Famly Data Processing Agreement
Datum der Inkraftsetzung:
Famly ApS, Købmagergade 19, 2tv., 1150 Copenhagen, Denmark
(each a “Party” and collectively the “Parties”)
have concluded this Data Processing Agreement regarding the Processor’s processing of personal data on behalf of the Customer.
This DPA is effective as of the date of the Agreement.
“Agreement” means the main agreement (terms and conditions and Famly Offer) entered into between the Customer and Famly as amended from time to time in accordance with its terms;
“Application Log” means the log used for storing access to Customer Data;
“Applicable Data Protection Laws” means EEA Data Protection Laws where the Customer shall comply with EEA Data Protection Laws as the Controller, or alternatively it means UK Data Protection Laws where the Customer shall comply with UK Data Protection Laws as the Controller;
“Authorised Sub-Processors” means the Sub-Processors set out in clause 6.2 as may be amended from time to time;
“Customer Data” means the Personal Data (as defined in the Applicable Data Protection Laws) regarding individuals related to the Customer, processed under this DPA;
“Customer Point of Contact” has the meaning given in Clause 16.3;
“Data Breach” has the meaning given in Clause 11.1;
“Data Centres” means the data centres used for hosting and storing of Customer Data on the Famly Platform;
“Data Subject Request” has the meaning given in Clause 10.1;
“DPA” means this Data Processing Agreement, including any schedules attached or referred to and including any future written amendments and additions;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to 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/EU;
"EEA” means the European Economic Area, and the countries which are party to the European Economic Area Treaty;
“EEA Data Protection Laws” means all applicable laws and regulations relating to privacy and/or processing of Personal Data, including but not limited to the GDPR (as amended from time to time);
“Services” means the Famly Platform services described and provided under the Agreement and in accordance with this Data Processing Agreement;
“Sub-Processor” has the meaning given in Clause 6.1;
“UK Data Protection Laws” means all applicable privacy and data protection laws relating to the processing of Personal Data and the privacy of electronic communications including the UK GDPR, Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“UK GDPR” means the GDPR as amended and incorporated into UK law under the European Union (Withdrawal) Act 2018;
“UK” means the United Kingdom;
“Transfer Mechanism” means the Standard Contractual Clauses approved by the European Commission Decision of 4 June 2021 (processor to processor) as amended from time to time, the International Data Transfer Agreement (“IDTA”) issued by the Information Commissioner’s Office under Section 119A of the Data Protection Act 2018 (effective from 21 March 2022), and/or the International Data Transfer Addendum (“Addendum”) issued by the Information Commissioner’s Office under Section 119A of the Data Protection Act 2018 (effective from 21 March 2022).
The terms “Controller”, “Processor”, “Processing”, “Data Subject”, “Personal Data”, “Personal Data Breach” and “Supervisory Authority” shall have the same meaning as in the Applicable Data Protection Laws. All capitalized terms not otherwise defined herein shall have the meaning set out in the Agreement. Any reference to writing or written includes email.
1.1. The Parties have entered into the Agreement, where the Customer has engaged Famly to provide the Services. This Data Processing Agreement (“DPA”) is incorporated by reference into the Agreement.
1.2. For the purposes of providing the Services under the Agreement, Famly will process Customer Data throughout the Term of this DPA. This DPA applies to any and all activities associated with the Agreement, in whose scope Famly’s employees or agents process the Customer Data on behalf of the Customer as set out in clause 3.
2. Roles and Responsibilities
2.1. The parties agree that the Customer is the Controller of the Customer Data and Famly is the Processor of the Customer Data, except where Famly acts as a Controller processing Customer Data in accordance with clause 2.3.
2.2. The Customer as Controller instructs Famly to perform the processing activities detailed in this DPA. The Customer will, subsequently, be entitled to, in writing or in a machine-readable format (in text form), modify, amend or replace any individual instructions by issuing such instructions to the point of contact designated by Famly. Instructions not foreseen in or covered by this DPA must be treated as requests for changes to the DPA. The Customer must, without undue delay, confirm in writing or in text form any instruction issued orally.
