Current as of 24 October 2022
Data Processing Agreement
This Data Processing Addendum (“DPA”) forms part of the Aspect Terms and Conditions, or other agreement governing the use of Aspect’s service (“Agreement” and “Service”, respectively) entered by and between you (“you”, “your”, “Customer“), and Hume Technology AB (“Aspect”). This DPA sets out the terms that apply with regard to the Processing of Personal Data (as defined below) by Hu,e, on behalf of Customer, in the course of providing the Aspect Service to Customer under the Agreement.
All capitalized terms not defined herein will have the meaning set forth in the Agreement.
By using the Service, Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations, and (b) is permitted to use the Service pursuant to the Agreement between Customer and Aspect, but has not signed its own Order Form with Aspect and is not a “Customer” as defined under the Agreement.
1.3. “Authorized User” means any individual authorized or otherwise enabled by Customer to use the Service through Customer’s account.
1.4. “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.
1.5. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
1.6. “Customer Data” means what is defined in the Agreement as “Customer Data.”
1.7. “Data Protection Laws” All applicable laws and regulations relating to the processing of Personal Data including the EU Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC) and the EU’s General Data Protection Regulation (GDPR) (2016/679/EC), including all law and regulations implementing or made under them and any amendment or re-enactment of them. The terms “Controller”, “Personal Data”, “Process”, “Processor” and “Supervisory Authority” shall have the meanings given to them in the GDPR.
1.8. “Data Subject” means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.9. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
1.10. “Information Security Policy” means the security documentation applicable to the Service purchased by Customer, as updated from time to time, as made reasonably available to Customer by Aspect.
1.11. “Personal Data” or “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with a particular Data Subject or household, which is included in Customer Data Processed by Aspect on behalf of Customer under the Agreement.
1.12. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by Aspect on behalf of Customer under the Agreement.
1.13. “Personnel” means persons authorized by Aspect to Process Customer’s Personal Data.
1.14. “Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, blocking, erasure or destruction.
1.15. “Processor” means the entity which Processes Personal Data on behalf of the Controller.
1.16. “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws, which may include any of the following: (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; (c) financial, credit, genetic, biometric or health information; (d) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences; and/or (e) account passwords in unhashed form.
1.17. “Standard Contractual Clauses” means the standard contractual clauses of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
1.18. “Sub-Processor” means any third party service provider engaged by Aspect that Processes Personal Data under the instruction or supervision of Aspect.
1.19. “UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
2. DATA PROCESSING
2.1. Scope and Roles. This DPA applies when Personal Data is Processed by Aspect strictly on behalf of Customer, as part of Aspect’s provision of the Service. In this context and for the purposes of the GDPR or any similar Data Protection Laws, Customer is the data Controller and Aspect is the data Processor; and for the purposes of the CCPA (to the extent applicable), Customer is the Business and Aspect is the Service Provider.
2.2. Subject Matter, Duration, Nature and Purpose of Processing. Aspect Processes Customer’s Personal Data as part of providing Customer with the Service, pursuant to the specifications and for the duration under the Agreement.
2.3. Type of Personal Data and Categories of Data Subjects. Customer and Authorized Users determine the identity of the persons which are part of the conversations and content analyzed by the Service, and the type and nature of any Personal Data (if any) exchanged in such conversations or included in such content. Aspect has no control over the identity of the data subjects whose Personal Data is processed on behalf of Customer and over the types of Personal Data Processed. At Customer’s selection, the Service may also be used to capture voice identifiers relating to Authorized Users, for speaker identification and call cataloging purposes.
2.4. Customer’s Processing of Personal Data; Instructions. Customer shall, in its use of the Service, only submit or otherwise have Personal Data Processed in accordance with the requirements of Data Protection Laws. Aspect will only Process Personal Data on behalf of and in accordance with Customer’s reasonable instructions. Customer instructs Aspect to Process Personal Data for the following purposes: (i) Processing related to the Service in accordance with the Agreement; (ii) Processing to comply with other reasonable instructions provided by Customer where such instructions are consistent with the Agreement; (iii) rendering Personal Data fully and irrevocably anonymous and non-personal, in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; and (iv) Processing as required under any applicable laws to which Aspect is subject, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Aspect shall inform Customer of the legal requirement before Processing, unless prohibited under such law or requirement. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Without limitation, Customer will provide all necessary notices to relevant Data Subjects, including a description of the Service, and secure all necessary permissions and consents, or other applicable lawful grounds for Processing Personal Data pursuant to this DPA, and shall indemnify, defend and hold harmless any claim, damages or fine against Aspect arising from any failure to acquire or use the Personal Data with legal consent or legitimate business purpose or in violation of any data protection legal requirement. Aspect will inform Customer, if in Aspect’s opinion an instruction infringes any provision under any Data Protection Laws and will be under no obligation to follow such instruction, until the matter is resolved in good-faith between the parties.
