This Data Processing Agreement, including its appendices (the “DPA”) will be effective and replace any previously applicable data processing and security terms as of the DPA Effective Date (as defined below). This DPA forms part of the General Terms and Conditions (available here) together with the Services Terms and Conditions (available here) (hereinafter collectively referred to as: Agreement).

1. Definitions

For purposes of this DPA, the terms below shall have the meanings set forth below. Capitalised terms that are used but not otherwise defined in this DPA shall have the meanings set forth in the Agreement.

1. “DPA Effective Date” means, as applicable, the date on which Customer gave acceptance to this DPA.
2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
3. “Audit Reports” has the meaning given in Section 5.4.4.
4. “Customer Personal Data” means any personal data contained within the data provided to or accessed by GreenSketch by or on behalf of Customer or Customer end users in connection with the Services.
5. “EEA” means the European Economic Area.
6. “EU” means the European Union.
7. “European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway, applicable to the processing of Customer Personal Data under the Agreement.
8. “GDPR” means 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.
9. “Information Security Incident” or Data Breach as defined in the GDPR. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
10. “Standard Contract Clauses” or “SCCs” mean the European Union standard contractual clauses for international transfers from the European Economic Area to third countries.
11. “Security Documentation” means all documents and information made available by GreenSketch under Section 5.4.1 (Reviews of Security Documentation).
12. “Security Measures” has the meaning given in Section 5.1.1 (GreenSketch’s Security Measures).
13. “Services” means the services and/or products to be provided by GreenSketch to Customer under the Agreement.
14. Subprocessors” means third parties authorised under this DPA to process Customer Personal Data in relation to the Services.
15. “Term” means the period from the DPA Effective Date until the end the Agreement.
16. “Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
17. “Transfer Solution” means the Standard Contractual Clauses or another safeguard that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR.
18. The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.

2. Duration of DPA

This DPA will take effect on the DPA Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, GreenSketch’s deletion of all Customer Personal Data as described in this DPA.

3. Processing of Data

1. Roles and Regulatory Compliance; Authorization.
   1. Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
      1. the subject matter and details of the processing are described in Appendix 1;
      2. GreenSketch is a processor of that Customer Personal Data under the European Data Protection Legislation;
      3. Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
      4. each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
   2. Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to GreenSketch that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of GreenSketch as another processor, have been authorised by the relevant controller.
2. Scope of Processing.
   1. Customer’s Instructions. By entering into this DPA, Customer instructs GreenSketch to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorised by the Agreement, including this DPA; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by GreenSketch as constituting instructions for purposes of this DPA.
   2. GreenSketch’s Compliance with Instructions. GreenSketch will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless European Data Protection Legislation to which GreenSketch is subject requires other processing of Customer Personal Data by GreenSketch, in which case GreenSketch will notify Customer (unless that law prohibits GreenSketch from doing so on important grounds of public interest).

4. Data Deletion

1. Deletion on Termination. On expiry of the Term, Customer instructs GreenSketch to delete and/or return all Customer Personal Data (including existing copies) from GreenSketch’s systems in accordance with applicable law as soon as reasonably practicable, unless applicable law requires otherwise.

5. Data Security

1. GreenSketch’s Security Measures, Controls and Assistance.
   1. GreenSketch’s Security Measures. GreenSketch will implement and maintain appropriate technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Personal Data as described in Appendix 2 (the "Security Measures"). GreenSketch may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
   2. Security Compliance by GreenSketch Staff and Subprocessors. GreenSketch will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
   3. GreenSketch’s Security Assistance. GreenSketch will (taking into account the nature of the processing of Customer Personal Data and the information available to GreenSketch) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:
      1. implementing and maintaining the Security Measures in accordance with Section 5.1.1 (GreenSketch’s Security Measures);
      2. complying with the terms of Section 5.2 (Information Security Incidents); and
      3. providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this DPA.
2. Information Security Incidents (data breaches).
   1. Information Security Incident Notification. If GreenSketch becomes aware of an Information Security Incident, GreenSketch will: (a) notify Customer of the Information Security Incident without undue delay (but no later than 48 hours) after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the cause of such Information Security Incident, minimise harm and prevent a recurrence.
   2. Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps GreenSketch recommends Customer take to address the Information Security Incident. The notification will contain at least the following information:
      • date, duration and location of the breach of personal data protection;
      • the nature and scale of the breach, i.e. in particular the categories and the approximate number of data subjects and the categories and the approximate number of personal data entries affected by the breach;
      • the IT system, in which the breach occurred (if the breach occurred in connection with the processing of data in an IT system);
      • estimated time needed to remedy the damage caused by the breach;
      • the nature and scope of the personal data affected by the breach;
      • the categories of data subjects affected by the breach and, where possible, also the data subjects affected by the breach;
      • the possible consequences of the breach, taking into account the consequences for data subjects;
      • the measures taken to minimize the consequences of the breach and the preventive and remedial measures proposed;
      • contact information of the person who may provide additional information on the breach.

