Version: 1 January 2021
Data Processing Addendum (DPA) based on GDPR template. This Data Processing Addendum (hereinafter the “DPA”) supplements and forms an integral part of the Terms of Service for the use of Semonto, the website and server monitoring tool, product of Coding Mammoth BV (hereinafter the “Terms”) as concluded between You (hereinafter “Controller” and/or “Company”) and Coding Mammoth BV (hereinafter “Processor”). You and Coding Mammoth BV are hereinafter collectively also referred to as “Parties” and separately as a “Party”.
By accepting the terms of this DPA, You represent that You have the authority to bind Controller to this DPA.
WHEREAS
(A) The Company acts as a Data Controller.
(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with Coding Mammoth BV Terms of Service;
1.1.3 “Contracted Processor” means a Subprocessor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “Data Transfer” means:
1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or
1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.9 “Services” means the monitoring services the Processor provides via Semonto.
1.1.10 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2.1 Processor shall:
2.1.1 comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
2.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions. Further details of such processing are set out in SCHEDULE A - DETAILS OF PROCESSING.
2.2 The Company shall instructs Processor to process Company Personal Data.
2.3 By entering into this DPA, Controller hereby authorises and instructs Processor to process Controller Personal Data: (i) to provide the Services and related technical support; (ii) as otherwise permitted or required by Controller’s use of the Services and/or its requests for technical support; (iii) as otherwise permitted or required by the Terms of Service, including this DPA; and (iv) as further documented in any other written instructions that Controller gives to Processor.
2.4 Processor shall promptly notify Controller if Processor is of the opinion that an instruction given by Controller would cause the Processor to act contrary to Data Protection Laws.
2.5 Controller will not share any special category data with Processor for processing. Controller further acknowledges that Processor does not request or require any special category data to provide the Service and does not wish to receive or store any special category data.
2.6 Controller warrants on an ongoing basis that there is, and will be throughout the term of the Terms, a valid legal basis for the processing of Company Personal Data by Processor in accordance with this DPA and the Terms (including any and all instructions issued by Controller from time to time in respect of such processing).
3.1 Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Terms of Service, and to comply with all applicable in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR (hereinafter “Security Measures”). The Security Measures will have regard to the state of the art, the cost of implementation, and the nature, scope, context and purposes of the processing.
4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
4.3 Controller agrees that it is solely responsible for its use of the Services, including: (i) making appropriate use of the Services to ensure a level of security appropriate to the risk in relation to Company Personal Data; (ii) securing any account authentication credentials, systems, and devices it uses to access the Services; and (iii) backing up all Company Personal Data. Controller understands and agrees that Processor has no obligation to protect Company Personal Data that Controller elects to store or transfer outside of Processor’s or any Subprocessors’ systems (e.g. offline or on-premise storage). Controller is solely responsible for evaluating whether the Services and Processor’s commitments under this DPA meet its needs, including with respect to Controller’s compliance with any of its security obligations under the GDPR and/or Data Protection Laws.
5.1 Controller authorises Processor to appoint Subprocessors in accordance with this Section.
5.2 Processor may continue to use those Subprocessors already engaged by Processor as at the date of this DPA.
5.3 Processor shall give Controller prior written notice of the appointment of any new Subprocessor, including reasonable details of the processing to be undertaken by the Subprocessor, by updating the list of its Subprocessors at the following link: list of subprocessors
If, within ten (10) days of receipt of that notice, Controller notifies Processor in writing of any objections (on reasonable grounds) to the proposed appointment:
a) Processor shall use reasonable efforts to make available a commercially reasonable change in the provision of the Service which avoids the use of the proposed Subprocessor; or
b) where such a change cannot be made, either Party may by written notice to the other Party with immediate effect terminate the Terms of Service either in whole or to the extent that it relates to the Service which require the use of the proposed Subprocessor (subject always to the provisions of the Terms of Service).
