Last updated: 6 September 2023
This Data Processing Addendum (or DPA) forms part of, and is subject to, the terms of the Agreement and details the requirements for the protection of Customer Personal Data where the GDPR applies to the collection and handling of any Personal Information under the Agreement.
Aid to understanding this DPA
This Background section, and the explanatory summaries at the start of each clause in the DPA, are for convenience only, and do not form part of the DPA or effect the interpretation of the DPA.
What are the Data Protection Laws?
The main Data Protection Laws referred to in this DPA include the UK Data Protection Act, which is the UK's implementation of the GDPR and the GDPR. These laws set out data protection principles and govern obligations of entities collecting, storing, processing, handling and otherwise using personal data.
Who is the Data Controller?
The Data Controller is the entity that determines the purposes and means of the processing of personal data. Under this DPA, as and between the Customer and Fusion, the Customer is the Data Controller of the Customer Personal Data.
Who is the Data Processor?
The Data Processor is an entity that processes personal data on behalf of a Data Controller. Under this DPA, as and between the Customer and Fusion, Fusion is the Data Processor. This is because where the Customer is using the Fusion Services, the Customer is also engaging Fusion as the Data Processor in respect of the Customer Personal Data.
What is this DPA and why?
Data Protection Laws require the agreement between a Data Controller and Data Processor to be made in writing, and to set out certain matters, including instructions for Processing, commitments to security and the rights and obligations of both parties. This is the purpose of this DPA.
Processing of Customer Personal Data and duration
- The parties agree that in the event of inconsistency, the terms of this Data Processing Addendum override the terms of the agreement.
- Nothing in this Data Processing Addendum reduces the Data Processor’s obligations under the agreement or permits the Data Processor to Process (or permit the Processing of) Customer Personal Data in a manner which is prohibited by the agreement or under applicable law.
- To the extent required by the GDPR, the Data Processor agrees to provide any written assurance the Customer requires (under the GDPR) that it is complying with the terms of this Data Processing Addendum.
- Definitions and Interpretation
- All capitalised terms that are not expressly defined in this Data Processing Addendum will have the meanings given to them in the Agreement. The following terms shall have the following meaning in this Data Processing Addendum.
Agreement means the agreement in place between the Customer and Fusion for the Product(s) and other related services.
Contracted Processor means the Data Processor or a Subprocessor.
Customer means the entity identified as the Customer in the Agreement.
Customer Personal Data means any Personal Data Processed by a Contracted Processor on behalf of the Customer pursuant to or in connection with the Agreement, including Personal Data that relates to the Customer’s clients.
Data Controller means the Customer.
Data Processor means Fusion.
Data Protection Laws means:
- The DPA;
- The 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; and
- To the extent applicable, the data protection or privacy laws of any other country./li>
DPA means the Data Protection Act 2018 (UK) as amended, updated, or replaced from time to time, and includes the UK GDPR as defined in section 3 of the Data Protection Act 2018 (UK).
EEA means the European Economic Area.
EU means the European Union.
Fusion means Fusion Software Development Pty Ltd (ACN 61 581 200).
GDPR means the General Data Protection Regulation.
Services means Fusion’s provision of the Products and other ancillary services under the Agreement.
Standard Contractual Clauses means, as applicable the EU C-to-P SCCs and/or the UK SCCs.
Subprocessor means any person appointed by or on behalf of the Data Processor to process Personal Data on behalf of the Customer in connection with the agreement or the Data Processing Addendum.
- A transfer of Customer Personal Data from Customer to a Contracted Processor; or
- An onward transfer of Customer Personal Data from a Contracted Processor to a Contracted 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).
UK means the United Kingdom of Great Britain and Northern Ireland.
UK SCCs the UK standard data protection clauses as issued by the UK Information Commissioner (ICO) under s119(A)(1) of the DPA, as amended, updated, or replaced from time to time.
- The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the relevant Data Protection Laws.
The concept of Processing is at the core of this DPA and refers to any operation performed on personal data (for example, collection, organisation, storage, use). As a Data Processor, Fusion cannot Process the Customer Personal Data other than as instructed by the Customer, and this is a restriction that is set by the Data Protection Laws. This clause sets the instructions.
Data Processor Personnel
- Data Processor shall:
- Comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
- Not Process Customer Personal Data other than on the documented instructions of the Customer, which for the purpose of this Data Process Agreement include the Customer’s instructions to Process Customer Personal Data to provide the Services.