2.3. Famly may process some Customer Data for its own legitimate business purposes, as an independent Controller, solely when the processing is strictly necessary and proportionate, for one of the following purposes:
a. Providing access to the Platform (usernames and passwords of Authorised Users processed);
b. Invoicing, managing the Customer relationship and corresponding with the Customer (name, email address, phone number, title of Admin User and Staff User processed);
c. Monitoring, preventing and detecting misuse or fraudulent activity on the Platform;
d. Analysing, developing and improving the Platform and services for the benefit of both the Customer and Famly, and collecting benchmarking data to provide insight into the usage of the Platform (data will be aggregated and pseudonymised, or anonymised where possible).
3. Scope and Specification of Processing
The subject matter and nature of processing of Customer Data by Famly is the performance of the Services pursuant to the Agreement and the purposes set forth in this DPA. The Customer and/or its Authorised Users upload the Customer Data to the Platform, and the types of Customer Data processed depend on the Customer use of the Services. The purpose of processing, the types of Customer Data and categories of Data Subjects that may be processed under this DPA is further specified in the table below:
4. Famly’s Obligations
4.1. Compliance with documented instructions. Except where expressly permitted by the Applicable Data Protection Laws or as otherwise required by law, Famly will process Customer Data as Processor only insofar as it is absolutely necessary for the purpose of the performance of the Agreement, and solely in accordance with the Customer’s instructions in this DPA and the Applicable Data Protection Laws.
4.2. Objection to instructions. If Famly believes that an instruction violates the Applicable Data Protection Laws, Famly will notify the Customer of such belief without undue delay. Famly is entitled to suspend performance on such instruction until the Customer confirms or modifies such instruction.
4.3. Technical and organisational measures. Famly is responsible for implementing technical and organisational measures to ensure the adequate protection of the Customer Data, which measures must fulfil the requirements of the Applicable Data Protection Laws and ensure ongoing security, confidentiality, integrity, availability and resilience of processing systems and Services. Such measures are described in Annex 1 of this DPA. Famly reserves the right to modify the measures and safeguards implemented, provided that the level of security is not less protective than initially agreed upon. In the event of considerable changes to the measures, Famly shall notify the Customer of the changes.
Famly warrants that the company fulfils its obligations under Applicable Data Protection Laws to implement a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
4.4. Confidentiality. Famly will keep the Customer Data confidential. This obligation persists without time limitation and will survive the termination or expiration of the Agreement and this DPA. Famly warrants that the Customer Data is only disclosed to persons authorised to process the Customer Data on a need-to-know basis (including employees). Famly warrants that all employees involved in processing of the Customer Data and other such persons as may be involved in processing within Famly’s scope of responsibility are prohibited from processing Customer Data outside the scope of the Customer instructions. Furthermore, Famly warrants that any person entitled to process the Customer Data has undertaken a commitment to confidentiality or is subject to an appropriate statutory obligation to confidentiality.
4.5. Deletion, correction or return of Customer Data. Famly must correct or erase Customer Data if so instructed by the Customer and where covered by the scope of the instructions as being permissible. Where an erasure request relating to Customer Data, consistent with Applicable Data Protection Laws or a corresponding restriction of processing is impossible, Famly will, based on the Customer’s instructions, and unless agreed upon differently in the Agreement, destroy or otherwise put out of use if so instructed, in compliance with Applicable Data Protection Laws, all Customer Data or return the same to the Customer.
4.6. Defence support. Where a Data Subject asserts any claims against the Customer in accordance with Article 82 of the GDPR or Article 82 of the UK GDPR (depending on what legislation the Customer must comply with), Famly will provide all reasonable assistance to the Customer in defending against such claims.
