KOALAFY ASSESSMENTS DATA PROCESSING AGREEMENT
This Data Processing Agreement (the “Agreement”) governs the Processing of personal data of Your customers that You upload or otherwise provide Koalafy Assessments.
This Agreement is incorporated into the Koalafy Assessments User Terms and Conditions, Privacy Policy, and GDPR Policy (collectively, “Koalafy Assessments Terms”) and is binding on You. In the event of any conflict or inconsistency between any of the Koalafy Assessments Terms, the provisions of the following documents (in order of precedence) shall prevail: (a) this Agreement; (b) the GDPR Policy; (c) the Koalafy Assessments User Terms and Conditions; and (d) the Privacy Policy.
1. DEFINITIONS
A. “Koalafy Assessments” is a trademark of Inspired Communications LLC, and also refers to proprietary Inspired Communications LLC software used to create Internet sales funnels. Koalafy Assessments as used herein also refers to Inspired Communications LLC.
B. “Data Protection Requirements” means collectively the GDPR, Local Data Protection Laws, any subordinate legislation and regulation implementing the GDPR, and all Privacy Laws.
C. “Data Subject” means a person from whom You collect Personal Data.
D. “Inspired Communications” means Inspired Communications LLC, the owner of the Koalafy Assessments and other trademarks. In this Agreement, references to “Inspired Communications” as a Party means and refers to Inspired Communications LLC, and Inspired Communications LLC’s owner(s), parent company(ies), affiliate entities, and employees, and assigns. Inspired Communications LLC is the data processor under this Agreement.
E. “GDPR” means the General Data Protection Regulation promulgated by the European Union for the protection of individuals with regard to the Processing of personal data and on the free movement of such data.
F. “Parties” mean Inspired Communications and You. Inspired Communications and You are each a “Party.”
G. “Personal Data” means Personal Data (i) that You upload or otherwise provide Koalafy Assessments in connection with Your use of Koalafy Assessments’ services; and (ii) for which You are a data controller as defined by the GDPR; and (iii) that satisfies one of the following: (a) can be used to identify, contact or locate a specific individual, (b) can be combined with other information that can be used to identify, contact or locate a specific individual, or (c) is defined as “personal data” or “personal information” by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual.
H. “Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
I. “Privacy Laws” means all applicable laws, regulations, and other legal requirements relating to (a) privacy, data security, consumer protection, marketing, promotion, and text messaging, email, and other communications; and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal, and other Processing of any Personal Data.
J. “Process” and its cognates mean any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
K. “Subprocessor” means any entity which provides Processing services to Koalafy Assessments in furtherance of Koalafy Assessments’ Processing on behalf of You.
L. “Supervisory Authority” means an independent public authority which is established by a European Union member state pursuant to the GDPR.
M. “User” refers to a person who has created a Koalafy Assessments Account. “User Account” refers to a User’s Koalafy Assessments Account.
N. “You” and “Your” means the Koalafy Assessments User – You are Data Controller.
2. NATURE OF DATA PROCESSING
Each Party agrees to Process Personal Data received under the Agreement only for the purposes set forth in the Agreement. For the avoidance of doubt, the purposes of Personal Data Processing and the categories of Data Subjects subject to this Agreement are described in Schedule A to this Agreement.
3. COMPLIANCE WITH LAWS
The Parties shall each comply with their respective obligations under all applicable Data Protection Requirements.
4. YOUR OBLIGATIONS
You agree to:
4.1 Provide instructions to Koalafy Assessments and determine the purposes and general means of Koalafy Assessments’ Processing of Personal Data in accordance with the Agreement; and
4.2 Comply with protection, security and other obligations with respect to Personal Data prescribed by Data Protection Requirements for data controllers by: (a) establishing and maintaining a procedure for the exercise of the rights of the individuals whose Personal Data are Processed on Your behalf; (b) Processing only data that has been lawfully and validly collected and ensuring that such data will be relevant and proportionate to the respective uses; and (c) ensuring compliance with the provisions of this Agreement by Your personnel or by any third-party accessing or using Personal Data on Your behalf.
