Contents
This Data Processing Addendum ("DPA") is between Monograph Inc, a Delaware C-Corporation company ("Company") and that certain customer party to the Terms of Service (the "Agreement") (such customer, "Customer"). This DPA amends and forms part of the Agreement. This DPA applies where Company Processes Customer Personal Data as a Processor on behalf of Customer, the Controller, in connection with providing the Services. This DPA will be effective as of the effective date of the Agreement. This DPA will terminate automatically upon termination of the Agreement or as earlier terminated pursuant to the terms of this DPA. This DPA relates to how the Company Processes Customer Personal Data. Please also review the Privacy Policy available at monograph.com/privacy-policy for additional information about how we Process Personal Data other than Customer Personal Data.
1. Data Processing and Protection
1.1. Limitations on Use
Company will Process Customer Personal Data only: (a) pursuant to Customer's documented instructions as specified under Section 1.2 (Instructions), including with regard to transfers of Customer Personal Data to a third country; (b) as otherwise required by applicable laws; and (c) to improve the Services, to conduct research and development activities and to comply with Company's own legal obligations (provided such Processing does not conflict with applicable law). Where required by and except as permitted by applicable Data Protection Laws, Company will not: (x) retain, use, or disclose the Customer Personal Data (i) outside of the direct business relationship between the parties or (ii) for any purpose other than for the specific purpose of performing the Services; (y) sell or share (as defined by Data Protection Law) the Customer Personal Data; or (z) combine Customer Personal Data with Personal Data Company receives from individuals or other sources. The parties agree that Customer is not selling or sharing Customer Personal Data (as the terms sell or share are defined by CCPA).
1.2. Instructions
Customer instructs Company to Process Customer Personal Data as necessary to provide the Services and as otherwise authorized or permitted under this DPA, the Agreement, including as specified in Attachment 2 (Scope of Processing). This DPA, the Agreement, and any instructions provided by Customer through configuration tools made available by Company are Customer's documented instructions regarding Company's Processing of Customer Personal Data. Additional instructions provided by Customer (if any) may be provided through the Services or via email and Company shall confirm receipt of such additional instructions within a reasonable amount of time. Company may suspend Processing based upon any Customer instructions that Company reasonably suspects violate Data Protection Law, provided Company will promptly inform Customer if Company believes an instruction infringes Data Protection Law.
1.3. Compliance
Each party will comply with its obligations under Data Protection Law. Company shall promptly notify Customer if it determines that it cannot meet its obligations under Data Protection Law. Upon receiving written notice from Customer that Company has Processed Customer Personal Data without authorization, Company will take reasonable and appropriate steps to stop and remediate such Processing. Customer represents and warrants that: (i) where required by Data Protection Law, it has provided data subjects whose Customer Personal Data will be Processed in connection with the Agreement with a privacy notice or similar document that clearly and accurately describes Customer's practices with respect to the Processing of Customer Personal Data; (ii) it has obtained and will obtain and continue to have, during the term, all necessary rights, lawful bases, authorizations, consents, and licenses for the Processing of Customer Personal Data as contemplated herein; and (iii) Company's Processing of Customer Personal Data in accordance with the Agreement and this DPA will not violate Data Protection Law or cause a breach of any agreement or obligations between Customer and any third party.
1.4 – 1.8. Additional Obligations
1.4. Confidentiality. Company will ensure that persons authorized by Company to Process any Customer Personal Data are subject to appropriate confidentiality obligations. 1.5. Security. Company will use commercially reasonable efforts to implement and maintain appropriate technical and organizational measures designed to protect Customer Personal Data against Security Incidents and provide the level of protection required by Data Protection Law in accordance with Attachment 3 (Data Security Exhibit). Company may amend the technical and organizational measures, provided the new measures do not reduce the level of security provided by Attachment 3 (Data Security Exhibit). 1.6. Disposal. At the choice of Customer, Company will (or will enable Customer via the Services to) delete all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Company's data retention schedule) after expiry or termination of the Agreement (unless Data Protection Law requires the storage of such Customer Personal Data by Company, in which case Company will only further retain and Process such Customer Personal Data for the limited duration and purposes required by such Data Protection Law). The certification of deletion contemplated by Section 8.5 of the SCCs shall be provided on Customers' written request. 1.7. Additional Uses. Where permitted by Data Protection Law, Company may Process Customer Personal Data to detect Security Incidents and to protect against fraudulent or illegal activity. 1.8. Deidentified Data. Company may Process Deidentified Data for its lawful business purposes. Company will (a) take reasonable measures to ensure the Deidentified Data cannot be associated with a Data Subject and (b) publicly commit to maintain and use Deidentified Data in deidentified form and not attempt to reidentify Deidentified Data except as permitted by Data Protection Law.