5. The Customer’s Obligations
5.2. Technical and organisational measures. The Customer is familiar with the technical and organisational measures set out in Annex 1, and it shall be the Customer’s responsibility that such measures ensure a level of security appropriate to the risk.
5.3. Defence support. Clause 4.6 above will apply, mutatis mutandis, to claims asserted by Data Subjects against Famly in accordance with Article 82 of the GDPR or Article 82 of the UK GDPR (depending on what legislation the Customer must comply with).
6.1. The Customer acknowledges that Famly uses subcontractors that act as Sub-Processors on behalf of the Customer (“Sub-Processor”).
6.2. The Customer agrees that the following Sub-Processors are authorised for the purpose of the processing of the Customer Data under this DPA:
6.3. Famly will, prior to the use of new Sub-Processor or a replacement of Sub-Processor, inform the Customer Point of Contact thereof with at least thirty (30) days’ prior written notice. The Customer is entitled to object in writing within ten (10) days after receipt of the notice from Famly, provided that such objection is based on reasonable grounds relating to data protection. Famly will evaluate the concerns and discuss possible solutions with the Customer. If these solutions are not reasonably possible in Famly’s discretion and the Customer continues to not approve the change (such approval may not be unreasonably withheld), the Customer may terminate the Agreement by giving fourteen (14) days’ written notice after having received Famly’s aforementioned decision. If the Customer does not terminate the Agreement within this timeframe, the Customer is deemed to have accepted the respective Sub-Processor. The Customer will receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated services. No other claims of the Customer against Famly or of Famly against the Customer may be based on such termination.
6.4. The Customer accepts that an exchange of a Sub-Processor may be required in cases where the reason for the change is outside of Famly’s reasonable control (so-called emergency replacement). Famly will notify the Customer of such change. If the Customer reasonably objects to the use of this Sub-Processor, the Customer may exercise its right to terminate the Agreement as described in the section above.
6.5. Where Famly commissions Sub-Processors, Famly is responsible for ensuring that Famly’s obligations on data protection resulting from the Agreement and this DPA are, to the extent applicable to the nature of the services provided by such Sub-Processor, valid and binding upon subcontracting. Famly will enter into written agreement and will restrict the Sub-Processor (and any new Sub-Processors) access to Customer Data only to what is necessary to provide or maintain the Services in accordance with the Agreement and this DPA.
7. Location of Customer Data and Transfer to Third Countries
7.1. The location(s) of the Customer Data is set out in clause 6.2 above.
7.2. Subject to Authorised Sub-processors in clause 6.2, Famly will not transfer the Customer Data outside the EEA or the UK without following the notification and objection process set out in clause 6.3.
7.3. Famly may not transfer Customer Data outside the EEA or the UK unless adequate protection of the Customer Data in the receiving country is secured. In the absence of an adequacy decision pursuant to Applicable Data Protection Laws, adequate protection in the receiving country (“third country”) shall be secured following the undertaking by Famly of a transfer risk assessment/transfer impact assessment (under UK / EU law as applicable to the Customer), through the implementation, and negotiation if applicable, of an agreement incorporating the appropriate Transfer Mechanism. If the Transfer Mechanism is insufficient to safeguard the transferred Customer Data, supplementary measure will be implemented to ensure the Customer Data is protected to the same standard as required under Applicable Data Protection Laws.
8. Customer Data Retention
8.1. Customer Data on the Famly Platform is retained until 60 days following the termination of the Agreement or until deletion is specifically requested by the Customer, or unless otherwise mentioned in clause 8.2.
8.2. Customer Data processed by the following Authorised Sub-Processor, is retained as set out below:
a. Intercom Inc.: Contact details of Customer employee is retained for 360 days as of the last interaction with Famly support team or if the Customer employee is not an active Customer employee for 30 days. Support ticket/message are retained for 360 days as of the date it was received by Famly.
b. Rsync.net Inc.: Customer Data backups is retained for 30 days from the date of each backup.
c. Google Cloud EMEA Limited: texts, which may contain Customer Data, sent to translation are held briefly in-memory in order to perform the translation and deliver the results. The translation is then retained for maximum 30 days on Famly server at AWS.
