Data Processing Addendum

1. Definitions

   AI	means Artificial Intelligence. These (opt-in only) features, will be offered in conjunction with the Product, and used based on Customer’s sole discretion. AI features bring the capability to analyse data, make predictions, and automate tasks.
   AI Policy	means Bynder’s Artificial Intelligence Privacy Policy. This AI Policy provides Customer guidelines on the use of AI features within the product, emphasising data handling and privacy considerations, accessible here.
   CCPA	means the California Consumer Privacy Act Cal. Civ. Code § 1798.100 et seq., and any amendments or supplements thereto, including the final California Consumer Privacy Act Regulations. Further specified in Schedule 6 to this DPA.
   Controller	means the entity which determines the purposes and means of the Processing of Personal Data.
   Customer	means the legal entity that is a party to the Agreement with Bynder.
   Data Protection Legislation	means all laws and regulations, including but not limited to national, supranational and state-level privacy law(s), applicable to the Processing of Personal Data under the Agreement.
   Data Subject	means the identified or identifiable person to whom Personal Data relates.
   EEA	means the European Economic Area.
   GDPR	means Regulation 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).
   Personal Data	means any information relating to an identified or identifiable natural person where such data is Processed by Bynder on behalf of Customer.
   Processing	(and all verb tenses) means any operation or set of operations which is performed on Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
   Processor	means the entity which Processes Personal Data on behalf of the Controller.
   Sensitive Categories of Data	means personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; trade-union membership; genetic data, biometric data processed solely to identify a human being; health-related data; data concerning a person's sex life or sexual orientation.
   Sub-Processor	means a Processor engaged by Bynder.
   Standard Contractual Clauses	means, according to the Standard Contractual Clauses set forth in Schedule 5 to this DPA, (a) where the GDPR applies, the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (“EU SCCs”), or (b) where the UK GDPR applies, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses of 21 March 2022 (“UK Addendum”).
   Supervisory Authority	means an independent public authority established or recognized under Data Protection Laws.
   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).

1. Processing of Personal Data

   1. Scope, Roles and Details of the Processing. This DPA, including any Schedules and Annexes, applies when Personal Data is processed by Bynder pursuant to the Agreement. Regarding the Processing of Personal Data, Customer is the Controller, Bynder is the Processor and Bynder will engage Sub-Processors pursuant to the requirements set forth in Section 6 below. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 to this DPA.

   2. Customer’s Processing of Personal Data. Customer shall, in its use of the Product, Process Personal Data in accordance with the requirements of Data Protection Legislation, including any applicable requirement to provide notice to Data Subjects of the use of Bynder as Processor. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Legislation. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. If Customer chooses to enable any AI features within the Agreement, Bynder's AI Policy will apply. Customer specifically acknowledges that its use of the Product will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.

   3. Bynder Processing of Personal Data. Bynder shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); and (ii) Processing initiated by Users in their use of the Product.

1. Instructions

   1. Customer Affiliates. Customer represents that it is authorised to give data processing instructions to Bynder and to otherwise act on behalf of any Customer Affiliates under this DPA.

   2. Documented Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement with Bynder for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately and in writing.

   3. Exception. If Bynder is required by law to conduct additional processing, it shall inform Customer of that legal requirement before Processing, unless such notification is prohibited by law.

   4. Instructions likely to violate Data Protection Legislation. If, in Bynder’s opinion, Customer’s instructions are either likely to violate Data Protection Legislation, Bynder is entitled to refuse to follow such instructions and shall inform Customer of the reasons for its refusal. In such cases, Customer shall provide alternative instructions in a timely manner and Bynder may cease all Processing of the impacted Personal Data (other than secure storage thereof) until it receives acceptable instructions.

1. Bynder Personnel

   1. Confidentiality Obligations. Bynder ensures that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, and have executed written confidentiality agreements.

   2. Limited Access. Bynder ensures that Bynder’s access to Personal Data is limited to those personnel performing services in accordance with the Agreement.

   3. Data Protection Officer. Bynder has appointed a data protection officer (“DPO”). The appointed DPO may be reached at [email protected].