To the extent that Aspect cannot comply with an instruction from Customer, (i) Aspect shall promptly inform Customer, providing relevant details of the problem, (ii) Aspect may, without any kind of liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend access to the Customer’s account, and (iii) if the parties do not agree on a resolution to the issue in question and the costs thereof, Customer may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing. Customer will have no further claims against Aspect (including, without limitation, requesting refunds for the Service) pursuant to the termination of the Agreement and the DPA as described in this paragraph.
2.5. CCPA Standard of Care; No Sale of Personal Information. Aspect acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that Aspect provides to Customer under the Agreement. Aspect shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer’s behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. Aspect certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder, without Customer’s prior written consent, nor taking any action that would cause any transfer of Personal Information to or from Aspect under the Agreement or this DPA to qualify as “selling” such Personal Information under the CCPA. For the avoidance of doubt, Aspect will not use, retain or disclose Personal Information for any purpose other than providing the Service.
2.6. Sensitive Data. The Parties agree that the Service is not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain Aspect’s explicit prior written consent and enter into any additional agreements as required by Aspect.
Taking into account the nature of the Processing, Aspect will reasonably assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the Data Subjects’ rights under the GDPR or other Data Protection Laws, to request access, rectification or deletion of Personal Data, to restrict or object to further processing of such data, to receive a portable copy thereof, or to request not to be subject to automated individual decision-making. Aspect will further reasonably assist Customer, upon Customer’s reasonable request, in ensuring compliance with Customer’s obligations in connection with the security of Processing, notification of a Personal Data Breach to supervisory authorities and affected Data Subjects, Customer’s data protection impact assessments and Customer’s prior consultation with supervisory authorities, insofar as it relates to Aspect’s Processing of Personal Data under this DPA, and to the extent Customer does not otherwise have access to the relevant information, and that such information is available to Aspect. Except for negligible costs, Customer will promptly reimburse Aspect with costs and expenses incurred by Aspect in connection with the provision of assistance to Customer under this DPA.
4. Aspect PERSONNEL
4.1. Limitation of Access. Aspect will ensure that Aspect’s access to Personal Data is limited to those Personnel who require such access to perform the Agreement.
4.2. Confidentiality. Aspect will impose appropriate contractual obligations upon its Personnel engaged in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection, and data security. Aspect will ensure that its Personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training in their responsibilities, and have executed written confidentiality agreements. Aspect will ensure that such confidentiality agreements survive the termination of the employment or engagement of its Personnel.
5.1. Aspect may engage Sub-Processors to Process Personal Data on behalf of Customer. Customer hereby provides Aspect with a general authorization to engage the Sub-Processors listed at https://www.getAspect.com/sub-processors.
5.2. Aspect may engage with a new Sub-Processor (“New Sub-Processor“) to Process Personal Data on Customer’s behalf.
6.1. Controls. Aspect will implement and maintain administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer’s Personal Data, pursuant to the Aspect Information Security Policy.
7**. PERSONAL DATA BREACH MANAGEMENT AND NOTIFICATION**
7.1. Aspect will maintain security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, will notify Customer without undue delay (as practicable under the circumstances, but no later than 48 hours) after becoming aware of a Personal Data Breach affecting Customer’s Personal Data being Processed hereunder by Aspect or any of Aspect’s Sub-Processors.
8**. AUDIT AND DEMONSTRATION OF COMPLIANCE**
8.1. Aspect will make available to Customer, pursuant to Customer’s reasonable written request, all information necessary for Customer to demonstrate compliance with the obligations laid down under Article 28 to the GDPR in relation to the Processing of Personal Data under this DPA by Aspect and its Sub-Processors. Such information shall only be used by Customer to assess compliance with the aforesaid obligations, and may not be disclosed to any third party without Aspect’s prior written approval. As soon as the purpose of such information is met, Customer will permanently dispose of all copies thereof.
9. RETURN OR DELETION OF PERSONAL DATA
Upon termination or expiration of the Agreement, Aspect shall (at Customer’s election) return or to the fullest extent technically feasible delete all Customer Data in its possession or control. This requirement shall not apply to the extent Aspect is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems (e.g., in the form of audit logs), which Customer Data Aspect shall securely isolate and protect from any further Processing, except to the extent required by applicable law.
10. DISPUTE RESOLUTION
The parties will attempt in good faith to resolve any dispute related to this DPA as a precondition to commencing legal proceedings, first by direct communications between the persons responsible for administering this DPA and next by negotiation between executives with authority to settle the controversy. Either party may give the other party a written notice of any dispute not resolved in the normal course of business. Within five business days after delivery of the notice, the receiving party will submit to the other party a written response. The notice and the response will include a statement of each party’s position and a summary of arguments supporting that position and the name and title of the executive who will represent that party. Within five business days after delivery of the disputing party’s notice, the executives of both parties will meet at a mutually acceptable time and place, including by phone, and thereafter as often as they reasonably deem necessary, to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
This DPA will commence and become legally binding on the earlier of (i) the date of its execution, (ii) the effective date of the Agreement to which it relates, or (iii) the initiation of Aspect’s Processing of Personal Data on behalf of Customer; and will continue until the Agreement expires or is terminated.