5. KOALAFY ASSESSMENTS’ OBLIGATIONS
5.1 Processing Requirements. Koalafy Assessments will:
a. Process Personal Data (i) only for the purpose of providing, supporting and improving Koalafy Assessments’ services (including to provide insights and other reporting), using appropriate technical and organizational security measures; and (ii) in compliance with instructions received from You. Koalafy Assessments will not use or Process Personal Data for any other purpose. Koalafy Assessments will promptly inform You in writing if it cannot comply with its requirements under this Agreement, in which case You may terminate the Agreement or take any other reasonable action, including suspending of data Processing operations;
b. Inform You promptly if, in Koalafy Assessments’ opinion, an instruction from You violates applicable Data Protection Requirements;
c. Follow Your instructions regarding Personal Data (including with regard to the provision of notice and exercise of choice) You have stored with Koalafy Assessments;
d. Take commercially reasonable steps to ensure that (i) persons employed by it and (ii) other persons engaged to perform on Koalafy Assessments’ behalf comply with the terms of this Agreement;
e. Ensure that its employees, authorized agents and any Subprocessors are required to comply with and acknowledge and respect the confidentiality of Personal Data, including after the end of their respective employment, contract or assignment;
f. If it intends to engage Subprocessors to help it satisfy its obligations in accordance with this Agreement or to delegate all or Part of the Processing activities to such Subprocessors, (i) obtain the prior written consent of You to such subcontracting, such consent to not be unreasonably withheld; (ii) remain liable to You for the Subprocessors’ acts and omissions with regard to data protection where such Subprocessors act on Koalafy Assessments’ instructions; and (iii) enter into contractual arrangements with such Subprocessors binding them to provide the same level of data protection and information security to that provided for herein;
g. Upon request, provide You with a summary of Koalafy Assessments’ privacy and security policies; and
h. Inform You if Koalafy Assessments undertakes an independent security review.
i. Not transfer personal data to a country other than the United States or to an international organization, unless required to do so by EU law. In any instance in which Koalafy Assessments is required to transfer personal data to any other country, or to an international organization, Koalafy Assessments will first inform you, unless Koalafy Assessments is prohibited by law from so informing You.
5.2 Notice to You. Koalafy Assessments will inform You if Koalafy Assessments becomes aware of:
a. Any non-compliance by Koalafy Assessments or its employees with this Agreement or the Data Protection Requirements relating to the protection of Personal Data Processed under this Agreement;
b. Any legally binding request for disclosure of Personal Data by a law enforcement authority, unless Koalafy Assessments is otherwise forbidden by law to inform You, for example to preserve the confidentiality of an investigation by law enforcement authorities;
c. Any notice, inquiry or investigation by a Supervisory Authority with respect to Personal Data; or
d. Any complaint or request (in particular, requests for access to, rectification or blocking of Personal Data) received directly from Data Subjects of Yours. Koalafy Assessments will not respond to any such request without Your prior written authorization.
5.3 Assistance to You. Koalafy Assessments will provide reasonable assistance to You regarding:
a. Any requests from Your Data Subjects in respect to access to or the rectification, erasure, restriction, portability, blocking or deletion of Personal Data that Koalafy Assessments Processes for You. In the event that a Data Subject sends such a request directly to Koalafy Assessments, Koalafy Assessments will promptly send such request to You;
b. The investigation of Personal Data Breaches and the notification to the Supervisory Authority and Your Data Subjects regarding such Personal Data Breaches; and
c. Where appropriate, the preparation of data protection impact assessments and, where necessary, carrying out consultations with any Supervisory Authority.
5.4 Required Processing. If Koalafy Assessments is required by Data Protection Requirements to Process any Personal Data for a reason other than providing the services described in the Agreement, Koalafy Assessments will inform You of this requirement in advance of any Processing, unless Koalafy Assessments is legally prohibited from informing You of such Processing (e.g., as a result of secrecy requirements that may exist under applicable EU member state laws).