1. Security of Processing

   1. Measures. Bynder has implemented and shall maintain appropriate technical and organisational measures to protect Personal Data against accidental, unauthorised, or unlawful destruction, loss, alteration, disclosure, and access (“Security Measures”), as described in Schedule 3 of this DPA, including as appropriate:

      • the pseudonymisation and encryption of Personal Data;
      • the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of Processing systems;
      • subject to the Service Level Agreement, the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
      • the regular testing, assessment, and evaluation of the effectiveness of the Security Measures.

   2. Customer has made an independent determination as to whether these Security Measures meet the Customer's requirements.

   3. Third Party Certifications. Bynder has obtained third party certifications as set forth in Schedule 3 of this DPA. Upon Customer’s written request, but not more than once per year, and subject to the confidentiality obligations set forth in the Agreement, Bynder shall make available to Customer a copy of Bynder’s then most recent third-party certification and audit report, as applicable.

1. Sub-Processors

   1. General Authorization. Customer agrees that Bynder may use Sub-Processors to fulfil its contractual obligations under this DPA or to provide certain services on its behalf.

   2. Sub-Processor Obligations. Bynder will enter into a written agreement with the Sub-Processor and Bynder will impose on Sub-Processors data protection obligations not less protective than those in this DPA.

   3. Sub-Processor List. Bynder currently uses the Sub-Processors listed in Schedule 2 to this DPA. A list of Sub-Processors is also available on Bynder's website at www.bynder.com/sub-processors/ (“Sub-Processors Page”). Bynder will update the Sub-Processors Page with any new Sub-Processor and notify Customer at least 30 calendar days before such Sub-Processors will begin to Process Personal Data.

   4. Objection Right. Customer may object to the use of a new Sub-Processor on a reasonable and legitimate basis. In the event Customer objects to a new Sub-Processor, Customer shall provide written notice to [email protected] within the 30 calendar day notice period set out in Section 6.3, outlining Customer’s specific concerns about the new Sub-Processor in order to give Bynder the opportunity to address such concerns. Bynder may, at its sole discretion, (i) not appoint the Sub-Processor and/or propose an alternate Sub-Processor; (ii) take the steps to address the Customer’s specific concerns and obtain Customer’s written consent to use the Sub-Processor; or (iii) make available to Customer the Bynder Product(s) without the particular aspect that would involve use of the objected-to Sub-processor. If Bynder is unable or determines in its reasonable judgement that it is commercially unreasonable to do any of the options in Section 6.4 (i)-(iii), Customer may terminate the Agreement in accordance with section 19.3 of the Terms.

   5. Liability. Bynder will remain responsible for the performance of a Sub-Processor to the same extent Bynder would be responsible if performing the services of each Sub-Processor directly under the terms of this DPA.

1. Rights of Data Subject

   Bynder will, to the extent legally permitted, notify Customer without undue delay if Bynder receives a request from a Data Subject to exercise the Data Subject’s rights set forth in Data Protection Legislation, especially Chapter III of GDPR (“Data Subject Request”). Taking into account the nature of the Processing, Bynder will assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to Data Subject Requests under Data Protection Legislation. To the extent Customer is unable to address a Data Subject Request, Bynder will upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request. To the extent legally permitted, Customer will be responsible for any costs arising from Bynder’s provision of such assistance.

1. Assistance

   Taking into account the nature of Processing and the information available to Bynder, Bynder will provide reasonable assistance and cooperation to Customer in respect of its relevant obligations under Articles 32 to 36 GDPR. To the extent legally permitted, Customer will be responsible for any costs arising from Bynder’s provision of such assistance.

1. Personal Data Breach Notification

   Bynder will notify Customer without undue delay, but always within 48 hours, after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed by Bynder or its Sub-Processors of which Bynder becomes aware (“Personal Data Breach”). Notification of Personal Data Breaches, if any, will be delivered by email at the email address specified for notices in the applicable Order Form, if no email address is specified, to one or more of Customer’s Product administrators. Bynder's obligation to notify Customer of a Personal Data Breach is not an acknowledgement by Bynder of any fault or liability with regard to the Personal Data Breach.

1. Return and Deletion of Personal Data

   1. Upon Customer’s request to [email protected] Bynder will return or delete Personal Data in accordance with the timeframes specified in the Agreement, unless European Union law or the laws of a EU member state requires that Bynder retains the Personal Data. Bynder may delete Personal Data six months after termination or expiration of the Agreement. Bynder shall dispose Personal Data in accordance with the latest method(s) of data sanitising, as detailed in NIST 800-88 (“Guidelines for Media Sanitization”).

