Data Processing Agreement

Data Processing Agreement

CONFIDENTIAL

This Data Processing Agreement (“DPA”) forms part of and is incorporated into the Software Subscription Agreement (“Agreement”) between Origami Risk LLC or the applicable subsidiary thereof that is a party to the Agreement (“Origami”) and the entity identified as the client in the Agreement or the relevant order form (“Client”).  The parties are referred to herein each as a “Party” and collectively the “Parties.”  This DPA sets forth Client’s instructions for the processing of Personal Data in connection with the services provided pursuant to the Agreement (the “Services”) and the rights and obligations of both Parties.  All capitalized terms used in this DPA but not defined will have the meaning set forth in the Agreement or under Data Protection Laws. In the event of any conflicts between this DPA and the Agreement, this DPA will govern.

1. Definitions.
   1. “Data Protection Laws” means all applicable laws, regulations, and other legal or regulatory requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, or the Processing of personal data in the United States, the United Kingdom, the European Union, and Canada, including without limitation, to the extent applicable, the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”); the United Kingdom Data Protection Act of 2018 (“UK GDPR”); the Swiss Federal Act on Data Protection (“FADP”); the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., as amended and including its regulations (“CCPA”); and other similar and applicable U.S. state and federal laws.

• “Data Subject” means an identified or identifiable natural person to whom Personal Data relates, and is deemed to also include a “consumer” as defined under Data Protection Laws.

• “Data Privacy Frameworks” means the EU-U.S Data Privacy Framework (“EU-U.S. DPF”), the Swiss-U.S. Data Privacy Framework (“Swiss-U.S. DPF”), and the UK Extension to the EU-U.S. DPF (“UK Extension”) as administered by the U.S. Department of Commerce.

• “EU SCCs” means the Standard Contractual Clauses issued pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, available at http://data.europa.eu/eli/dec_impl/2021/914/oj and completed as set forth herein.

• “Personal Data” includes “personal data,” “personal information,” “personally identifiable information,” and analogous terms, as defined by applicable Data Protection Laws, that Origami Processes to provide the Services under the Agreement.

• “Process”, “Processing,” “Processed,” etc., mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

• “Security Incident” means any breach of security that results in the accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
  • “Subprocessor” means any third party that Origami engages to Process Personal Data to assist in providing the Services to Client.
  • “UK Addendum” means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner’s Office, located at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf and completed as set forth herein.
  • The terms “Business,” “Controller,” “Processor,” and “Service Provider” are defined as in Data Protection Laws. “Controller” is deemed to also refer to “Business,” and “Processor” is deemed to also refer to “Service Provider.”

• Roles of the Parties; Scope and Purposes of Processing.
  • Roles of the Parties. To the extent that Client is the Controller of Personal Data, Origami is its Processor. To the extent that Client is a Processor of Personal Data, Origami is its Subprocessor.  The details of Origami’s Processing of Client Personal Data are described in Schedule 1 to this DPA.

• Scope and Purposes of Processing. This DPA applies to all Personal Data that Origami Processes to provide the Services to Customer pursuant to the Agreement.  Origami will Process Personal Data (i) in compliance with Data Protection Laws; (ii) on Client’s behalf and in accordance with Client’s instructions as set forth in this DPA and the Agreement, and/or as otherwise provided by Client in writing; and (iii) to provide the Services to Client under the Agreement for the business purposes set forth in the Agreement, unless other Processing activities are required to comply with Data Protection Laws (in which case, Origami shall provide prior notice to Client of such legal requirement, unless such law prohibits this disclosure).

• Client Rights. Client retains the right to take reasonable and appropriate steps to (i) ensure that Origami Processes Personal Data in a manner consistent with Data Protection Laws, and (ii) upon notice, stop and remediate unauthorized Processing of Personal Data, including any use of Personal Data not expressly authorized in this DPA.
  • Client Obligations. Client shall comply with all applicable Data Protection Laws in providing Personal Data to Origami in connection with the Services. Client represents and warrants that: (a) the Data Protection Laws applicable to Client do not prevent Origami from fulfilling the instructions received from  Client and performing Origami’s obligations under this DPA; and (b) Client has a lawful basis for disclosing the Personal Data to Origami and in enabling Origami to process the Personal Data as set out in this DPA. Client shall notify Origami without undue delay if Client makes a determination that the processing of Personal Data does not or will not comply with applicable Data Protection Laws, in which case, Origami shall not be required to continue processing such Personal Data.