5.5 Security. Koalafy Assessments will:
a. Maintain appropriate organizational and technical security measures (including with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption of Personal Data while in transit and at rest) to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Personal Data;
b. Be responsible for the sufficiency of the security, privacy, and confidentiality safeguards of all Koalafy Assessments personnel with respect to Personal Data and liable for any failure by such Koalafy Assessments personnel to meet the terms of this Agreement;
c. Take reasonable steps to confirm that all Koalafy Assessments personnel are protecting the security, privacy and confidentiality of Personal Data consistent with the requirements of this Agreement; and
d. Notify You of any Personal Data Breach by Koalafy Assessments, its Subprocessors, or any other third-parties acting on Koalafy Assessments’ behalf without undue delay and in any event within 48 hours of becoming aware of a Personal Data Breach.
6. AUDIT, CERTIFICATION
6.1 Supervisory Authority Audit. If a Supervisory Authority requires an audit of the data Processing facilities from which Koalafy Assessments Processes Personal Data in order to ascertain or monitor Your compliance with Data Protection Requirements, Koalafy Assessments will cooperate with such audit. You are responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Koalafy Assessments expends for any such audit, in addition to the rates for services performed by Koalafy Assessments.
6.2 Audits. Koalafy Assessments must, upon Your request (not to exceed one request per calendar year) by email to gdpr@Koalafy.me, certify compliance with this Agreement in writing. If Koalafy Assessments’ assurance does not provide, in Your reasonable judgment, sufficient information to confirm Koalafy Assessments’ compliance with the terms of this Agreement, then You or an accredited third-party audit firm agreed to by both You and Koalafy Assessments may audit Koalafy Assessments’ compliance with the terms of this Agreement during regular business hours, with reasonable advance notice to Koalafy Assessments and subject to reasonable confidentiality procedures. You will be responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Koalafy Assessments expends for any such audit, in addition to the rates for services performed by Koalafy Assessments. Before the commencement of any such audit, You and Koalafy Assessments shall mutually agree upon the scope, timing, and duration of the audit. You shall promptly notify Koalafy Assessments with information regarding any non-compliance discovered during the course of an audit. You may not audit Koalafy Assessments more than once annually.
7. DATA RETURN AND DELETION
The Parties agree that on the termination of the data Processing services or upon Your reasonable request, Koalafy Assessments shall, and shall cause any Subprocessors to, at the choice of You, return all Personal Data and copies of such data to You or securely destroy them and demonstrate to Your reasonable satisfaction that Koalafy Assessments has taken such measures, unless Data Protection Requirements prevent Koalafy Assessments from returning or destroying all or part of the Personal Data disclosed. In such case, Koalafy Assessments agrees to preserve the confidentiality of the Personal Data retained by it and that it will only actively Process such Personal Data after such date in order to comply with applicable laws.
8. THIRD-PARTY DATA PROCESSORS
You acknowledge that in the provision of some services, Koalafy Assessments, on receipt of instructions from You, may transfer Personal Data to and otherwise interact with third-party data Processors. You agree that if and to the extent such transfers occur, You are responsible for entering into separate contractual arrangements with such third-party data Processors binding them to comply with obligations in accordance with Data Protection Requirements. For avoidance of doubt, such third-party data Processors are not Subprocessors.
9. TERM
This Agreement shall remain in effect as long as Koalafy Assessments carries out Personal Data Processing operations on behalf of You or until the termination of the Koalafy Assessments Contract (and all Personal Data has been returned or deleted in accordance with this Agreement).
10. GOVERNING LAW, JURISDICTION, VENUE, ATTORNEYS’ FEES
Notwithstanding anything in the Agreement to the contrary, this Agreement shall be governed by the laws of the United States of America, and any action or proceeding related to this Agreement (including those arising from non contractual disputes or claims) will be brought in Virginia, USA. In the event of any litigation between the Parties that in any way relates to this Agreement, each Party shall bear its own costs and attorneys’ fees, regardless of which Party, if either of them, is deemed the prevailing Party.