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KADA Data Processing Agreement

Owned by Dean Nguyen
Oct 25, 2024
8 min read

Effective Date:  16/05/2022  

Updated 25/04/2024

  

About this Data Processing Agreement 

By indicating your acceptance of KADA’s Software as a Service Agreement (“Agreement”) or accessing or using any KADA offerings, if you are processing personal data (as defined herein) you are accepting the terms of this data processing agreement ("DPA") and this DPA shall be binding on both Parties to the order form (As defined in the agreement). 

Please read these terms carefully as it governs your processing of personal data when using the K Platform licensed via the order form signed by Parties.  

For the purposes of this DPA, “Data Processor”, "KADA", "we", "our" and/or "us" means KADA Services Pty Limited, an Australian Company. The term “Company” shall refers to the customer contracting entity that signed the order form. 

Whereas 

  1. The Company acts as a Data Controller 

  2. The Company wishes to subcontract certain Services, which imply the processing of personal data, to KADA 

  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 Concil o 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 

Without prejudice to the rights of the Data Subjects, this DPA shall not benefit or create an right or cause of action on behalf of a third party (including a third-party Data Controller) 

This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement.  

 

Definitions 

Unless otherwise states or unless the context otherwise requires, each capitalisd term will have the meaning set out below. Terms used but not otherwise defined in this clause shall have the meanings ascribed to them in the Data Protection Laws.  

  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 Customer 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 a transfer of Company Personal Data from the Company to a Contracted Processor; or 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 the Company provides.  

  10. "Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreementt 

  11. 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 

 

Processing of Company Personal Data 

The 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.  

  3. The Company instructs Processor to process Company Personal Data. 

 

Processor Personnel 

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the 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 

 

Security 

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 the 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. 

 

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 

 

Subprocessing 

Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company. 

 

Data Subject Rights 

Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws. 

 

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 

 

Personal Data Breach  

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 the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws. 

 

Processor shall co-operate with the 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 

 

Data Protection Impact Assessment and Prior Consultation  

Processor shall provide reasonable assistance to the 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 

 

Deletion or return of Company Personal Data  

Subject to this section 13 Processor shall promptly and in any event within 10 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. 

 

Processor shall provide written certification to Company that it has fully complied with this section 10 within 10 business days of the Cessation Date. 

 

Audit Rights  

Subject to this section 14, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors. 

 

Information and audit rights of the Company only arise under section 14.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law 

 

Data Transfer 

The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the 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. 

 

Data Processor will only host Customer Personal Data in the region(s) offered by the Data Processer and selected or configured by the Customer via the Software (the “Hosting Region”). Customer is solely responsible for the regions from which its Users access the Customer Personal Data, for any transfer or sharing of Customer Personal Data by Customers or its Users and for any subsequent designation of other Hosting Regions. Once customer has selected a Hosting Region, the Data Processor will not process Customer Personal Data from outside the Hosting Region except as reasonably necessary to provide the Services and to deliver the Purposes envisaged by this DPA, or as necessary to comply with the applicable laws or binding order of a government body.  

 

Relationship with Agreement 

Parties agree and acknowledge that this DPA replaces and supersedes any existing data processing addendums, attachments, exhibits or standard contractual clauses that the parties may have entered into previously in connection with the Services. The Data Processor may update this DPA from time to time at this link or a successor website designated by the Data Processor provided however that no such update shall materially diminish the privacy or security of Customer Personal Data.  

 

Except as provided by the DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict in connection with the Processing of Customer Personal Data. Notwithstanding the foregone, and solely to the extent applicable to any Customer Personal Data comprised of patient, medical or other protected health information regulated by HIPAA, if there is any conflict between this DPA and a business associate agreement between Customer and the Data Processor, then the business associate agreement shall prevail.  

 

Notwithstanding anything to the contrary in the Agreement or this DPA, each Party’s and all of its Affiliates’ liability, taken together in the aggregate, arising our or of relating to this DPA in connection with the Agreement shall remain subject to any aggregate limitations on liability set out in the Agreement.  

 

The term of this DPA shall commence on the Effective Date of the Agreement and conclude concurrent to the Term of the Agreement or the last Order Form executed by the parties, whichever is later. For clarity, in case the parties sign an evaluation agreement prior to signing the Agreement and it requires the signing of this DPA, then the terms agreed under the evaluation agreement shall continue to apply for the entire duration of the parties’ business relationship and shall apply to any and all processing of Personal Data under the Agreement.   

 

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: 

    1. disclosure is required by law; 

    2. 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 delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address