GDPR Data Processing Agreement
The parties agree as follows:
1. Definitions
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
“Authorized Affiliate” means any of Subscriber Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.
“Controller” means an entity that determines the purposes and means of the processing of Personal Data.
“Subscriber Data” means any data that ProjectLocker and/or its Affiliates processes on behalf of Subscriber in the course of providing the Services under the Agreement.
“Data Protection Laws” means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
“EU Data Protection Law” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
“Personal Data” means any Subscriber Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
“Privacy Shield” means the EU-US and Swiss-US Privacy Shield Frameworks, as administered by the U.S. Department of Commerce.
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of 12 July 2016 pursuant to the Directive, details of which can be found at www.privacyshield.gov/eu-us-framework.
“Processor” means an entity that processes Personal Data on behalf of the Controller.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly.
“Security Breach” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.
“Services” means any product or service provided by ProjectLocker to Subscriber pursuant to and as more particularly described in the Agreement.
“Sub-processor” means any Processor engaged by ProjectLocker or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any ProjectLocker Affiliate.
“Data Controller,” “Data Processor,” “Data Subject,” “Commission,” “Member State,” and “Supervisory Authority” shall have the meaning given to them in Chapter 1, Article 4 of the GDPR and their cognate terms shall be construed accordingly.
2. Scope, Duration, and Applicability of this DPA
2.1 This DPA applies where and only to the extent that ProjectLocker processes Personal Data on behalf of the Subscriber in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
2.2 Role of the Parties. As between ProjectLocker and Subscriber, Subscriber is the Controller of Personal Data and ProjectLocker shall process Personal Data only as a Processor on behalf of Subscriber. Nothing in the Agreement or this DPA shall prevent ProjectLocker from using or sharing any data that ProjectLocker would otherwise collect and process independently of Subscriber’s use of the Services.
2.3 Subscriber Obligations. Subscriber agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to ProjectLocker; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for ProjectLocker to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 ProjectLocker Processing of Personal Data. As a Processor, ProjectLocker shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Subscriber to the extent they are consistent with the terms of this Agreement and only in accordance with Subscriber’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Subscriber’s complete and final instructions to ProjectLocker in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Subscriber and ProjectLocker.
2.5 Nature of the Data. ProjectLocker handles Subscriber Data provided by Subscriber. Such Subscriber Data may contain special categories of data depending on how the Services are used by Subscriber. The Subscriber Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Subscriber; (ii) to provide Subscriber and technical support to Subscriber; and (iii) disclosures as required by law or otherwise set forth in the Agreement.
2.6 ProjectLocker Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Subscriber acknowledges that ProjectLocker shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, ProjectLocker is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
2.7 Duration of the Processing. Subject to Section 8 of the DPA, ProjectLocker will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
3. Sub-processing
3.1 Authorized Sub-processors. Subscriber agrees that ProjectLocker may engage Sub-processors to process Personal Data on Subscriber’s behalf. The Sub-processors currently engaged by ProjectLocker and authorized by Subscriber are listed in Paragraph 10.
3.2 Sub-processor Obligations. ProjectLocker shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause ProjectLocker to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. ProjectLocker shall provide Subscriber reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.
3.4 Objection to Sub-processors. Subscriber may object in writing to ProjectLocker’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying ProjectLocker promptly in writing within five (5) calendar days of receipt of ProjectLocker’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by ProjectLocker without the use of the objected-to-new Sub-processor.
4. Security
4.1 Security Measures. ProjectLocker shall implement and maintain appropriate technical and organizational security measures to protect Personal Data from Security Breaches and to preserve the security and confidentiality of the Personal Data, in accordance with ProjectLocker’s security standards described in Paragraph 11 (“Security Measures”).
4.2 Data Subject Rights. ProjectLocker shall assist Subscriber by implementing appropriate technical measures, insofar as tis is possible, for Subscriber to comply with its obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws. These measures include, notifying Subscriber of requests from Data Subjects under Data Protection Laws and ensuring that requests are responded to only on documented instructions from Subscriber. Upon becoming aware of a Personal Data Breach affecting Personal Data, ProjectLocker shall notify Subscriber of such Breach to permit Subscriber to comply with its obligations with respect to Personal Data and Data Subjects.