• Personal Data Processing Requirements.
  • Restrictions on Processing. Origami will:
    • not retain, use, or disclose Personal Data outside of the direct business relationship between Client and Origami, or for any purpose (including any commercial purpose) not set forth in this DPA or the Agreement;
      • not “sell” or “share” any Personal Data, or use Personal Data for purposes of “targeted advertising,” as such terms are defined in Data Protection Laws; and
      • comply with any applicable restrictions under the CCPA on combining Personal Data with personal data that Origami receives from, or on behalf of, another person or persons, or that Origami collects from any interaction between it and any individual.
  • Confidentiality. Origami will ensure that the persons Processing Personal Data are bound by obligations of confidentiality no less protective than those set forth in the Agreement or are under an appropriate statutory obligation of confidentiality.

• Assistance. Origami will provide Client with reasonable assistance:
  • by implementing appropriate technical and organizational measures for the fulfilment of Client’s obligation to respond to requests for exercising Data Subjects’ rights (“Requests”) as set forth in Data Protection Laws, taking into account the nature of the Processing.  If Origami receives any Requests during the term of the Agreement, Origami will advise the Data Subject to submit the request directly to Client and then will provide Client with reasonable assistance in responding to the Request, where appropriate and requested by Client;
    • in performing any required data protection impact assessment of Processing or proposed Processing of Personal Data;
    • in consulting with regulatory authorities in relation to the Processing or proposed Processing of Personal Data, including any applicable obligation upon Origami to consult with a regulatory authority in relation to Origami’s Processing or proposed Processing of Personal Data; and
    • as necessary for the fulfilment of Client’s obligations under Data Protection Laws to maintain the security of Personal Data.

• Notice Regarding Compliance and Instructions. Origami will promptly notify Client if Origami determines that it can no longer meet its obligations under Data Protection Laws or if it believes that Client’s instructions violate Data Protection Laws, and Origami is not deemed to be in breach of this DPA if it declines to Process Personal Data in a way that Origami reasonably and in good faith believes would cause Origami to violate Data Protection Laws.
• Data Security. Origami will use appropriate administrative, technical, physical, and organizational measures to protect Personal Data as set forth in Schedule 2. Origami will provide the level of protection for Personal Data that is required under Data Protection Laws. Such measures will take 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, so as to ensure a level of security appropriate to the risk.

• Security Incident.
  • Notice. Origami will notify Client of any Security Incident without undue delay or within the time period required under Data Protections Law. To the extent available, this notification will include Origami’s then-current assessment of the following: (i) the nature of the Security Incident, including, where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (ii) the likely consequences of the Security Incident; and (iii) measures taken or proposed to be taken by Origami to address the Security Incident, including, where applicable, measures to mitigate its possible adverse effects. Origami will provide timely and periodic updates to Client as additional information regarding the Security Incident becomes available. Client acknowledges that any updates may be based on incomplete information.
  • Responsibilities of the Parties. Origami will comply with the Security Incident-related obligations applicable to it and will assist Client in Client’s compliance with its Security Incident-related obligations, in each case to the extent required under Data Protection Laws. Client is solely responsible for complying with Security Incident notification requirements applicable to Client. Origami’s notice of or response to a Security Incident under this Section 5 will not be an acknowledgement or admission by Origami of any fault or liability with respect to the Security Incident.
• Subprocessors.
  • Authorization to Engage Subprocessors. Client agrees that Origami may, and provides general authorization for Origami to, engage Subprocessors to Process the Personal Data to assist in providing the Services. A list of Origami’s Subprocessors is available at www.origamirisk.com/servicedescriptions, provided that such website may be updated by Origami upon written notice to Client.  (“Sub-processors List Webpage”). Origami will impose contractual obligations on any Subprocessor it appoints requiring it to protect Personal Data to standards that are no less protective than those set forth under this DPA. Origami shall remain liable to Client for the performance of the Subprocessor’s obligations under Data Protection Law.  