9. Term, Termination and Return or Deletion of Customer Data
9.1. This DPA and processing will continue in force until 60 days after the termination of the Agreement, except where this DPA stipulates obligations beyond the term of the Agreement.
9.2. Within 60 days following the termination of the Agreement, Famly shall, upon the Customer’s instructions, return all Customer Data to the Customer or delete the same, unless required otherwise by the Applicable Data Protection Laws. The Customer Data shall be irreversibly deleted and cannot be retrieved and provided to the Customer after such 60 days. In specific cases designated by the Customer, Customer Data will be stored. The associated remuneration and protective measures will be agreed upon separately, unless already agreed upon in the Agreement.
10. Data Subject Request
10.1. Where a Data Subject asserts claims for rectification, erasure, objection or access (“Data Subject Request”) against Famly, and where Famly is able to correlate the Data Subject to the Customer, based on the information provided by the Data Subject, Famly will refer such Data Subject to contact the Customer directly.
10.2. Famly will, based upon the Customer’s instructions, support the Customer to the extent reasonably possible in fulfilling a Data Subject Request, where the Customer cannot do so without Famly’s assistance. Famly will not be liable in cases where the Customer fails to respond to the Data Subject’s request in total, correctly, or in a timely manner.
11. Data Breaches
11.1. Famly will notify the Customer without undue delay, and in any event within 48 hours of becoming aware of any unauthorised or unlawful processing, alteration, loss, destruction or disclosure of, or damage or access to the Customer Data within Famly’s scope of responsibility, on any Sub-Processor that may be processing Customer Data on its behalf (“Data Breach”). Famly will implement the measures necessary for securing Customer Data and for mitigating potential negative consequences for the Data Subject. Famly will coordinate such efforts with the Customer without undue delay.
11.2. Famly will support the Customer, to the extent reasonably possible and only where the Customer cannot do so without Famly’s assistance, in communicating Data Breaches to the affected Data Subjects and notifying Data Breaches to the applicable Supervisory Authority (provided that this support does not result in any breach of Famly’s confidentiality obligations towards third parties).
12. Data Protection Impact Assessment and Consultation with Supervisory Authorities
To the extent that the required information is available to Famly, and the Customer does not otherwise have access to the required information, Famly will, upon written request, provide reasonable assistance to the Customer with any data protection impact assessment, and prior consultations with applicable Supervisory Authorities or the extent required under Applicable Data Protection Laws.
13.1. Famly will on an annual basis undergo an independent external audit of information security and measures pursuant to this DPA. Famly will document Famly’s compliance with the technical and organisational measures agreed upon in this DPA by appropriate measures.
13.2. Upon the Customer written request, Famly will provide the Customer with a summary of independent external audit report with sufficient information to enable the Customer to reasonably verify that Famly’s compliance with its obligations under this DPA, including that Famly has implemented the technical and organisational security measures described in Annex 1. The documentations are Famly’s confidential information and must be treated as such.
13.3. The Customer agrees to exercise its audit right by instructing Famly to share the audit report summary as described in clause 13.2 of this DPA. If the Customer reasonably concludes that an onsite audit is necessary to monitor the compliance with the technical and organisational measures in an individual case or compliance with this DPA, the Customer has the right to carry out respective onsite inspections in individual cases or to have them carried out by an auditor (that is no competitor of Famly) provided that the Customer informs Famly of this with at least 30 days notice and that such audits and inspections will be conducted (i) during regular business hours, and (ii) without disproportionately interfering with Famly’ business operations, (iii) upon prior reasonable notice and further consultation with Famly, (iv) all subject to (if not covered already by the Agreement) the execution of a confidentiality undertaking, in particular to protect the confidentiality of the technical and organisational measures and safeguards implemented.
