either of the Parties is a Business that collects Personal Information of a Consumer, the Parties shall cooperate in good faith and take all actions reasonably requested by either Party in order to comply with any and all obligations of either of the Parties under the CCPA.

3. Data Protection

6. Data Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know, as reasonably determined by Data Processor in order to perform its obligations under the Principal Agreement and in order to comply with Data Protection Laws and, in each case, ensuring that all such individuals are subject to confidentiality obligations that are at least as strict as those of the Partiers or a required by Data Protection Laws.

7. With respect to the Services performed under this Agreement, Data Processor will:

3. create and maintain a record of Processing activities;

4. Process Personal Data solely for those purposes required to deliver the Services;

5. not disclose Personal Data to any person other than as is necessary to perform the Services;

6. implement appropriate technical and organizational measures to prevent unauthorized or unlawful Processing of any Personal Data;

7. ensure that access, inspection, Processing, and provision of Personal Data shall take place only in accordance with a specific need-to-know purpose related to performance of the Services;

8. promptly notify the Company of (i) any request for disclosure of Personal Data by a Data Subject or a judicial or regulatory authority, unless otherwise prohibited, and assist the Company accordingly with such request, or (ii) any suspected accidental or unauthorized access to Personal Data, and to assist the Company in investigating and remediating such potential or actual Personal Data breach;

9. make available to Company all information necessary, as determined in Data Processor’s reasonable discretion, to demonstrate Data Processor’s compliance with Data Protection Laws;

10. disclose to Company the Subprocessors used in the performance of the Services; and

11. assist Company, subject to any reasonable compensation paid to Data Processor as may be agreed by the Parties, with Company’s obligations under Data Protection Laws.

4. Security

8. Taking into account industry standards, 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, Data Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR, or such higher standards as may be required by Data Protection Laws.

9. In assessing the appropriate level of security, Data Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

10. Company authorizes Data Processor to appoint (and permits each Subprocessor appointed in accordance with this Article 5 to appoint) Subprocessors in accordance with the obligations and restrictions outlined in this Agreement.

11. Data Processor may continue to use those Subprocessors already engaged by Data Processor as of the date of this Agreement, subject to Data Processor identifying all such Subprocessors and in each case, as soon as practicable, meeting the obligations set out in Article 5.4.

12. Data Processor shall provide the Company prior, written notice of the intent to engage any new Subprocessor for the Services, including full details of the Processing to be undertaken by the Subprocessor. The Company may object on reasonable grounds to any Subprocessor proposed by written notice to Data Processor within thirty (30) days following receipt by the Company of Data Processor’s written notice stating the basis of such objection. The Parties agree to make good faith efforts to address any reasonable objections of the Company to a proposed Subprocessor or to identify a different Subprocessor for provision of the Services.

13. With respect to each Subprocessor, Data Processor shall:

12. before the Subprocessor begins Processing Personal Data (or, where relevant, in accordance with Article 5.2), perform adequate due diligence, in Data Processor’s sole discretion, to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by this Agreement;

13. enter into a written agreement with Subprocessor, including terms which offer at least the same level of protection for Personal Data as those set out in this Agreement and meet the requirements of Article 28(3) of the GDPR or such stricter requirements as outlined by other Data Protection Laws; and

14. if the arrangement between Data Processor and Subprocessor involves a Restricted Transfer, Data Processor must ensure that, before the Subprocessor begins Processing Personal Data, the written contract between Data Processor and any Subcontractor contains Standard Contractual Clauses for the transfer of Personal Data personal data that are generally accepted in the Parties’ industry or have been approved by the EU.

6. Data Subject Rights

14. Taking into account the particular nature of the Processing required under this Agreement, Data Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company’s obligations hereunder in order to respond to requests to exercise Data Subject rights under the Data Protection Laws.

15. In furtherance thereof, Data Processor shall:

15. promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

16. ensure that it does not respond to that request except on the documented instructions of the Company or as required by Data Protection Laws to which Data Processor is subject, in which case Data Processor shall to the extent permitted by Data Protection Laws.

inform the Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

16. Data Processor shall notify Company without undue delay upon Data Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

17. Data Processor shall cooperate with the Company and take commercially reasonable steps as directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

18. Data Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and discussions with, or investigations by, any government or agency having authority to enforce any of the Data Protection Laws, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by the Contracted Processors.

9. Deletion or return of Company Personal Data

19. Subject to this section 9, Data Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.

20. Data Processor shall provide written certification to the Company that Data Processor has fully complied with this section 9 within 10 business days of the Cessation Date.

21. Notwithstanding sections 9.1 and 9.2, Data Processor and any Subprocessor may retain Company Personal Data as required by Data Protection Laws; provided that Data Processor and any applicable Subprocessor use commercially reasonable means to ensure the confidentiality of all such Company Personal Data.