• Subprocessor Notice and Objections. Origami will provide reasonable advance notice of new Subprocessors that it appoints during the term of the Agreement. To obtain such notice, Client may subscribe to notifications from Origami. Client has fourteen (14) calendar days from receiving such notice to make an objection on reasonable grounds relating to the protection of the Personal Data under Data Protection Laws by notifying Origami at dpo@origamirisk.com. In the event Client objects to a new Subprocessor, Origami will use commercially reasonable efforts to make available to Client a change in the Services or Client’s configuration or use of the Services to avoid processing of Client Personal Data by the objected-to new Subprocessor. If Origami is unable to make available such a reasonable change, then the parties shall negotiate in good faith on how to proceed. However, if the parties are not able to reach agreement within a reasonable period of time, either Party may upon written notice terminate without penalty the applicable Agreement. 

• Data Transfers.
  • Authorization to Transfer Personal Data. Client authorizes Origami and its Subprocessors to make international transfers of Personal Data in accordance with this DPA and Data Protection Laws.
  • Order of Precedence. The Parties acknowledge that Data Protection Laws may require the Parties to implement certain safeguards (a “Transfer Mechanism”) for Client to transfer Personal Data to Origami. In the event a transfer of Personal Data is covered by more than one Transfer Mechanism, the transfer will be subject to a single Transfer Mechanism, in accordance with the following order of precedence: (i) the Data Privacy Frameworks; (ii) to the extent that the Data Privacy Frameworks do not apply to a given transfer or are invalidated, the EU SCCs and/or UK Addendum as set forth in Sections 7(c)-(e), as applicable; and (iii) if neither of the preceding is applicable, the Parties will cooperate in good faith to enter into an alternative Transfer Mechanism to the extent required by Data Protection Laws.
  • Data Privacy Frameworks. To the extent Origami processes Personal Data originating from the EEA, United Kingdom, or Switzerland and Origami is self-certified under the Data Privacy Frameworks, Origami will adhere to the Data Privacy Principles with respect to Personal Data transferred to Origami under that those Principles, as applicable.
  • EU SCCs. To the extent legally required, by entering into this DPA, Client and Origami are deemed to have signed the EU SCCs, which form part of this DPA and (except as described in Sections 7(e) and (f) below) are deemed completed as follows:
    • Module 2 of the EU SCCs applies to transfers of Personal Data from Client (as a Controller) to Origami (as a Processor), and Module 3 of the EU SCCs applies to transfers of Personal Data from Client (as a Processor) to Origami (as a Subprocessor);
      • Clause 7 (the optional docking clause) is not included;
      • Clause 9 (Use of Sub-processors): Option 2 (General written authorization) will apply and the time period for prior notice of Subprocessor changes is set forth in Section 6 of this DPA;
      • Clause 11 (Redress): The optional language will not apply;
      • Clause 17 (Governing law): The Parties choose Option 1 (the law of an EU Member State that allows for third-Party beneficiary rights) and select the law of Ireland;
      • Clause 18 (Choice of forum and jurisdiction): The Parties select the courts of Ireland;
      • Annexes I (List of Parties) and II (Technical and organizational measures) are completed as set forth in Schedules 1 and 2 of this DPA, respectively; and
      • Annex III (List of Subprocessors) is not applicable because the Parties have chosen General Authorization under Clause 9, but details regarding Origami’s Subprocessors can be found in Section 6 above.

• UK Addendum. To the extent legally required, by entering into this DPA, the Parties are deemed to have signed the UK Addendum, which forms part of this DPA and takes precedence over the rest of this DPA as set forth in the UK Addendum. The Tables within the UK Addendum are deemed completed as follows:
  • Table 1: The Parties’ details shall be the Parties to the extent any of them is involved in such transfer, and the Key Contact shall be the contacts set forth in the Agreement.
    • Table 2: The Approved EU SCCs referenced in Table 2 shall be the EU SCCs as executed by the Parties and completed in Section 7(d) of this DPA.
    • Table 3: Annexes I and II are set forth in Schedules 1 and 2 below, respectively. Annex III is inapplicable.
    • Table 4: Either Party may end this DPA as set out in Section 19 of the UK Addendum.