Should GreenSketch be unable to provide Customer with all the information referred to above at the same time, it should provide it gradually but without undue delay. 3. Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s), including, but not limited to the notification obligations of article 33 and 34 GDPR towards the competent supervisory authority and data subjects. 4. No Acknowledgement of Fault by GreenSketch. GreenSketch’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by GreenSketch of any fault or liability with respect to the Information Security Incident. 3. Customer’s Security Responsibilities and Assessment. 1. Customer’s Security Responsibilities. Customer agrees that, without prejudice to GreenSketch’s obligations under Section 5.1 (GreenSketch’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents): 1. Customer is solely responsible for its use of the Services, including: 1. making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data; 2. securing the account authentication credentials, systems and devices Customer uses to access the Services; 3. securing Customer’s systems and devices GreenSketch uses to provide the Services; and 4. backing up its Customer Personal Data; and 2. GreenSketch has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of GreenSketch’s and its Subprocessors’ systems (for example, offline or on-premises storage). 2. Customer’s Security Assessment. 1. Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and GreenSketch’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation. 2. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by GreenSketch as set out in Section 5.1.1 (GreenSketch’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data. 4. Reviews and Audits of Compliance 1. Customer may audit GreenSketch’s compliance with its obligations under this DPA and article 28 GDPR up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). GreenSketch will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services. 2. If a third party is to conduct the audit, GreenSketch may object to the auditor if the auditor is, in GreenSketch’s reasonable opinion, not suitably qualified or independent, a competitor of GreenSketch, or otherwise manifestly unsuitable. Such objection by GreenSketch will require Customer to appoint another auditor or conduct the audit itself. 3. To request an audit, Customer must submit a detailed proposed audit plan to the Privacy Officer at privacy.eu@osw.energy at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration and start date of the audit. GreenSketch will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise GreenSketch security, privacy, employment or other relevant policies). GreenSketch will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require GreenSketch to breach any duties of confidentiality. 4. If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and GreenSketch confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report. 5. The audit must be conducted during regular business hours at the applicable premise, subject to the agreed final audit plan and GreenSketch’s safety or other relevant policies, and may not unreasonably interfere with GreenSketch business activities. 6. Customer will promptly notify GreenSketch of any non-compliance discovered during the course of an audit and provide GreenSketch any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA. The audit reports are Confidential Information of the parties under the terms of the Agreement. 7. Any audits are at Customer’s expense. Customer shall reimburse GreenSketch for any time expended by GreenSketch or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at GreenSketch’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. 8. The parties agree that this Section 5.4 shall satisfy GreenSketch’s obligations under the audit requirements of the Standard Contractual Clauses applied to Data Importer under Clause 8.9 of the Standard Contractual Clauses.

6. Impact Assessments and Consultations

1. GreenSketch will (taking into account the nature of the processing and the information available to GreenSketch) reasonably assist Customer in complying with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by inter alia:
   • Making available for review copies of the Audit Reports or other documentation describing relevant aspects of GreenSketch’s information security program and the security measures applied in connection therewith; and
   • Providing the information contained in the Agreement including this DPA.

7. Data Subject Rights

1. Customer’s Responsibility for Requests. During the Term, if GreenSketch receives any request from a data subject in relation to Customer Personal Data, GreenSketch will send their request within seven (7) days to Customer and Customer will be responsible for responding to any such request. GreenSketch will in no event contact the Data Subject, unless additional information is required to identify the relevant Customer (as data controller).
2. GreenSketch’s Data Subject Request Assistance. GreenSketch will (taking into account the nature of the processing of Customer Personal Data) provide Customer with reasonable assistance as necessary for Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR. Customer shall reimburse GreenSketch for any such assistance at GreenSketch’s then-current professional services rates, which shall be made available to Customer upon request.

