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DATA PROCESSING ADDENDUM
Effective: June 17, 2021
1. INTRODUCTION
This GDPR Data Processing Addendum (“DPA”, “Data Processing Addendum’, “Addendum”) forms part of the master Terms of Service Agreement available at https://jirachecklist.com (“Agreement”), entered into by and between _____________________________________________________ (“You”, or “Customer”, “Controller”) and Railsware Products Studio, Inc. (“Smart Checklist”, “Processor”), in accordance to which Customer has accessed Smart Checklist’s Application Services as outlined in the applicable Data Processing Agreement (DPA). The main goal of this DPA is to demonstrate agreement between the two parties in terms of the processing of Personal Data in compliance with the requirements of Data Protection Legislation as provided below.
This DPA is an amendment to the Agreement and is effective through its incorporation into the Agreement, which is specified in the Agreement. Once this DPA is incorporated into the Agreement, it will form a part of the Agreement.
2. DEFINITIONS
“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; where the purposes and means of such processing are determined by Union or Member State law, the Controller or the specific criteria for its nomination may be provided for by Union or Member State law.
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“Railsware Affiliates” include affiliates, and related and associated persons of Railsware Products Studio, Inc.
3. DATA PROCESSING
3.1. Types of Information
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Personal Data will be processed for the duration of the Agreement, subject to Section 4 of this DPA.
4. OBLIGATIONS OF PROCESSOR
4.1. Data processing
Smart Checklist as the Processor agrees and warrants to process Personal Data only on behalf of the Controller and in compliance with its instructions and the Data Processing Addendum unless the instructions are unlawful; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Controller of its inability to comply, in which case the Controller is entitled to suspend the transfer of data and/or terminate the contract.
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Upon termination or expiration of the Agreement or upon Customer’s request, Smart Checklist will delete or return to Customer all individual- and account-related Personal Data that is in its possession or control (including any Data subcontracted to a third party for processing). This requirement will not apply to the extent that Smart Checklist is required by any EU (or any EU Member State) law to retain some or all of the Data, in which event Smart Checklist will isolate and protect the Data from any further processing except to the extent required by such law.
5. COMPLIANCE
Smart Checklist shall, upon Customer request (not to exceed one request per calendar year) by email to smartchecklist@railsware.com, demonstrate compliance with the obligations set out in this DPA in writing. If the information Smart Checklist provides, in Customer’s reasonable judgement, is not sufficient to confirm Smart Checklist’s compliance with the terms of this Agreement, then the GDPR compliant Customer or an accredited and GDPR compliant third-party audit firm that is not a competitor of Smart Checklist and other Railsware Affiliates agreed to by both Customer and Smart Checklist may audit Smart Checklist’s compliance with the terms of this Agreement during regular business hours in a manner that is not disruptive to Smart Checklist’s business, upon reasonable advance notice to Smart Checklist of no less than 60 days and subject to reasonable confidentiality procedures. The Controller is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Smart Checklist expends for any such audit, in addition to the rates for support services performed by Smart Checklist and any expenses incurred by Smart Checklist in complying with this Agreement. Before the commencement of any such audit, the Controller and Smart Checklist shall mutually agree upon the timing, duration and scope of the audit, which shall not involve physical access to the servers from which the data processing services are provided. You shall promptly notify Smart Checklist of information regarding any non-compliance discovered during the course of an audit. The Controller may not audit Smart Checklist more than once annually.
6. GOVERNING LAW
This Addendum shall be governed by the law of the Member State in which the Data Subject is established.
7. MISCELLANEOUS
In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail.
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Signature …………………………………….………..
Annex 1
Standard Contractual Clauses (processors)
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 entity identified as “Customer” in the DPA (the “data exporter”)
and
Railsware Products Studio, Inc. (the “data importer”)
each a “party”; together “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 1.
Clause 1
Definitions
For the purposes of the Clauses:
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(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 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.
Clause 3
Third-party beneficiary clause
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.
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.
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.
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.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
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(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer1
The data importer agrees and warrants:
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(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
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.
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. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
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.
Clause 7
Mediation and jurisdiction
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:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
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.
Clause 8
Cooperation with supervisory authorities
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.
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.
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).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 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.
Clause 11
Subprocessing
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.
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.
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.
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.
Clause 12
Obligation after the termination of personal data processing services
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.
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.
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Signature …………………………………….………..
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
Data exporter
The data exporter is the entity identified as “Customer” in the DPA
Data importer
The data importer is Railsware Products Studio, Inc. , a provider of web services.
Data subjects
Authorized Users of Smart Checklist Application;
Employees of the Data Exporter;
Consultants of the Data Exporter;
Contractors of the Data Exporter;
Agents of the Data Exporter;
Customers of the Data Exporter; and/or
Third parties with which the Data Exporter conducts business.
Categories of data
The Personal Data transferred may include, but is not limited to the following categories of personal data:
Business contact information (e.g., name, phone number, e-mail address, and physical address);
Processing operations
The objective of the processing of Personal Data by Data Importer is provision of the Services initiated by Customer from time to time.
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Direct data collection (i.e., data are collected directly from individuals or recorded via a system)
Data acquired from other sources or third parties (i.e., data are received from an external system or third-party source)
Parsing, formatting or transformation (i.e., data are read and restructured, reformatted or specific types of data are extracted to make them easier to Process)
Presentation, access, reading, use or copy (i.e., data are retrieved and processed by presenting them to users, accessed by system users or processes, or otherwise accessed, used or copied)
Update (i.e., changes to the values in an existing data setCollection, storage, retrieval and other processing operations necessary to provide, maintain and update the Application for the Data Exporter’s use;
Storage (i.e., data are hosted or stored as a structured or unstructured data set; the data set may be partitioned and stored in multiple locations for performance, scalability or reliability reasons; includes data sets stored for archive or back-up purposes)
Deletion (i.e., removes the data permanently)
Disclosure by transmission, dissemination or otherwise making available data exporter’s data as necessary to provide the services in accordance with the data exporter’s instructions;
Disclosure as compelled by law
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Processor will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data transferred to Processor as described in the Smart Checklist's Security Practices, including but not limited to:
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