• Transfers of Swiss Personal Data. For transfers of Personal Data that are subject to the FADP, the EU SCCs form part of this DPA as set forth in Section 7(d) of this DPA, but with the following differences to the extent required by the FADP: (i) references to the GDPR in the EU SCCs are to be understood as references to the FADP insofar as the data transfers are subject exclusively to the FADP and not to the GDPR; (ii) the term “member state” in EU SCCs shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the EU SCCs; and (iii) the relevant supervisory authority is the Swiss Federal Data Protection and Information Commissioner (for transfers subject to the FADP and not the GDPR), or both such Commissioner and the supervisory authority identified in the EU SCCs (where the FADP and GDPR apply, respectively).
  • Order of Precedence.  In the event of inconsistencies between the DPA and the EU SCCs, as completed in subsections (c)-(e) of this Section 7, the SCCs will prevail.
• Audits.
  • Standard Audit Process. Origami uses an external auditor to examine its security and confidentiality controls in relation to the Service. This audit: (a) will be performed at least annually; (b) will be performed according to Service Organization Control (SOC) 2 standards or such other alternative or successor standards that are substantially similar to SOC 2; (c) will be performed by an independent third party auditor at Origami’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Origami’s Confidential Information under the confidentiality provisions of the Agreement. Origami will make available to Client the Report to demonstrate compliance with this DPA (an “Audit”) provided the Agreement remains in effect. Client may request an Audit upon at least fourteen (14) days’ prior written notice to Origami, no more than once annually, except, in the event of a Security Incident occurring on Origami systems, in which case Customer may request an Audit within a reasonable period of time following such Security Incident.
  • Written Requests and Inspections. If Client has a reasonable objection that the Report provided is not sufficient to demonstrate Origami’s compliance with this DPA, Client may, as reasonably necessary: (i) request additional information from Origami in writing, and Origami will respond to such written requests within a reasonable period of time (“Written Requests”); and (ii) only where Origami’s responses to such Written Requests do not provide the necessary level of information reasonably required by Client, request access to Origami premises, systems and staff, upon at least thirty (30) days’ prior written notice to Origami (an “Inspection”) subject to the parties having mutually agreed upon (a) the scope, timing, and duration of the Inspection, (b) the use of a third-party auditor to conduct the Inspection, (c) the Inspection being carried out only during regular business hours, with minimal disruption to Origami business operations, and (d) all costs associated with the Inspection being borne by Client.  Inspections will be permitted no more than once annually, except in the event of a Security Incident.
  • Audit Process.  To request an Audit, make Written Requests, or engage in an Inspection, Client must notify Origami pursuant to the instructions above at dpo@origamirisk.com.
  • Duty of Confidentiality and EU SCC compliance.  Nothing in this Section 8 shall require Origami to breach any duties of confidentiality to any third parties.  The Parties agree that the audits described in the EU SCCs, if applicable, shall be performed in accordance with this Section 10.
• Return or Destruction of Personal Data. Except to the extent required otherwise by Data Protection Laws, Origami will comply with the data retention and destruction requirements set forth in the Agreement .  The Parties agree that the certification of deletion described in the EU SCCs, if applicable, shall be provided only upon Customer’s written request.
• Survival; Amendments. The provisions of this DPA survive the termination or expiration of the Agreement for so long as Origami or its Subprocessors Process Personal Data. Origami may amend this DPA in order to comply with Data Protection Laws and will notify Client of such changes. By continuing to use the Services after the DPA has been updated, Client is deemed to have agreed to the updated DPA.

1. Liability.  Each party’s liability towards the other party under or in connection with this DPA will be limited in accordance with the provisions of the Agreement

SCHEDULE 1 — ANNEX I TO THE EU SCCS AND DETAILS OF THE PERSONAL DATA PROCESSING

1. LIST OF PARTIES

Data exporter(s):

• Name: Client, as identified in the Agreement.
• Address: As provided in the Agreement.
• Contact person’s name, position, and contact details: As provided in the Agreement.
• Activities relevant to the data transferred under these Clauses: The data exporter receives the data importer’s Services pursuant to their underlying Agreement.
• Signature and date: The Parties agree that execution of the Agreement shall constitute execution of these EU SCCs by both parties.
• Role:  Controller or Processor, as relevant.

Data importer(s):

• Name: Origami, as identified in the Agreement. 
• Address: As provided in the Agreement.
• Contact person’s name, position, and contact details: As provided in the Agreement.
• Activities relevant to the data transferred under these Clauses: The data importer provides the Services to the data exporter pursuant to their underlying Agreement.
• Signature and date: The Parties agree that execution of the Agreement shall constitute execution of these EU SCCs by both parties.
• Role: Processor or Subprocessor, as applicable.