4.3 Confidentiality of Processing. ProjectLocker shall ensure that any person who is authorized by ProjectLocker to process Personal Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
4.4 Security Breach Response. Upon becoming aware of a Security Breach, ProjectLocker shall notify Subscriber without undue delay and shall provide timely information relating to the Security Breach as it becomes known or as is reasonably requested by Subscriber. ProjectLocker will use reasonable efforts to identify the cause of such Security Breach and shall promptly and without undue delay: (a) investigate the Security Breach and provide Subscriber with information about the Security Breach, including if applicable, such information a Data Processor must provide to a Data Controller under Article 33(3) of the GDPR to the extent such information is reasonably available; and (b) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Breach to the extent the remediation is within ProjectLocker’s reasonable control. The obligations herein shall not apply to any breach that is caused by Subscriber or its Authorized Affiliates. ProjectLocker’s obligation to report or respond to a Security Breach under this Section is not and will not be construed as an acknowledgement by ProjectLocker of any fault or liability with respect to the Security Breach.
4.5 Updates to Security Measures. Subscriber acknowledges that the Security Measures are subject to technical progress and development and that ProjectLocker 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 Subscriber.
5. Security Reports and Audits
ProjectLocker shall maintain records of its security standards. Upon Subscriber’s written request, ProjectLocker shall provide (on a confidential basis) copies of relevant external certifications, audit report summaries and/or other documentation reasonably required by Subscriber to verify ProjectLocker’s compliance with this DPA. ProjectLocker shall further provide written responses (on a confidential basis) to all reasonable requests for information made by Subscriber, including responses to information security and audit questionnaires, that Subscriber (acting reasonably) considers necessary to confirm ProjectLocker’s compliance with this DPA, provided that Subscriber shall not exercise this right more than once per year.
6. International Transfers
6.1 Processing Locations. ProjectLocker stores and processes EU Data (defined below) in data centers located inside and outside the European Union. All other Subscriber Data may be transferred and processed in the United States and anywhere in the world where Subscriber, its Affiliates and/or its Sub-processors maintain data processing operations. ProjectLocker shall implement appropriate safeguards to protect the Personal Data, wherever it is processed, in accordance with the requirements of Data Protection Laws.
6.2 Transfer Mechanism: Notwithstanding Section 6.1, to the extent ProjectLocker processes or transfers (directly or via onward transfer) Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland (“EU Data”) in or to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, the parties agree that ProjectLocker shall be deemed to provide appropriate safeguards for such data by virtue of having certified its compliance with the Privacy Shield and ProjectLocker shall process such data in compliance with the Privacy Shield Principles. Subscriber hereby authorizes any transfer of EU Data to, or access to EU Data from, such destinations outside the EU subject to any of these measures having been taken.
7. Return or Deletion of Data
Within sixty (60) days of the deactivation of the Services, all Personal Data shall be deleted or returned to the Controller at the choice of the Controller, save that this requirement shall not apply to the extent ProjectLocker is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data ProjectLocker shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8. Cooperation
8.1 To the extent that Subscriber is unable to independently access the relevant Personal Data within the Services, ProjectLocker shall (at Subscriber’s expense) taking into account the nature of the processing, provide reasonable cooperation to assist Subscriber by appropriate technical and organizational measures, in so far as is possible, 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 ProjectLocker, ProjectLocker shall not respond to such communication directly without Subscriber’s prior authorization, unless legally compelled to do so. If ProjectLocker is required to respond to such a request, ProjectLocker shall promptly notify Subscriber and provide it with a copy of the request unless legally prohibited from doing so.
8.2 To the extent ProjectLocker is required under Data Protection Law, ProjectLocker shall (at Subscriber’s expense) provide reasonably requested information regarding ProjectLocker’s processing of Personal Data under the Agreement to enable the Subscriber to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9. Miscellaneous
9.1 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.
9.2 This DPA is a part of and incorporated into the Agreement so references to “Agreement” in the Agreement shall include this DPA.
9.3 In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise.
9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
9.5 The terms and conditions of this DPA may be changed by ProjectLocker to reflect changes in Data Protection Laws without Subscriber’s authorization.
9.6 Should any provision of this DPA be invalid or unenforceable, the remainder shall remain valid and in full force.
9.7 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, and all DPAs between Authorized Affiliates and ProjectLocker, 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. For the avoidance of doubt, ProjectLocker’s and its Affiliates’ total liability for all claims from the Subscriber and all of its Authorized Affiliates arising out of or related to the Agreement and all DPAs shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Subscriber and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Subscriber and/or to any Authorized Affiliate that is a contractual party to any such DPA.
10. Sub-processors
A list of current sub-processors is enumerated in the ProjectLocker Privacy Policy.
11. Security Measures
An overview of ProjectLocker security measures can be found on the ProjectLocker security page.