2. Data Processing Assistance
2.1. Data Subject Rights Assistance. Customer shall be responsible for responding to requests from individuals to exercise rights under Data Protection Law relating to Customer Personal Data (each a "Data Subject Request"). Company will, to the extent permitted by Data Protection Law, notify Customer if Company receives a Data Subject Request with respect to Customer Personal Data. To the extent Customer, in its use of the Services, does not have the ability to address the Data Subject Request, Company will, on Customer's request, provide commercially reasonable assistance to Customer in responding to such Data Subject Request, to the extent the response to such Data Subject Request is required under Data Protection Law. Customer shall reimburse Company for all non-negligible costs Company incurs in performing its obligations under this Section 2.1 and Section 2.4, below. 2.2. Security Assistance. Taking into account the nature of Processing and the information available to Company, Company will provide commercially reasonable efforts to assist Customer in Customer's efforts to comply with Customer's obligations to secure Customer Personal Data by providing the information and assistance described in Section 3 (Audits). 2.3. Security Incident Notice and Assistance. Company will notify Customer without undue delay and within the time frame required under Data Protection Laws after becoming aware of a Security Incident. Company will further take commercially reasonable steps to mitigate the effects and minimize any impact from the Security Incident and assist Customer in complying with any related notification obligations under Data Protection Law. Where possible, such notice will include all available details required under Data Protection Law for Customer to comply with its own notification obligations to regulatory authorities or individuals impacted by the Security Incident. 2.4. Data Protection Impact Assessment (DPIA) and Prior Consultation Assistance. Where required by Data Protection Law and taking into account the nature of Processing and the information available to Company, Company will provide commercially reasonable assistance to Customer in ensuring compliance with the obligations related to DPIAs and consulting with regulatory authorities.
3. Audits
3.1. Company Audits. Company may procure audits by third parties to assess Company's adherence to the following standards or requirements: (a) certifications or other documentation evidencing compliance with alternative standards that are substantially equivalent to the foregoing (collectively, "Audits"). Subject to the confidentiality obligations set forth in the Agreement, Company will provide Customer with summaries of Company's then-current Audit reports ("Reports") on Customer's request, provided that Customer may not (y) use the Reports other than to conduct audits as described in this Section 3 or (z) disclose the Reports other than to its Auditor. 3.2. Customer Audits. Where Data Protection Law affords Customer an audit or assessment right, Customer (or its appointed representative) may carry out an audit or assessment of Company's policies, procedures, and records relevant to the Processing of Customer Personal Data. Customer agrees to exercise its audit rights by first requesting the Reports as described in Section 3.1 (Company Reports). Customer will only request additional information or an on-site audit of Company to the extent the information provided by Company is not reasonably sufficient to enable Customer to evaluate Company's compliance with this DPA and/or Data Protection Law. Except in the event of a Security Incident or regulatory investigation, Customer will provide no less than 30 days' advance notice of its request for an on-site audit and will cooperate in good faith with Company to schedule any such audit on a mutually agreeable date and time. Any such on-site audit must occur during Company's normal business hours and be conducted by Customer or a nationally recognized independent auditor ("Auditor") that has agreed to confidentiality provisions reasonably acceptable to Company. Customer is responsible for ensuring that the audit will comply with Company's applicable on-site policies and procedures and will not unreasonably interfere with Company's business activities. Customer will provide a written summary of any audit findings to Company, and Customer may not (a) use the audit findings other than to conduct audits as described in this Section 3 or (b) disclose the audit findings other than to its Auditor. 3.3. Confidentiality. The audit findings and the Reports will be considered Company's "Confidential Information" and Customer will take reasonable measures to protect the secrecy of the Confidential Information. Such measures shall be no less protective of the Confidential Information than those used by Customer to protect its own confidential or proprietary information. Customer will promptly notify Company of any unauthorized access or disclosure of Company's Confidential Information and Customer will delete or return the Confidential Information to Company upon termination of the Agreement. The foregoing restrictions and obligations will not apply to any information that Customer can prove by clear and convincing evidence becomes publicly known through no breach of this DPA.
4. Subprocessors
4.1. Appointment of Subprocessors. Customer authorizes Company to use subcontractors to Process Customer Personal Data in connection with providing the Services (each, a "Subprocessor"). Customer specifically consents to Company's appointment of the Subprocessors identified on Attachment 4 (the "Subprocessor List"). 4.2. Objection Right for New Subprocessors. Where required by Data Protection Law, Company will notify Customer of its intent to update the Subprocessor List at least 15 days prior to engaging a new Subprocessor. Customer may object to Company's use of a new Subprocessor within 10 days of receiving such notice by sending an e-mail to legal@monograph.com clearly indicating its desire to object to any such change. If, following notification in accordance with Section 4.2.1, Customer objects to the change in Subprocessors, Company and Customer will cooperate in good faith to resolve Customer's objection. If the parties are unable to resolve Customer's objection within 10 days, then either party may terminate the Agreement only with respect to those Services that Company indicates cannot be provided without the objected-to Subprocessor. 4.3. Liability. Company will impose data protection obligations upon any Subprocessor that are no less protective of Customer Personal Data than those included in this DPA. Company will be liable to Customer for any breach of such obligations by its Subprocessors as it would for its own acts and omissions.