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred: At its sole discretion, and in compliance with the applicable data protection laws, the data exporter may submit personal data to the data importer which may include but is not limited to the categories below:

• Customers, prospects, business partners and vendors who are natural persons. Customers, employees or agents of the data exporter’s customers, prospects, business partners and agents who are natural persons.
• Data exporter’s users authorized by the data exporter who are natural persons

Categories of personal data transferred: At its sole discretion after careful evaluation of compliance with the applicable laws, the data exporter may submit personal data to the data importer which may include but is not limited to the categories below:

• First and last name, Employer, title and position
• Contact information
• Personal life data
• Personal Identification data
• Connection and/or localization data

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:  At its sole discretion and subject to the qualification set forth hereunder, the data exporter may submit special categories of data to the data importer which is personal data with information revealing racial or ethnic origin, religious or philosophical beliefs, political opinions, trade union or guild membership, and the processing of data regarding health or sex life.

The choice of the type of data that will be processed using the Origami Service remains solely within the discretion and choice of the data exporter. In selecting the personal data of any categories the data exporter shall ensure that such personal data is suitable for processing with and through Origami Service in compliance with the applicable data protection laws.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis):  Continuous for the duration of the Agreement.

Nature of the processing: The data importer’s Processing activities shall be limited to those discussed in the Agreement and the DPA.

Purpose(s) of the data transfer and further processing: The purpose of the transfer to and further Processing of Personal Data by the data importer is for the data importer to provide the Services to the data exporter as set forth in the Agreement.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Personal Data will be retained for the period of time necessary for the data importer to provide the Services to the data exporter under the Agreement and/or in accordance with applicable legal requirements.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: Same as above to the extent that Personal Data is provided to Subprocessors for purposes of providing the Services.

C. COMPETENT SUPERVISORY AUTHORITY

To the extent legally permitted, the competent supervisory authority is the Irish Data Protection Commissioner.

SCHEDULE 2 – ORIGAMI DATA SECURITY MEASURES

Origami maintains a comprehensive, written information security program that contains administrative, technical, organizational, and physical safeguards that are appropriate to (a) the size, scope and type of Origami’s business; (b) the type of information that Origami will store; and (c) the need for security and confidentiality of such information. 

Origami’s Information Security Program includes security requirements for its personnel and all Subprocessors or agents who have access to Personal Data (“Data Personnel”). Origami’s security requirements cover the following areas:

1. Information Security Policies and Standards. Origami will maintain written information security policies, standards and procedures addressing administrative, technical, and physical security controls and procedures. These policies, standards, and procedures shall be kept up to date, and revised whenever relevant changes are made to the information systems that use or store Personal Data.
   1. Physical Security. Origami will maintain commercially reasonable security systems at all Origami sites at which an information system that uses or stores Personal Data is located (“Processing Locations”) that include reasonably restricting access to such Processing Locations, and implementing measures to detect, prevent, and respond to intrusions.
   1. Organizational Security. Origami will maintain information security policies and procedures addressing acceptable data use standards, data classification, and incident response protocols.
   1. Network Security. Origami maintains commercially reasonable information security policies and procedures addressing network security.
   1. Access Control.  Origami agrees that: (1) only authorized Origami staff can grant, modify, or revoke access to an information system that Processes Personal Data; and (2) it will implement commercially reasonable physical and technical safeguards to create and protect passwords.
   1. Virus and Malware Controls. Origami protects Personal Data from malicious code and will install and maintain anti-virus and malware protection software on any system that handles Personal Data.
   1. Personnel.  Origami has implemented and maintains a security awareness program to train employees about their security obligations.  Data Personnel follow established security policies and procedures. Disciplinary process is applied if Data Personnel fail to adhere to relevant policies and procedures.
   1. Business Continuity. Origami implements disaster recovery and business resumption plans that are kept up to date and revised on a regular basis. Origami also adjusts its Information Security Program in light of new laws and circumstances, including as Origami’s business and Processing change.

Additional Details regarding Origami’s information security program, in the form of its most recent SOC 2 Report, are available upon request.