This Data Processing Addendum (“Addendum”) is part of and modifies all of Daysmart Software LLC’s service agreements and Terms of Conditions (hereinafter which agreements, whether expressly named or not, are collectively and severally referred to as “Agreement” or “the Agreement”). This Addendum is by and between Daysmart Software with its principal offices at 3520 Green Court, Suite 250, Ann Arbor, Michigan (“Processor” and/or “Data Importer”), on the one hand, and the Data Controller (“Controller” and/or “Data Exporter”) on the other, the latter either executing this Addendum by written execution or through website forms, or having been deemed a party to the Addendum by having been made aware of its contents and electing not to seasonably object. This Addendum is made and entered into as of the date of the Agreement or May 25th, 2018, whichever is later (the “Effective Date”). Controller and Processor are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
This Addendum applies to the Personal Data of EU residents, collected while they are in the EU, and, additionally, the processing of Personal Data in the EU.
For the purposes of this Addendum and unless otherwise stated, the capitalized terms herein shall have the same meaning as the definitions used in GDPR or in the Standard Contractual Clauses for the Transfer of Personal Data to Data Processors established in Third Countries, which are contained in the annex to the “European Commission decision 2010/87/EC of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries” (“Standard Contractual Clauses”, or “Clauses” attached hereto as Annex 1), or the meaning assigned to such terms in the Agreement.
WHEREAS, the Parties have entered into the Services Agreement for the provision of services described therein, which Services Agreement is incorporated herein by reference as if fully set forth at length below; an
WHEREAS, pursuant to Processor’s provision of services pursuant to the Agreement, Processor may receive custody of or store, process, or gain access to certain data files that may contain Personal Data as defined by GDPR as further described in Appendix 1 hereto; and
WHEREAS, the Parties wish to ensure that adequate safeguards are in place with respect to the protection of the privacy of Data Subjects pursuant to the European Union General Data Protection Regulation (as amended or replaced from time to time) (“GDPR”) and therefore wish to amend the Agreement under the terms and conditions set forth herein; and
WHEREAS, European data protection laws require data exporters in EU/EEA countries to provide adequate protection for transfers of personal data to non-EU/EEA countries, and such protection can be adduced by requiring the data importers to enter into the Standard Contractual Clauses for the Transfer of Personal Data to Third Countries pursuant to Commission Decision 2004/915/EC of 27 December 2004 (as amended or replaced from time to time)
NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
1. AMENDMENTS TO AGREEMENT
1.1 Amendment. The Parties hereby agree that the Services Agreement shall be amended by adding to the Agreement this Addendum.
1.2 Effect of Addendum. All provisions of the Services Agreement not specifically amended hereby shall remain in full force and effect. In the event of any irreconcilable conflict between the provisions of this Addendum and any provisions of the Services Agreement, the provisions of this Addendum shall prevail. Should a provision of this Addendum be or become invalid, the validity of the other provisions of this Addendum shall remain unaffected hereby, and each term and provision hereof shall be valid and enforced to the fullest extent of the law.
1.3 Further Amendments. The provisions of the Agreement, including the provisions of this clause, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions of the Agreement may not be given, without the prior written consent thereto by each Party’s authorized representative. No waiver by either Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, will be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
4.1 Confidentiality. Processor will treat Personal Data of Controller as confidential. Processor will ensure that its personnel engaged in the processing of Personal Data of Controller are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities, and are subject to obligations of confidentiality and that such obligations survive the termination of that persons’ engagement with Processor.
10.1 Counterparts. This Addendum may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.
10.2 Duration and Termination. All notices for termination must be in writing and comply with the procedures for termination set forth in the Agreement. Unless otherwise agreed to in writing by the Parties, this Addendum shall remain in effect until the expiration of the Agreement.
10.3 Survival of Terms. The rights and obligations of either Party that by their nature would continue beyond the termination or expiration of this Addendum, including but not limited to, confidentiality obligations, shall survive termination or expiration of this Addendum.
10.4 Entire Agreement. This Addendum (which shall be incorporated into the Agreement and form an integral part thereof) constitutes the entire agreement and understanding between the Parties and supersedes all prior and contemporaneous verbal and written negotiations, agreements and understandings, if any, on the specific subject matter of this Addendum, and this Addendum cannot be modified except pursuant to written agreement, signed by an authorized representative of each Party.
10.5 Severability. In case any provision in this Addendum shall be invalid, illegal or unenforceable in any jurisdiction that provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
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 data exporter
Name of the data importing organisation: DaySmart Software
Address: 3520 Green Court #250, Ann Arbor, MI 48015
e-mail: [email protected]
(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.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(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.
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.
Third-party beneficiary clause
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect 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, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
Mediation and jurisdiction
(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.
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
Obligation after the termination of personal data processing services
(stamp of organisation)
On behalf of the data importer:
Name (written out in full): Jeff Blackman
Position: Chief Operating Officer
Address: 3520 Green Court #250, Ann Arbor, MI 48105
Other information necessary in order for the contract to be binding (if any):
Signature: /s/ Jeff Blackman
This Appendix forms part of the Clauses and must be completed and signed 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.
Data Exporter is using Data Importer’s software solutions. Data Importer provides a software solution and back-end support for that solution as described in the Services Agreement. The data includes, inter alia, scheduling data and related information pertaining to Data Exporter’s clients or customers.
Data Importer provides a software solution and back-end support for that solution as described in the Services Agreement. The data includes, inter alia, scheduling data and related information pertaining to Data Exporter’s clients or customers.
The personal data transferred concern the following categories of data subjects:
Data Exporter’s clients and end-users.
The personal data transferred concern the following categories of data:
Names, phone numbers, and email addresses of Data Exporter’s clients, and descriptions of services and special notes related to personalization of services for such clients
The personal data transferred concern the following special categories of data:
None are expressly required, although Data Exporter has discretion to enter data into the system.
The personal data transferred will be subject to the following basic processing activities:
Database operations, email functionality, scheduling, and related services.
Name: _Daysmart Software___________
Authorised Signature /s/ Jeff Blackman
This Appendix forms part of the Clauses and must be completed and signed 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):
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, the Data Importer shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
Notwithstanding the above, following specific measures are also in place:
Measures to prevent unauthorized persons from gaining access to data processing systems for processing or using data:
Measures to prevent that unauthorized persons use data processing equipment and –procedures:
Measures that ensure that persons entitled to use a data Processing system gain access only to such data as they are entitled to accessing in accordance with their access rights:
Measures to ensure that personal data cannot be read, copied, modified or deleted without authorisation during electronic transmission, transport or storage on storage media, and that the target entities for any transfer of personal data by means of data transmission facilities can be established and verified.
Measures to ensure that it is possible to check and ascertain whether personal data have been entered into, altered or removed from data processing systems and if so, by whom:
Logging of data entry.
Measures to ensure that personal data processed on behalf of others are processed strictly in compliance with data exporter’s instructions:
Measures to ensure that personal data is protected against accidental destruction or loss:
Measures to ensure that data collected for different purposes can be processed separately. Separation controls implemented.