- This Data Processing Agreement, and the Data Processor’s Processing of Customer Personal Data, will continue unless or until the Agreement expires or is terminated.
Personal data should only be accessed by the Data Processor’s staff and other personnel on a need to know basis, and the Data Processor must ensure that such persons are aware of their obligations in respect of accessing personal data.
- 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 Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know/access the relevant Customer Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with all applicable laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
A large part of GDPR compliance is ensuring that adequate security processes and procedures are in place to protect personal data. This clause details some of those processes and procedures.
- Considering 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, Data Processor shall in relation to Customer Personal Data implement appropriate technical and organisational 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.
- In assessing the appropriate level of security, Data Processor shall take account the risks that are presented by Processing, in particular from a Personal Data Breach.
Subprocessors refers to third parties that the Data Processor may engage to undertake Processing activities on its behalf (eg cloud storage providers and/or service providers of any functionalities that Fusion may integrate within its Services). Data Protection Laws permit Subprocessing, subject to certain requirements being met. This clause sets out such requirements.
Data Subject Rights
- Data Processor shall not appoint (or disclose any Customer Personal Data to) any Subprocessor unless required or authorised by the Customer.
- For the purposes of this Data Processing Agreement, the Customer agrees and authorises the appointment of Amazon Web Services, Inc. and Google, Inc. as subprocessors.
- The Data Processor will inform the Customer prior to the appointment of a new Subprocessor, to give the Customer an opportunity to object to the change, which the parties shall discuss in good faith.
- The Data Processor must ensure that it has a written agreement in place with each Subprocessor that imposes similar standards and obligations on the Subprocessor as those set out in this Data Processing Agreement in respect of the Processing of Customer Personal Data carried out by that Subprocessor.
The rights and the protection of Data Subjects, being the natural persons who are identified or identifiable by personal information, are at the heart of Data Protection Laws. This clause sets out that Fusion, as the Data Processor, may assist the Customer with requests from Data Subjects.
Personal Data Breach
- Considering the nature of the Processing, Data Processor shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by the Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- Data Processor shall:
- Promptly notify the Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
- Ensure that it does not respond to that request except on the documented instructions of the Customer or as required by applicable laws to which the Data Processor is subject, in which case Data Processor shall to the extent permitted by applicable laws inform the Customer of that legal requirement before the Contracted Processor responds to the request.
Data Protection Laws set out processes and procedures in respect of Personal Data Breaches. As the Data Processor we are obliged to notify you if we become aware of such breaches and cooperate and assist you in managing such breaches. This clause imposes this obligation on us.
Data Protection Impact Assessment (DPIA) and Prior Consultation
- Data Processor shall notify the Customer without undue delay upon Data Processor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing the Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
- Data Processor shall cooperate with the Customer and take reasonable commercial steps as are directed by the Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
DPIAs are a means of identifying and mitigating against any data protection related risks arising from new projects or new purposes or means of Processing. The obligation under Data Protection Laws falls on the Data Controller to assess such risks, and this clause sets out that we will help you do so.
Deletion or return of Customer Personal Data
- Data Processor shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data privacy authorities, which the Customer 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 Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Under Data Protection Laws, personal data may only be stored for as long as is necessary for the purposes for which it was Processed. This clause sets out that we must delete such personal data within a certain timeframe if such Services, or the Agreement, come to an end.
- Data Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Data (the Cessation Date), delete and procure the deletion of all copies of those Customer Personal Data.
- Data Processor shall provide written certification to the Customer that it has fully complied with this clause within 10 business days of the Cessation Date.
In some circumstances, the Data Controller may be required to audit the Data Processor for purposes under or in relation to certain obligations under Data Protection Laws. This clause permits such audit to take place.
- Data Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Data Processing Addendum, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of Customer Personal Data by the Contracted Processors.
- Information and audit rights of the Customer only arise under clause 11.1 to the extent that the agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
Data Protection Laws set out prescriptive requirements for moving personal data outside of the UK or the EEA. As we are based in Australia, personal data may move outside of the UK or the EEA to Australia. The Data Protection Laws have standard contractual clauses (SCCs) that apply to such transfer and that can be incorporated by reference. This clause explains that we may transfer data to Australia and that accordingly we will adopt the requirements of the SCCs based on the process set out in this clause.
- Data Processor may not transfer or authorise the transfer of Customer Personal Data to countries outside the UK, the EU and/or the EEA without the prior written consent of the Customer, and subject to the relevant provisions of this clause 12.