8. Data Transfers

1. Data Storage and Processing Facilities. GreenSketch may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere GreenSketch or its Subprocessors maintains facilities.
2. Transfers of Data Out of the EEA.
   1. GreenSketch’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), GreenSketch will make such transfers in accordance with the Standard Contractual Clauses, which Standard Contractual Clauses will be incorporated to the DPA by reference and form an integral part of this DPA. Insofar applicable, the elements of the Standard Contractual Clauses that require input from parties are added as Exhibit 4 to this DPA. GreenSketch will provide Customer with Transfer Impact Assessments to facilitate each transfer of personal data to a third country. Customer will approve each Transfer Impact Assessment prior to any transfer of personal data outside the EEA.
   2. Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation GreenSketch reasonably requires Customer to enter into Standard Contractual Clauses or use another Transfer Solution offered by GreenSketch, and reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.
3. Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), GreenSketch will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, Customer and GreenSketch agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) GreenSketch or its relevant Affiliate will act on its own behalf and/or on behalf of GreenSketch’s Affiliates as the data importers.

9. Subprocessors

1. Consent to Subprocessor Engagement. Customer specifically authorises the engagement of GreenSketch’s Affiliates as Subprocessors. In addition, Customer generally authorises the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Standard Contractual Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by GreenSketch of the processing of Customer Personal Data if such consent is required under the Standard Contractual Clauses.
2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at Exhibit 3 (as may be updated by GreenSketch from time to time in accordance with this DPA).
3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, GreenSketch will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this DPA) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. GreenSketch shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
4. Opportunity to Object to Subprocessor Changes. When any new Third Party Subprocessor is engaged during the Term, GreenSketch will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).

Customer may object to any new Third Party Subprocessor by providing written notice to GreenSketch within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. Any objection must be in writing and limited to documented, reasonable grounds that the proposed subprocessor would materially increase risk to Customer Personal Data or would be unable to comply with applicable Data Protection Laws. Customer shall not object unreasonably. In the event Customer reasonably objects to a new Third Party Subprocessor, Customer and GreenSketch will work together in good faith to find a mutually acceptable resolution to address such reasonable objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to GreenSketch.

10. Processing Records

1. GreenSketch’s Processing Records. Customer acknowledges that GreenSketch could be required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which GreenSketch is acting and, where applicable, of such processor’s or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to GreenSketch, and will ensure that all information provided is kept accurate and up-to-date.

11. Liability

1. Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this DPA, and the Standard Contractual Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
2. Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Standard Contractual Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.

12. Third Party Beneficiary

Notwithstanding anything to the contrary in the Agreement, where GreenSketch is not a party to the Agreement, GreenSketch will be a third-party beneficiary of Section 5.4 (Reviews and Audits of Compliance), Section 9.1 (Consent to Subprocessor Engagement) and Section 11 (Liability) of this DPA.

13. Analytics

Customer acknowledges and agrees that the instruction to process Customer Personal Data on behalf of Customer by GreenSketch when providing the Services, includes the anonymising and/or aggregating Customer Personal Data in such a way that such data does not identify any natural person. GreenSketch may use such anonymised and aggregated data to improve GreenSketch’s products and services and for its other legitimate business purposes, and use, publicise or share such data with third parties.

14. Notices

Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by GreenSketch to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to GreenSketch’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.

15. Effect of These Terms

Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this DPA and the remaining terms of the Agreement, this DPA will govern.

DPA Exhibit 1: Description of the Processing

DPA Exhibit 2: Security Measures

GreenSketch shall take and implement the appropriate, relevant industry standard, technical and organizational security and confidentiality measures to ensure the security and confidentiality of Customer Personal Data, and regularly update them, to ensure a level of security appropriate to the risk related the Processing of the Personal Data to protect such data from any unauthorized or unlawful Processing, accidental loss, alteration, destruction or damage, as may be required or directed by Customer from time to time. Required protections include, but are not limited to, the following:

• Role-based access controls;
• Secure hosting and infrastructure;
• Encryption where appropriate;
• Back-up and recovery procedures; and
• Incident and breach response processes.

Further details are described in the GreenSketch Privacy Policy: https://greensketch.ai/de/privacy-policy.

DPA Exhibit 3 – List of Subprocessors and Description of Data Transfers

DPA Exhibit 4 – SCC’s

Standard Contractual Clauses will be incorporated to the Data Processing Agreement (“DPA”) by reference and form an integral part of this DPA. The elements of the Standard Contractual Clauses that require input from parties are added in this Exhibit 4 to this DPA. Processor will provide Controllers with a Transfer Impact Assessment to facilitate each transfer of personal data to a third country.

For the international personal data transfers that are carried out for the performance of the DPA the following shall apply.

For the avoidance of doubt, the Parties agree that the terms of this DPA Exhibit are not intended to amend or modify the Standard Contractual Clauses.

In the event of any conflict between the terms of this DPA and the provisions of the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.