10. Audit rights

22. Subject to the qualification set forth in section 10.2, Data Processor shall make available to the Company upon written request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

23. Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

24. In no event may the Company access Data Processor’s premises in connection with any audit.

25. The Company shall bear any and all third party costs incurred in connection with any inspection or audit and shall reimburse Data Processor for all costs incurred by Data Processor related thereto, including, without limitation, all reasonable fees and salaries paid to any agents or employees of Data Processor while assisting with any such inspection or audit.

11. Data Transfer

26. Data Processor may not transfer or authorize the transfer of Personal Data to countries outside the EEA without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. If Personal Data processed under this Agreement is transferred from a country within the EEA to a country outside the EEA, the Parties shall ensure that such Personal Data are adequately protected in accordance with industry standards. To achieve this, the Parties shall, unless agreed otherwise, rely on  Standard Contractual Clauses.

12. Restricted Transfers

27. Subject to the qualification set forth in section 12.2, to the extent that any Processing by either Data Processor or any Subprocessor of Company Personal Data involves a Restricted Transfer, the Parties agree that Company (as “data exporter”), and Data Processor or any Subprocessor, as applicable, (as “data importer”), shall be deemed to have been entered into the Standard Contractual Clauses with immediate effect upon the commencement of the relevant Restricted Transfer and the associated Processing.

28. Section 12.1 shall not apply to a Restricted Transfer unless its effect is to allow the relevant Restricted Transfer and the associated Processing to take place without breach of applicable Data Protection Laws.

13. No Special Categories of Personal Data

29. The Company warrants and represents that, other than as specifically set forth in this Agreement or pursuant to a subsequent written agreement of the Parties, during the term of this Agreement, the Company shall not, and shall ensure that none of its agents and employees, cause Data Processor or any Subprocessor to Process any special categories of Personal Data referred to in Article 9 of the GDPR.

30. The Company will indemnify, defend, and hold harmless Data Processor and its employees, members, officers, directors, and agents from and against any and all liabilities, losses, damages, costs, including costs of defense or settlement, fines and other costs or expenses (including legal costs and reasonable attorneys’ fees) arising from or relating to any breach by the Company of section 13.1.

14. Indemnification

31. The Company will indemnify and hold harmless Data Processor and its employees, members, officers, directors, and agents from and against any claims, suits, actions, demands and proceedings including, without limitation, all liabilities, losses, damages, costs of defense or settlement, fines and other costs and expenses (including legal costs and reasonable attorneys’ fees) arising from or relating to any breach by the Company of this Agreement, unless such claims arise from Data Processor’s willful misconduct in connection with the performance of the Services.

32. Data Processor will indemnify and hold harmless the Company and its employees, members, officers, directors, and agents from and against any claims, suits, actions, demands and proceedings including, without limitation, all liabilities, losses, damages, costs of defense or settlement, fines and other cost and expenses (including legal costs and reasonable attorneys’ fees) arising from or relating to any breach by Data Processor of this Agreement unless such claims arise from the Company’s willful or misconduct or gross negligence in connection with this Agreement.

15. General Terms

33. Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:

17. disclosure is required by law;
18. the relevant information is already in the public domain;

34. Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.

35. Governing Law and Jurisdiction.

19. This Agreement is governed by the laws of the State of Illinois, United States of America; and

20. Any dispute arising in connection with this Agreement must be submitted to the exclusive jurisdiction of  the state and federal courts located in Cook County, in the State of Illinois, United States of America; provided, however, that prior to any Party initiating any lawsuit such Party shall notify the other Party in writing the nature of such dispute and shall attempt in good faith to resolve such dispute with the other Party through extra-judicial negotiations; provided, further, that if Parties do not agree to resolve any such dispute within 60 days after notice then either of the Parties may file a lawsuit.

36. Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.  

37. Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.  Counterparts may be delivered by facsimile, electronic mail (including any electronic signature complying with the U.S. Federal E-SIGN Act of 2000, or by PDF) or other reasonable transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

38. Interpretation.  This Agreement is the result of negotiations between and has been reviewed by each of the Parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the Parties hereto, and no ambiguity shall be construed in favor of or against any one of the Parties hereto. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. Where this Agreement states that a party “will” or “shall” perform in some manner or otherwise act or omit to act, it means that such party is legally obligated to do so in accordance with this Agreement. The captions, titles, and headings included in this Agreement are for convenience only and do not affect this Agreement’s construction or interpretation.

21. Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

IN WITNESS WHEREOF, this Agreement is entered into with effect from the date first set out below.

Customer Company

Signature                 Name:                 Title:                 Date Signed:                  

GrowSurf, Inc., Processor Company

Signature                 Name:

Title:

Date Signed                  

ANNEX 1: DETAILS OF PROCESSING OF PERSONAL DATA

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

Details about the subject matter, nature, and duration of the Processing of Personal Data and the type of users whose Personal Data GrowSurf Processes are described in GrowSurf’s Privacy Policy located at https://growsurf.com/privacy , the terms of which are hereby incorporated into this Annex 1 by reference.

The Subprocessors that GrowSurf currently utilizes can be found here:  https://growsurf.com/gdpr