13. AUTHORIZED AFFILIATES
13.1. Contractual Relationship. The parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, in which case each Authorized Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that Customer Processes Personal Data on the behalf of such Authorized Affiliates, thus qualifying them as the “Controller”. All access to and use of the Service by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.
13.2. Communication. The Customer shall remain responsible for coordinating all communication with Aspect under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
16.1. In the event of any conflict or inconsistency between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.
16.2. In the event of any conflict between certain provisions of this DPA and any of its Schedules and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
Schedule 1 – Cross Border Transfers
PART 1 – EEA Transfers
The parties agree that the terms of the Standard Contractual Clauses are hereby incorporated by reference and shall apply to an EEA Transfer.
Module Two (Controller to Processor) of the Standard Contractual Clauses shall apply where the EEA Transfer is effectuated by Customer as the data controller of the Personal Data and COMPANY is the data processor of the Personal Data.
Clause 7 of the Standard Contractual Clauses (Docking Clause) shall not apply.
Option 2: GENERAL WRITTEN AUTHORISATION in Clause 9 of the Standard Contractual Clauses shall apply, and the method for appointing and time period for prior notice of Sub-processor changes shall be as set forth in Section 2 of the DPA.
In Clause 11 of the Standard Contractual Clauses, the optional language will not apply.
In Clause 17 of the Standard Contractual Clauses, Option 1 shall apply, and the Parties agree that the Standard Contractual Clauses shall be governed by the laws of the Republic of Ireland.
In Clause 18(b) of the Standard Contractual Clauses, disputes will be resolved before the courts of the Republic of Ireland.
Annex I.A of the Standard Contractual Clauses shall be completed as follows:
Data Exporter: Customer.
Contact details: As detailed in the Agreement.
Data Exporter Role: Module Two: Data controller.
Signature and Date: By entering into the Agreement and DPA, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Data Importer: Aspect.
Contact details: As detailed in the Agreement.
Data Importer Role: Module Two: Data processor.
Signature and Date: By entering into the Agreement and DPA, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
Annex I.B of the Standard Contractual Clauses shall be completed as follows:
The categories of personal data and data subjects are described in Sections 2.1, 2.2 and 2.3 of the DPA.
The Parties do not intend for Sensitive Data to be transferred.
The frequency of the transfer is a continuous basis for the duration of the Agreement.
The nature and purpose of the Processing is described in Sections 2.1, 2.2 and 2.3 of the DPA.
The period for which the Personal Data will be retained is for the duration of the Agreement, unless agreed otherwise in the Agreement and/or the DPA.
In relation to transfers to Sub-processors, the subject matter, nature, and duration of the processing is set forth in Section 5.2.1 of the DPA.
Annex I.C of the Standard Contractual Clauses shall be completed as follows:
The competent supervisory authority in accordance with Clause 13 is the supervisory authority in the Member State stipulated in Section 7 above.
The Security Documentation referred to in the DPA serves as Annex II of the Standard Contractual Clauses.
To the extent there is any conflict between the Standard Contractual Clauses and any other terms in this DPA or the Agreement, the provisions of the Standard Contractual Clauses will prevail.
PART 2 – UK Transfers
This Part 2 is effective from the same date as the Standard Contractual Clauses.
This Part 2 is intended to provide appropriate safeguards for the purposes of transfers of Personal Data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and with respect to data transfers from controllers to processors and/or processors to processors.
Where this Part 2 uses terms that are defined in the Standard Contractual Clauses, those terms shall have the same meaning as in the Standard Contractual Clauses. In addition, the following terms have the following meanings:
This Part 2 shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR.
This Part 2 shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, reenacted and/or replaced after this DPA has been entered into.
In the event of a conflict or inconsistency between this Part 2 and the provisions of the Standard Contractual Clauses or other related agreements between the Parties, existing at the time the DPA is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.
This Part 2 incorporates the Standard Contractual Clauses which are deemed to be amended to the extent necessary so they operate:
for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and
to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
The amendments required by Section 8 above, include (without limitation):
References to the “Clauses” means this Part 2 as it incorporates the Standard Contractual Clauses
Clause 6 Description of the transfer(s) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”
References to “Regulation (EU) 2016/679” or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws.
References to Regulation (EU) 2018/1725 are removed.
References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner;
Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
Clause 18 is replaced to state:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
The footnotes to the Clauses do not form part of this Part 2.
The Parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.
The Parties may amend this Part 2 provided it maintains the appropriate safeguards required by Art 46 UK GDPR for the relevant transfer by incorporating the Standard Contractual Clauses and making changes to them in accordance with Section 8 above.
The Parties may give force to this Part 2 (incorporating the Standard Contractual Clauses) in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in the Contractual Clauses.