- For the purposes of the Agreement and this Data Processing Agreement, the Customer explicitly consents to the transfer of Customer Personal Data to Australia, the UK (for EU Customer Personal Data) and/or the EU/EEA (for UK Customer Personal Data).
- The parties agree that formation of the Agreement to which this Data Processing Agreement relates will be considered as signature to the applicable Standard Contractual Clauses.
- If Personal Data Processed under this Data Processing Agreement is transferred from a country within (respectively) the UK or EEA to (respective) a country outside the UK or EEA, the parties will ensure that the Personal Data is adequately protected by relying on the then current, applicable and approved Standard Contractual Clauses and the relevant Standard Contractual Clauses are deemed to be incorporated into, and form part of, this Data Processing Agreement, subject to the applicable adaptations set out below.
All Standard Contractual Clauses.
- If required by the laws or regulatory procedures of any jurisdiction, the parties will execute or re-execute the relevant Standard Contractual Clauses as separate documents setting out the proposed transfers of Personal Data in such manner as may be required.
- 11.6 In the event of inconsistencies between the provisions of the relevant Standard Contractual Clauses and this Data Processing Agreement or other agreements between the parties in relation to the Services, the relevant Standard Contractual Clauses will take precedence. The terms of this Data Processing Agreement will not vary the relevant Standard Contractual Clauses in any way.
- References to the GDPR are to be understood as references to either the GDPR or the DPA as the context requires and as applicable insofar as data transfers are subject to these laws.
- For the purposes of Table 2 of the UK SCCs (“Selected SCCs, Modules and Selected Clauses”), the EU C-to-P SCCs, as read together with the UK SCCs, will apply.
- For the purposes of Table 3 of the UK SCCs (“Appendix Information”) clause 6 and Attachment A to this Data Processing Agreement also apply.
- The UK SCCs will be governed by the laws of Great Britain. Any dispute arising from the UK SCCs in relation to all data transfers will be resolved by the courts of Great Britain.
EU C-to-P SCCs
- The docking clause 7 of the EU C-to-P SCCs will be included.
- The option in clause 11 EU C-to-P SCCs will be waived.
- For clauses 17 and 18 of the EU C-to-P SCCs, the EU C-to-P SCCs will be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they will be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The parties agree that this will be the law of Ireland. Any dispute arising from the EU C-to-P SCCs will be resolved by the courts of an EU Member State. The parties agree that those will be the courts of EU Member State in which the data exporter is established. 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.
- For the purposes of:
- Annex I of the Appendix to the EU C-to-P SCCs, the parties and processing details set out in Attachment A to this Data Processing Agreement will apply;
- Annex II of the of the Appendix to the EU C-to-P SCCs, the technical security measures set out in Attachment A to this Data Processing Agreement will apply; and
- Annex III of the of the Appendix to the EU C-to-P SCCs, the list of subprocessors set out in clause 6 will apply.
This clause simply deals with the operation of any dispute arising out of this Data Processing Agreement.
- This Data Processing Addendum is governed by the laws that govern the Agreement. Any dispute arising in connection with this Data Processing Addendum will be submitted to the non-exclusive jurisdiction of the courts that have jurisdiction in the Agreement.
Attachment A to Data Processing Agreement – parties and processing details and technical security measures
- Description of parties
- Data exporter(s): Data exporter is the Customer.
- Data importer(s): Data importer Fusion.
- Description of transfer
- Categories of data subjects whose personal data is transferred: clients and employees of the Customer.
- The personal data transferred concern the following categories of data: General personal data categories, such as names, contact details, addresses, telephone numbers and other identifying and contact information.
- The personal data transferred concern the following special categories of data: NIL.
- The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Continuous basis for the duration of this Data Processing Agreement.
- Nature of the processing: The personal data transferred will be subject to the following basic processing activities – generation of customer and sales leads, management of sales lifecycles and pipelines, customer and service management, business analytics, and other processing activities in connection with the Services.
- Purpose(s) of the data transfer and further processing: The purposes of Fusion providing the Services and on the documented instructions of Customer.
- The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: In accordance with clause 10 of this Data Processing Agreement.
- For transfers to subprocessors, also specify subject matter, nature and duration of the processing: As above.
- Description of competent supervisory authority
Identify the competent supervisory authorities: The supervisory authority of the EU Member State where the data exporter is established, or where the data exporter is established in the UK, then the ICO.
- Description of the technical and organisational security measures implemented by the data importer
The technical security measures described in the Agreement and the Data Processing Agreement.