13.4. In case of an onsite audit the Customer will bear its own expenses and compensate Famly the cost for its internal resources required to conduct the onsite audit (based on time and material according to the then current price list). If the audit reveals that Famly has breached its obligations under the Agreement or this DPA, Famly will promptly remedy the breach at its own cost and refund any payments made by the Customer towards the cost of Famly’s internal resources related to the Customer onsite audit.
14. Limitations of Liability
14.1. Famly is only liable for data protection losses, costs and expenses incurred as a result of i) Famly not complying with its obligations under this DPA; ii) Famly not complying with its processor obligations under the Applicable Data Protection Laws; or iii) Famly’s Authorised Sub-Processor not complying with its data protection obligations (whether imposed under contract to Famly or by Applicable Data Protection Laws).
14.2. Each Party’s total aggregate liability arising out of or related to this DPA shall be subject to the exclusions and limitations of liability set forth in section 13 of the Agreement, unless otherwise agreed.
14.3. Subject to clause 14.1 and 14.2, each party (the “Indemnifying Party”) will indemnify the other Party (the “Indemnified Party”) against all claims and proceedings and all liability, loss, costs and expenses incurred by the Indemnified Party as a result of any claim made or brought by a Data Subject or other legal person in respect of any loss, damage or distress caused to them, or any fine imposed by a Supervisory Authority, as a result of any breach of the Applicable Data Protection Laws by the Indemnifying Party, its employees or agents, provided that the Indemnified Party gives to the Indemnifying Party prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend or settle it.
15. Obligations to Inform, Amendments & Data Protection Officer
15.1. Where the Customer Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while in Famly’s control, Famly will notify the Customer of such action without undue delay and follow the Customer’s reasonable instructions to preserve the confidentiality of the Customer Data. Famly will, without undue delay, notify to all pertinent parties in such action, that any Customer Data affected thereby is in the Customer’s sole property and area of responsibility, that Customer Data is at the Customer’s sole disposition, and that the Customer is the responsible body in the sense of the Applicable Data Protection Laws.
15.2. Section 19 of the Agreement regarding Famly‘s right to amend the terms of the Agreement applies to changes to this DPA as this DPA forms part of the Agreement. For the avoidance of doubt, this does not apply to notifications of new Sub-Processors under clause 6.3.
15.3. Famly has appointed a Data Protection Officer, who is responsible for matters relating to privacy and data protection. This Data Protection Officer can be reached at the following address:
Attn. Data Protection Officer
Købmagergade 19, 2. tv.
1150 Copenhagen K
16. Point of Contact
16.1. The Parties must notify each other of a point of contact for any issues related to data protection arising out of or in connection with the Agreement and this DPA.
16.2. For any such matters, the Customer can reach out to the Famly Security & Privacy Team at firstname.lastname@example.org.
16.3. The Customer will inform Famly of its point of contact (“Customer Point of Contact”). Such contact shall be the main point of contact when Famly is assisting with Data Subject Requests, informing of Data Breaches, and informing the Customer of new Sub-Processors or amendments to this DPA.
17. Entire Agreement
Except as amended by this DPA, the Agreement will remain in full force and effect. In case of any conflict, the Applicable Data Protection Laws of this DPA shall take precedence over the regulations of the DPA. Where individual regulations of this DPA are invalid or unenforceable, the validity and enforceability of the other regulations of this DPA shall not be affected.
18. Governing Law & Dispute Resolution
Section 23 of the Agreement (Governing Law and Dispute Resolution) shall apply to this DPA.
Famly has in place certain technical and organisational security measures to ensure compliance with the Applicable Data Protection Laws. Those measures are set in place to prevent improper destruction, alteration, disclosure, access, and other improper form of processing of Customer Data. The measures form part of this Annex 1 and are available here.