5. Data Transfers
Customer authorizes Company and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom ("UK") to the United States. Where required by Data Protection Law, the parties will conduct any transfers of European Economic Area, UK, and Swiss residents' Customer Personal Data to a country not subject to an adequacy decision (a "Data Transfer") pursuant to the SCCs, which are incorporated and deemed executed by this reference. If Company notifies Customer that Data Transfers can be conducted in compliance with Data Protection Law pursuant to an alternative transfer mechanism such as the Data Privacy Framework, the parties will rely on the alternative mechanism to legitimize Data Transfers instead of the provisions that follow. The parties agree to comply with the general clauses and with Module 2 (Controller to Processor) of the SCCs with Customer as the "data exporter" and Company as the "data importer." Each party's signature to the Agreement shall be considered a signature to the SCCs to the extent that the SCCs apply hereunder. Transfers Subject to Swiss Data Protection Law. If any Customer Personal Data subject to the Swiss Federal Act on Data Protection of 19 June 1992 (the "FADP") is subject to a Data Transfer, the parties will conduct such transfer pursuant to the SCCs with the following modifications: the competent supervisory authority in Annex I.C under Clause 13 shall be the Federal Data Protection and Information Commissioner; references to a "Member State" and "EU Member State" will not be read to prevent individuals in Switzerland from suing for their rights in Switzerland; and references to "GDPR" in the SCCs will be understood as references to the FADP. Transfers Subject to the UK GDPR. Any Customer Personal Data that is subject to the UK GDPR and a Data Transfer will be subject to the UK IDTA, which is incorporated and deemed executed by this reference.
6. Limitation of Liability
Each party's and all of its affiliates' 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 in the Agreement. Nothing in this Section 6 is intended to restrict the rights of individuals under Data Protection Law.
7. Miscellaneous
To the extent there is any conflict between the terms of this DPA, on the one hand, and the applicable SCCs or UK IDTA, on the other hand, the SCCs or UK IDTA, as appropriate, will control. Except as specifically amended and modified by this DPA, the terms and provisions of the Agreement remain unchanged and in full force and effect. Except as expressly stated in the SCCs and the UK IDTA, the governing law and forum selection provisions of the Agreement will apply to any disputes arising out of this DPA. No supplement, modification, or amendment of this DPA will be binding unless executed in writing by each party to this DPA.
Attachment 1: Definitions
"CCPA" means the California Consumer Privacy Act of 2018, including (a) as amended by the California Privacy Rights Act of 2020 or otherwise and (b) any regulations promulgated thereunder. "Controller" means "controller" and "business" (and analogous variations of such terms) under Data Protection Law. "Customer Personal Data" means Personal Data that Company Processes on behalf of Customer in connection with providing the Services as described in Attachment 2. "Data Protection Law" means the applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. "Data Protection Law" may include, but are not limited to, the GDPR, the UK GDPR, the FADP, the CCPA, the Colorado Privacy Act, the Connecticut Act Concerning Personal Data Privacy and Online Monitoring, the Virginia Consumer Data Protection Act, the Utah Consumer Privacy Act, and any other state, federal, or international data protection or privacy laws that apply to Company's Processing of Customer Personal Data. "Data Subject" means any individual to whom Personal Data relates. "Deidentified Data" means information that cannot reasonably be linked to or associated with Customer or any Data Subject. "GDPR" means 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). "Personal Data" means "personal data" and "personal information" (and analogous variations of such terms) under Data Protection Law. "Process" means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, extending further to such operation or operations under Data Protection Law. "Processor" means "processor" and "service provider" (and analogous variations of such terms) under Data Protection Law. "SCCs" means Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on SCCs for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (Text with EEA relevance), available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914, as may be replaced or superseded by the European Commission. The parties make the following choices for implementing the SCCs: - In Clause 7, the optional docking clause will apply. - The audits contemplated by Section 8.9 shall be conducted according to the audit provisions of this DPA. - In Clause 9, Option 2 will apply and the time period for notice of Subprocessor changes will be as set forth in this DPA. - In Clause 11 the optional language will not apply to the SCCs or the UK IDTA. - In Clause 17, the SCCs shall be governed by the laws of Ireland. - In Clause 18(b), the parties agree to resolve disputes arising from the SCCs in the courts of Ireland. - The information needed to complete Annex I of the SCCs is included in Attachment 2 to this DPA. - The information needed to complete Annex II of the SCCs is included in Attachment 3 to this DPA. - The information needed to complete Annex III of the SCCs is included in Attachment 4 to this DPA. "Security Incident" means "personal data breach" and "security incident" (and analogous variations of such terms) under Data Protection Law. "Services" means the Platform Services provided by Company pursuant to the Agreement. "UK GDPR" means the GDPR as incorporated into United Kingdom law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (each as amended, superseded, or replaced). "UK IDTA" means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner, Version B1.0, in force 21 March 2022, available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf. Neither party can terminate the UK IDTA pursuant to Table 4 and Section 19 thereof without the written consent of the other.
