Data Processing Addendum
Last Revised: 15 August 2018
This Data Processing Addendum (“DPA”) forms part of the Wasabi Technologies Customer Agreement or other written or electronic agreement between Wasabi Technologies and Customer for the purchase of online services from Wasabi Technologies (identified either as “Services” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data.
By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent Wasabi Technologies processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the Services to Customer pursuant to the Agreement, Wasabi Technologies may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
DATA PROCESSING TERMS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and Wasabi Technologies, but is not a Customer with Wasabi Technologies as defined under the Agreement.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Customer Data” means what is defined in the Agreement as “Customer Data” or “Your Data.”
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means 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).
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Security, Privacy and Architecture Documentation” means the Security, Privacy and Architecture Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and made reasonably available by Wasabi Technologies.
“Standard Contractual Clauses” means the agreement executed by and between Customer and wasabi.com, inc. and attached hereto as Schedule 5 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.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Wasabi Technologies is the Processor and that Wasabi Technologies or members of the Wasabi Technologies Group will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
2.3 Wasabi Technologies’s Processing of Personal Data. Wasabi Technologies shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Wasabi Technologies is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 4 (Details of the Processing) to this DPA.
3. RIGHTS OF DATA SUBJECTS
3.1 Data Subject Request. Wasabi Technologies shall, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject to access, correct or delete that person’s Personal Data or if a Data Subject objects to the Processing thereof (“Data Subject Request”). Wasabi Technologies shall not respond to a Data Subject Request without Customer’s prior written consent except to confirm that such request relates to Customer to which Customer hereby agrees. To the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Wasabi Technologies shall upon Customer’s request provide commercially reasonable assistance to facilitate such Data Subject Request to the extent Wasabi Technologies is legally permitted to do so and provided that such Data Subject Request is exercised in accordance with Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Wasabi Technologies’ provision of such assistance.
3.2 Data Subject Request. With effect from 25 May 2018, the following wording will replace Section 3.1 (“Data Subject Request”) in its entirety: Data Subject Requests. Wasabi Technologies shall, to the extent legally permitted, promptly notify Customer if Wasabi Technologies receives a request from a Data Subject to exercise the Data Subject’s right of
access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Wasabi Technologies shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Wasabi Technologies shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Wasabi Technologies is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Wasabi Technologies provision of such assistance.
4. Wasabi Technologies PERSONNEL
4.1 Confidentiality. Wasabi Technologies shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data and have received appropriate training on their responsibilities.
4.2 Reliability. Wasabi Technologies shall take commercially reasonable steps to ensure the reliability of any Wasabi Technologies personnel engaged in the Processing of Personal Data.
4.3 Limitation of Access. Wasabi Technologies shall ensure that Wasabi Technologies’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
4.4 Data Protection Officer. Members of the Wasabi Technologies Group have appointed a data protection officer. The appointed person may be reached at firstname.lastname@example.org.
5.1 Controls for the Protection of Customer Data. Wasabi Technologies shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Wasabi Technologies Security Policy. Wasabi Technologies regularly monitors compliance with these measures.
5.2 Third-Party Certifications and Audits. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Wasabi Technologies shall make available to Customer that is not a competitor of Wasabi Technologies (or Customer’s independent, third-party auditor that is not a competitor of Wasabi Technologies) a copy of Wasabi Technologies’s then most recent third-party audits or certifications, as applicable.
6. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
Wasabi Technologies maintains security incident management policies and procedures and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Wasabi Technologies of which Wasabi Technologies becomes aware (a “Customer Data Incident”). Wasabi Technologies shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Wasabi Technologies deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Wasabi Technologies’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users.
7. RETURN AND DELETION OF CUSTOMER DATA
Wasabi Technologies shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security, Privacy and Architecture Documentation.
8. 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 Wasabi Technologies, 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, Wasabi Technologies’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.
9. EUROPEAN SPECIFIC PROVISIONS
9.1 GDPR. With effect from 25 May 2018, Wasabi Technologies will process Personal Data in accordance with the GDPR requirements directly applicable to Wasabi Technologies’s provision of its Services.
9.2 Data Protection Impact Assessment. With effect from 25 May 2018, upon Customer’s request, Wasabi Technologies shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Wasabi Technologies. Wasabi Technologies shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks to the extent required under the GDPR.
9.3 Transfer mechanisms for data transfers. Wasabi makes available transfer mechanisms to the extent such transfers are subject to such Data Protection Laws and Regulations.
10. LEGAL EFFECT
This DPA shall only become legally binding between Customer and Wasabi Technologies once both parties have signed this document. Signed documents can be sent to Wasabi by emailing the document to email@example.com
The parties’ authorized signatories have duly executed this Agreement:
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