   2. Notwithstanding anything to the contrary in this DPA, Bynder may retain Personal Data if and for as long as required by law.

   3. Personal Data stored in Bynder’s auto-backup or archival systems will be deleted automatically after 180 days after back-up, or otherwise as soon as technically possible. Upon written request, Bynder shall provide a certificate to Customer certifying that Customer Data has been destroyed.

   4. If Customer provides Personal Data on a hard drive or other forms of removable media, such removable media must be encrypted or password protected. In collaboration with Customer, Bynder shall either return the removable media to Customer, or securely destroy such removable media by using a certified third party. A certificate of destruction can be made available to Customer upon request

1. Customer Audits

   1. Summary Report of Internal Audit. In addition to Section 5.3, Bynder will on a regular basis audit the security of the systems that it uses to Process Personal Data. Upon Customer’s written requests, Bynder will make available to Customer a summary of the results of this audit ("Summary Report") to demonstrate compliance with the obligations under this DPA

   2. Customer Audit. If Customer substantiates that the Summary Report cannot satisfactorily demonstrate Bynder’s compliance and that it has a justifiable suspicion that Bynder is in breach of this DPA, Customer may conduct an audit on Bynder’s premises, not more than once per year, and subject to the confidentiality obligations set forth in the Agreement and following conditions:

      • Customer must provide at least 30 days’ prior written notice to [email protected]. Such notice must indicate the reasons for the audit request, and will be effective upon Bynder’s confirmation of receipt;
      • Audits will be conducted within a mutually agreed scope, duration, and timing; performed by Customer, or a third party that is pre-approved by Bynder, such approval not to be unreasonably withheld; and conducted within Bynder’s normal business hours and with best efforts taken to avoid disruption of Bynder’s business operations;

   3. Cost. The cost of an audit on Bynder’s premises will be borne by Customer, unless a Material Breach (as defined in the Agreement) of this DPA is found, in which case Bynder will bear the costs.

   4. Nothing in this Section 11 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority's or Data Subject's rights under the Standard Contractual Clauses.

1. Transfers of Personal Data to Third Countries

   1. Regions. Customer may specify the location where Customer Data, including Personal Data, will be Processed in the Agreement (“Region”). Except as necessary to provide the Product and services initiated by Customer, or as necessary to comply with the law, Bynder will not transfer Personal Data from Customer’s selected Region. A transfer to a third country shall take place only if the conditions of Chapter V. GDPR are complied with.

   2. Application of Standard Contractual Clauses. Bynder will enter into Standard Contractual Clauses with each affiliate and/or Sub-Processor where the Processing of Personal Data is transferred outside the EEA, either directly or via onward transfer, to any third country not recognized by the European Commission as providing an adequate level of protection for Personal Data. The Standard Contractual Clauses will not apply to Personal Data that is not transferred, either directly or via onward transfer, outside the EEA.

   3. Revision of Standard Contractual Clauses Parties agree that, in the event the Standard Contractual Clauses are revised or replaced by a competent authority, they shall execute any updated or replacement Standard Contractual Clauses in order to ensure continued compliance with Data Protection Legislation. It shall be the Customer's obligation to inform Bynder about the location of their end users to facilitate proper data processing and compliance with applicable Data Protection Legislation.

   4. Order of precedence. If the Standard Contractual Clauses apply, nothing in this Section 12 varies or modifies the Standard Contractual Clauses.

1. Limitation of liability

   Each party’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.

1. Entire Agreement, Hierarchy

   Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will take precedence to the extent of such conflict.

1. Term and termination

   This DPA shall enter into force at the same time as the Agreement and shall automatically terminate upon any termination or expiration of the Agreement

1. List of Schedules

   Schedule 1: Details of the Processing of Personal Data
   Schedule 2: Sub-Processors and Bynder Entities
   Schedule 3: Security Measures
   Schedule 4: Details of the Processing
   Schedule 5: Cross Border Transfers
   Schedule 6: CCPA Addendum
   Annex A: Technical and Organisational Measures

Download the PDF for the Schedules.

Updated: October 13 2023