Databox Inc. Data Processing Agreement
Last revised on July 11, 2018, effective as of May 25, 2018
If the Customer entity entering into this DPA has executed an order form or statement of work with Databox pursuant to the Agreement (an “Ordering Document”), but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document and applicable renewal Ordering Documents. If the Customer entity entering into this DPA is neither a party to an Ordering Document nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity that is a party to the Agreement executes this DPA.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the GDPR, together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time. The terms “process”, “processes” and “processed” will be construed accordingly.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the clauses attached hereto as Exhibit 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
2. Undertakings regarding personal data
a. Each party agrees that personal data shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction with respect to each other’s personal data.
b. Personal Data shall remain the property of the disclosing party. Databox acknowledges that customer is the controller and maintains control over data subject’s personal data.
c. Databox will process customer’s personal data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written instructions from the customer that are mutually agreed upon in writing. Databox agrees that:
i. it will implement and maintain a reasonable and appropriate security program comprising adequate security, technical and organizational measures to protect against unauthorized, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, customer personal data;
ii. it will not modify, alter, delete, publish or disclose any customer personal data to any third party, nor allow any third party to process such personal data on Databox’ behalf unless the third party is bound to similar confidentiality and data handling provisions;
iii. only its personnel who “need-to-know” will be given access to customer personal data to the extent necessary to perform its obligations under the ToS. It shall provide adequate training to its staff and ensure that they comply with the obligations in this DPA; and
iv. it will only process customer personal data to the extent necessary to perform its obligations under the ToS, upon written instructions of the customer (only as mutually agreed upon), and in accordance with applicable laws.
d. Upon termination of your account Databox will delete, destroy, or anonymize the personal data in accordance with our standard backup and retention policy per the ToS, normally, no later than 60 days, unless we are required to retain personal data due to Union, Member State or United States laws; in which case Databox reserves the right to retain personal data.
e. Databox shall not transfer any customer personal data outside of the US or to other locations not deemed to be “adequate” under EU law without providing reasonable notice under the ToS to the customer.
f. The parties acknowledge that customer may from time to time be in possession of personal data relating to Databox’ personnel. Databox warrants that it has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required under any applicable law in order to enable: (i) the disclosure of Databox’ personal data to customer; and (ii) further processing of such Databox personal data by customer.
3. Customer undertakings and Databox’ assistance
a. Customer warrants that it has all necessary rights to provide to Databox the personal data for processing in connection with the provision of the Databox Services.
b. To the extent required by applicable law, customer is responsible for ensuring that any data subject consents that may be necessary to this processing are obtained, and for ensuring that a record of such consents is maintained, including any consent to use personal data that is obtained from third parties. Should such consent be revoked by a data subject, customer is responsible for communicating the fact of such revocation to Databox, and Databox remains responsible for implementing any customer instruction with respect to the further processing of that personal data, or, as may be in accordance with any of Databox’ legal obligations.
c. Customer understands, as a controller, that it is responsible (as between customer and Databox) for:
i. determining the lawfulness of any processing, performing any required data protection impact assessments, and accounting to regulators and individuals, as may be needed;
ii. making reasonable efforts to verify parental consent when data is collected on a data subject under 16 years of age;
iii. providing relevant privacy notices to data subjects as may be required in your jurisdiction, including notice of their rights and provide the mechanisms for individuals to exercise those rights;
iv. responding to requests from individuals about their data and the processing of the same, including requests to have personal data altered, corrected, or erased, and providing copies of the actual data processed;
v. implementing your own appropriate technical and organizational measures to ensure and demonstrate processing in accord with this DPA;
vi. notifying individuals and any relevant regulators or authorities of any incident as may be required by law in your jurisdiction.
d. Databox shall assist the customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible (in Databox’ sole determination and discretion), in fulfilling customer’s obligations to respond to individuals’ requests to exercise rights under the GDPR.
f. maintain an up-to-date list of its sub-processors, which it will update with the details of any change in sub-processors at least 10 days prior to any change; and (b) Databox will impose data protection terms on any sub-processor it engages with as required to protect customer’s personal data to the standard required by the GDPR. Customer may object to Databox’ appointment or replacement, provided such objection is based on reasonable grounds related to data protection. In such event, Databox will either not appoint or replace the sub-processor or if that is not possible, customer may suspend or terminate the Databox service.
g. On an annual basis, Databox will procure an internal audit of its code base and systems to demonstrate compliance with its obligations under this DPA. Upon written request, Databox shall make available to the customer information reasonably necessary to demonstrate compliance with its obligations under this DPA, including an executive summary of its audit.
4. Incident Management
a. When either party becomes aware of an incident that impacts the processing of personal data, it shall promptly notify the other about the incident and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
b. Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about an incident. Where the incident is reasonably likely to require a data breach notification under applicable laws, the party responsible for the incident shall notify the other without undue delay of having become aware of such an incident.
c. Any notifications made under this section shall be made to firstname.lastname@example.org (when made to Databox) and to our point of contact with you (when made to the customer), and shall contain:(i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
5. Liability and Indemnity
a. Each party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the indemnified party and arising directly or indirectly out of or in connection with a breach of this DPA.
6. Duration and Termination
a. This DPA shall come into effect on May 25, 2018 and shall continue until it is changed or terminated in accordance with the ToS.
b. Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.