6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing reasonable technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.2 Processor shall:
6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Data Protection Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Data Protection Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a suspected or actual Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
7.3 Controller is solely responsible for complying with any Data Breach notification requirements that may apply to Controller. Processor’s notification of or response to a Data Breach under this section will not constitute an acknowledgement of fault or liability with respect to the Data Breach.
8.1 Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
8.2 Controller shall give Processor reasonable notice of any audit or inspection to be conducted (which shall in no event be less than ten (10) days’ notice) and shall use its best efforts (and ensure that each of its mandated auditors uses its best efforts) to avoid causing any damage, injury or disruption to Processor’s premises, equipment, personnel, data and business (including any interference with the confidentiality or security of the data of Processor’s other customers, or the availability of Processor’s services to such other customers).
8.3 Controller shall bear any third party costs in connection with any inspection or audit and reimburse Processor for all costs incurred by Processor in connection with any such inspection or audit.
9.1 To the extent that any processing by either Processor or any Contracted Processor of Company Personal Data involves a transfer of data in a country or territory outside the European Economic Area that does not benefit from an adequacy decision by the European Commission (hereinafter “Restricted Transfer”), the Parties agree that:
a) Controller - as ‘data exporter’; and
b) Processor or Subprocessor (as applicable) - as ‘data importer’,
shall enter into the Standard Contractual Clauses in respect of that Restricted Transfer and the associated processing.
9.2 In respect of any Standard Contractual Clauses entered into:
a. Clause 9 of such Standard Contractual Clauses shall be populated as follows:
“The Clauses shall be governed by the law of the Member State in which the data exporter is established.”
b. Clause 11(3) of such Standard Contractual Clauses shall be populated as follows:
“The provisions relating to data protection aspects for sub-processing 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.”
c. Appendix 1 to such Standard Contractual Clauses shall be populated with the corresponding information set out in SCHEDULE A - DETAILS OF PROCESSING; and
d. Appendix 2 to such Standard Contractual Clauses shall be populated as follows:
“The technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) are those established and maintained under the DPA.”
9.3 The Standard Contractual Clauses shall be deemed to come into effect automatically upon the commencement of the relevant Restricted Transfer.
10.1 Subject to this section 10 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
10.2 Controller hereby acknowledges and agrees that, due to the nature of the Services and Company Personal Data processed by Processor, return (as opposed to deletion) of Company Personal Data is not a reasonably practicable option in the circumstances. Having regard to the foregoing, Controller agrees that it is hereby deemed to have irrevocably selected deletion, in preference of return, of Company Personal Data.
10.3 Processor and any Subprocessor may retain Company Personal Data where required by applicable law, for such period as may be required by such applicable law, provided that Processor and any such Subprocessor shall ensure:
the confidentiality of such Company Personal Data; and
that such Company Personal Data is only processed as necessary for the purpose(s) specified in the applicable law requiring its storage and for no other purpose.
11.1 This DPA shall take effect on the later of: (i) the date the Parties entered into the Terms of Service; or (ii) the date this DPA was accepted by Company.
11.2 This DPA forms an integral part of the Terms of Service and remains in force until the Terms of Service expire or terminate, for whatever reason.
12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.
12.3 Miscellanea. In the event of any inconsistency relating to the processing of Company Personal Data between a provision of this DPA and the Terms of Service, the provision of this DPA will prevail. If Data Protection Laws require that this DPA be amended, either Party may propose an amendment and the Parties will enter into negotiations in good faith to reach an agreement ensuring the continued compliance of the DPA with Data Protection Laws.
13.1 This Agreement is governed by the laws of Belgium.
13.2 Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Antwerp, Belgium.
This Schedule A to the DPA includes certain details of the processing of Company Personal Data: (i) as required by Article 28(3) GDPR; and (ii) where applicable in accordance with the DPA, to populate Appendix 1 to the Standard Contractual Clauses.
The subject matter and duration of the processing of Company Personal Data are set out in the Terms and the DPA.
The obligations and rights of Controller are set out in the Terms of Service and the DPA.