Attachment 2: Scope of Processing
Data exporter: Customer. Data importer: Company. Subject-Matter and Duration of Processing: Company Processes Customer Personal Data if and when provided by Customer in the course of providing the Services in accordance with the Agreement and until the Agreement terminates or expires. Nature and Purpose of Processing: Processing of Customer Personal Data in connection with and for the purpose of Company providing the Services to Customer pursuant to the Agreement. Specifically, the Customer Personal Data will, if and to the extent Customer provides it, be subject to storage and analysis, among other Processing activities. Types of Customer Personal Data: Customer may submit Customer Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion. This may include, but is not limited to: contact information like name, email address, and telephone number; device identification data and traffic data (e.g., IP addresses, MAC addresses, web logs); and information needed to provide the Services like hours worked by and W2/1099 information of employees/personnel and financial information of clients. Categories of Data Subjects: Customer's clients, employees/personnel. Special Categories of Data: The Services are not designed for special categories of Personal Data. Company does not anticipate that Customer will submit special categories to the Services. To the extent that such data is submitted to the Services, it is determined and controlled by Customer in its sole discretion. Frequency of Transfers: Company will import Customer Personal Data on a continuous basis. Period of Data Retention: Company will retain the Personal Data until the termination of the Agreement, unless otherwise agreed to by the parties.
Attachment 3: Data Security Exhibit
1. Program. Company will implement and maintain an information security program containing administrative, technical and organizational safeguards appropriate to the risks posed that comply with this DPA and that: (a) are designed to protect against any Security Incident; and (b) meet or exceed prevailing industry standards and requirements under Data Protection Law. 2. Company will: (a) abide by the "principle of least privilege," pursuant to which Company will permit access to Personal Data by its personnel solely on a need-to-know basis; and (b) promptly terminate its personnel's access to Personal Data when such access is no longer required for performance under the Agreement. 3. Account Management. Company will manage the creation, use, and deletion of all account credentials used to access the Company Services and any back-end systems, including by implementing: (a) a segregated account with unique credentials for each user; and (b) strict management of administrative accounts. 4. Security Segmentation. Company will monitor, detect and restrict the flow of information on a multilayered basis within its systems using tools such as firewalls, proxies, and network-based intrusion detection systems. 5. Company will use data loss prevention measures designed to identify, monitor and protect Personal Data in use, in transit and at rest. Such data loss prevention processes and tools will include automated tools to identify attempts of data exfiltration. 6. Encryption. Company transmits or sends wirelessly across public networks or within the Company Systems using encryption. Company will safeguard the security and confidentiality of all encryption keys associated with encrypted Personal Data. 7. To the extent any Personal Data includes "cardholder data," as such term is defined by the Payment Card Industry Data Security Standard ("PCI DSS"), Company will use Stripe, a PCI DSS compliant company, to comply with the PCI DSS and other applicable PCI and payment card issuer, brand or association rules and requirements. 8. Physical Safeguards. Company will maintain physical access controls designed to secure its systems.
Attachment 4: Subprocessor List
Check Inc. — Company/employee data synced for embedded payroll (USA) Stripe — Company data synced for subscription management (USA) Google Cloud Platform — Data warehousing and analytics (USA) AWS — File storage, caching (USA) Heroku — PaaS, application hosting, database storage (USA) Stitch — Data pipelining to our data warehouse (USA) Hubspot — Company/employee and summarized activity data synced (USA) Salesforce — Company/employee and summarized activity data synced (USA) QuickBooks Online — Relevant accounting data synced (USA) Segment — Event hub for company/employee and summarized activity data (USA) RedisCloud — Caching for performance, data temporarily stored (USA) Datadog — Development tools: logging, application performance (USA) Vercel — Frontend cloud-based hosting of application code (USA) ConvertAPI — Customer invoice data converted to PDF for download (USA) Metabase — Data analytics (USA) Fullstory — Event monitoring and diagnostics (USA) Clay — Company/employee and summarized activity data synced (USA) Sentry — Development tool: error handling (USA) Zapier — Development tool; support and account management (USA) OpenAI — Application AI functionality (USA) Churnzero — Support and account management (USA) Intercom — Support and account management (USA)