This Data Processing Addendum ("DPA"), forms part of, and is subject to, the Confluent Subscription Agreement or other written or electronic terms of service or subscription agreement between Confluent, Inc. ("Confluent") and Customer that references this DPA (“Agreement”), and is effective on the effective date of the Agreement. This DPA applies where, and to the extent that, Confluent processes Personal Data on behalf of Customer when providing Services under the Agreement. The DPA does not apply where Confluent is the Data Controller. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
2. Relationship with the Agreement
2.1 The parties agree that this DPA shall replace any existing DPA or other data protection provisions the parties may have previously entered into in connection with the Services.
3. Scope of this DPA
3.1 This DPA applies where and only to the extent that Confluent processes Personal Data that originates from the EEA (including United Kingdom) and/or that is otherwise subject to EU Data Protection Law on behalf of Customer in the course of providing Services to the Customer pursuant to the Agreement.
4. Roles and Scope of Processing
4.1. As between Confluent and Customer, Customer is the Data Controller of Customer Data and Confluent shall process Customer Data only as a Data Processor acting on behalf of Customer.
4.2. Customer agrees that (i) it will comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to Confluent; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary for Confluent to process Customer Data pursuant to the Agreement and this DPA.
4.3. Confluent will process Customer Data only for the purpose of providing the Services and in accordance with Customer’s documented lawful instructions, as set forth in the Agreement and this DPA. The parties agree that the Customer’s complete and final instructions with regard to the nature and purposes of the processing are set out in this DPA. Processing outside the scope of these instructions (if any) will require prior written agreement between Customer and Confluent with additional instructions for processing.
5.2. Where Confluent authorizes any Sub-processor as described in Section 1:
5.3 Confluent will provide Customer with reasonable prior notice on its website if it intends to make any changes to its Sub-processors. Customer may object in writing to Confluent’s appointment of a new Sub-processor, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
6. Security Measures and Security Incident Response
6.1 https://www.confluent.de/cloud-enterprise-security-addendum, as updated or replaced from time to time in accordance with Section 2.Confluent has implemented and will maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data ("Security Measures"). The Security Measures applicable to the Services are set forth at
6.2. Customer is responsible for reviewing the information made available by Confluent relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that Confluent may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
6.3. Confluent restricts its personnel from processing Customer Data without authorization by Confluent as set forth in the Security Measures, and shall ensure that any person who is authorized by Confluent to process Customer Data is under an appropriate obligation of confidentiality.
6.4. Notwithstanding the above, Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services. Customer may elect to implement technical or organisation measures in relation to Customer Data, which may include (i) protecting account authentication credentials; (ii) protecting the security of Customer Data when in transit to and from the Services; (iii) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (iv) taking any appropriate steps to securely encrypt or pseudonymise any Customer Data uploaded to the Services.
6.5. Upon becoming aware of a Security Incident, Confluent will notify Customer without undue delay and will provide information relating to the Security Incident as it becomes known or as is reasonably requested by Customer. Confluent will also take reasonable steps to mitigate and, where possible, to remedy the effects of, any Security Incident.
7. Audit Reports
7.1 Customer acknowledges that Confluent is regularly audited against SOC 2 and 3 standards by independent third party auditors. Upon request, Confluent shall supply a summary copy of its audit report(s) ("Report") to Customer, which reports shall be subject to the confidentiality provisions of the Agreement. Confluent shall also respond to any written audit questions submitted to it by Customer provided that Customer shall not exercise this right more than once per year.
7.2Customer agrees to the provision of the Report by Confluent in fulfilment of any audit cooperation responsibilities that may apply to Confluent under Data Protection Laws.
8. International Transfers
8.1. Confluent may transfer and process Customer Data anywhere in the world where Confluent, its Affiliates or its Sub-processors maintain data processing operations. Confluent will at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
8.2The Model Clauses will apply, by incorporation into this DPA, to Customer Data that originates inside the European Economic Area (including United Kingdom) ("EEA"), and/or or Switzerland and that is transferred outside the EEA and/or Switzerland, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for Personal Data (as described in the GDPR).
