WHEREAS

1. Your Company acts as a Data Controller.
2. Your Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
3. 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 the 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).
4. The Parties wish to lay down their rights and obligations.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation
   1. Unless otherwise defined herein, capitalised terms and expressions used in this Agreement shall have the following meaning:
      1. “Agreement” means this Data Processing Agreement and all Schedules;
      2. “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;
      3. “Contracted Processor” means a Subprocessor;
      4. “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
      5. “EEA” means the European Economic Area;
      6.  “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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
      7. “GDPR” means EU General Data Protection Regulation 2016/679;
      8. “Data Transfer” means:
         1. a transfer of Company Personal Data from Your 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);
      9. “Services” means the services provided by Processor to Your Company, further defined in Schedule One. 
      10. “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of Your Company in connection with the Agreement.
   2. 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 GDPR, and their cognate terms shall be construed accordingly.
2. Processing of Company Personal Data
   1. Processor shall:
      1. comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
      2. not Process Company Personal Data other than on the relevant Company’s documented instructions.
   2. Your Company instructs Processor to process Company Personal Data.
3. Processor Personnel
   1. Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Your Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with 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.
4. Security
   1. Taking into account 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, Processor shall in relation to Your 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.
   2. In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Subprocessing
   1. You acknowledge and agree that we may engage third party Subprocessors in connection with the provision of the Service.
   2. We have entered into (and will, for any new Subprocessor, enter into) written agreements with each Subprocessor containing data protection obligations which offer at least the same level of protection for Personal Data as set out in this Agreement and that meet the requirements of Article 28(3) of the GDPR, as applicable to the nature of the services provided by that Subprocessor.
   3. You may request copies of our written agreements with Subprocessors (which may be redacted to remove confidential information not relevant to this Addendum).
   4. A list of current Subprocessors for the Services is set out in Schedule 2. We may update the list of Subprocessors from time to time and, subject to clause 5.5, we will give at least 30 days’ written notice of any new Subprocessor.
   5. We may engage Subprocessors as needed to serve as an Emergency Replacement to maintain and support the Services. Emergency Replacement means a sudden replacement of a Subprocessor where a change is outside our reasonable control. In this case, we will inform you of the replacement Subprocessor as soon as reasonably practicable.
   6. If you object to any new Subprocessor, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided (in the case of a new Subprocessor notified under clause 5.4) your notice of termination is received by us before the effective date of our notice under clause 5.4 or (in the case of a new Subprocessor notified under clause 5.5) your notice of termination is received by us within 30 days of our notice of the new Subprocessor. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the new Subprocessor.
   7. We are liable for the acts and omissions of our Subprocessors to the same extent we would be liable if performing the services of each Subprocessor directly under the terms of this Agreement, except as otherwise set out in this Agreement. 
6. Data Subject Rights
   1. Taking into account the nature of the Processing, Processor shall assist Your Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
   2. Processor shall:
      1. promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
      2. ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
   1. Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow Your Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
   2. Processor shall co-operate with Your Company and take reasonable commercial steps as are 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 Processor shall provide reasonable assistance to Your Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, 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, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Company Personal Data
   1. Subject to this section 9 Processor shall promptly and in any event within 20 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.
   2. Processor shall provide email confirmation to Controller that it has fully complied with this section 9 within 20 business days of the Cessation Date.
10. Audit rights
    1. Subject to this section 10, Processor shall make available to Your Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Your Company or an auditor mandated by Your Company in relation to the Processing of Your Company Personal Data by the Contracted Processors.
    2. Information and audit rights of Your 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.
11. Data Transfer
    1. The Processor may transfer Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of Your Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
12. General Terms
    1. 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:
       (a) disclosure is required by law;
       (b) the relevant information is already in the public domain.
    2. Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. You shall be notified by email sent to the address related to Your use of the Service under the Principal Agreement. Processor shall be notified by email sent to the address: privacy@cradle.io 
13. Governing Law and Jurisdiction
    1. This Agreement is governed by the laws of New Zealand.
    2. Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the non-exclusive jurisdiction of the courts of New Zealand. 

Cradle provides a fully cloud-based business phone solution to Your Company that allows people on your team to communicate with your customers, suppliers, prospects and each other over a public switched telephone network or proprietary VoIP network. Cradle’s system is made up of client software for iOS, Android, macOS, Windows and Linux, proprietary server-side software, integrations with third-party tools, third-party services and customer support that rocks! All of this enables your team to make and take phone calls anywhere in the world where they have an internet connection. 

A list of subprocessors is available on request by emailing privacy@cradle.io