8.3Notwithstanding the foregoing Section 8.2, the parties agree that in the event Confluent achieves self-certification under Privacy Shield or adopts another alternative data export solution (as recognized under EU Data Protection Laws), then, at the option of the parties, the Model Clauses will may cease to apply with effect from the date that Confluent implements such new data export solution.
9. Return or Deletion of Data
9.1 Upon termination or expiration of the Agreement, Confluent shall (at Customer's election) delete or return to Customer all Customer Data in its possession or control in accordance with the terms of the Agreement. This requirement shall not apply to the extent Confluent is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Confluent shall securely isolate and protect from any further processing, except to the extent required by law.
10.1 To the extent that Customer is unable to independently access the relevant Customer Data within the Services and provided that Customer has configured the Services in accordance with Confluent’s recommendations, Confluent shall (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to Confluent, Confluent shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Confluent is required to respond to such a request, Confluent will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
10.2 If a law enforcement agency sends Confluent a demand for Customer Data (for example, through a subpoena or court order), Confluent will attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Confluent may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then Confluent will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Confluent is legally prohibited from doing so.
10.3 To the extent Confluent is required under EU Data Protection Law, Confluent will (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments and prior consultations with data protection authorities as required by law.
11.1 For the avoidance of doubt, any claim or remedies the Customer may have against Confluent, any of its Affiliates and their respective employees, agents and sub-processors arising under or in connection with this DPA, including: (i) for breach of this DPA; (ii) as a result of fines (administrative, regulatory or otherwise) imposed upon Customer; and (iii) under EU Data Protection Law, including any claims relating to damages paid to a data subject, will be subject to any limitation of liability provisions (including any agreed aggregate financial cap) that apply under the Agreement. Customer further agrees that any regulatory penalties incurred by Confluent in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Confluent’s liability under the Agreement as if it were liability to the Customer under the Agreement.
11.2 . Any claims against Confluent or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
11.3 No one other than a party to this DPA, their successors and permitted assignees shall have any right to enforce any of its terms.
11.4 This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
11.5 Customer acknowledges that Confluent may disclose the privacy provisions in this DPA to the U.S. Department of Commerce, the Federal Trade Commission, a European supervisory authority, or any other U.S. or EU judicial or regulatory body upon their lawful request.
11.6 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
11.7 The provisions of this DPA are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of this DPA shall remain in full force and effect.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
THE PARTIES HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix.
For the purposes of the Clauses:
2. Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
3. Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
4. Obligations of the data exporter
The data exporter agrees and warrants
5. Obligations of the data importer
The data importer agrees and warrants:
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
6.3 The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
6.4 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
7. Mediation and jurisdiction
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8. Cooperation with supervisory authorities
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
9. Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
10. Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
11.2 The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
12. Obligation after the termination of personal data processing services
12.1 The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
This Appendix forms part of the Clauses and must be completed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is (please specify briefly activities relevant to the transfer):
The data exporter is the legal entity that is identified as "Customer" in the DPA.
The data importer is (please specify briefly activities relevant to the transfer):
The data importer is Confluent, Inc. Confluent provides a distributed event streaming platform online which enables its customers to access data as real-time streams.
The personal data transferred concern the following categories of data subjects (please specify):
Data subjects are defined in Section 4.4 of the DPA.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Categories of data are defined in Section 4.4 of the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The Service is not designed to require the submission of special categories of Personal Data except as those defined in Section 4.4 of the DPA. To the extent such data is submitted to the Service, apart from those defined in Section 4.4 of the DPA, it is determined and controlled by data exporter in its sole discretion.
The personal data transferred will be subject to the following basic processing activities (please specify):
The purpose of the processing is set out in Section 4.4 of the DPA.
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The security measures are described at https://www.confluent.de/cloud-enterprise-security-addendum.
This Appendix forms part of the Clauses and must be completed by the parties.
This Appendix sets out the parties' interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.