Data processing addendum

Data Processing Addendum

This Data Processing Addendum (“Addendum”), applies to agreements between VanillaSoft Inc (“VanillaSoft”) or VanillaSoft Corp (“VanillaSoft”), and entities who subscribe for VanillaSoft’s services and who are subject to Applicable Law (“Subscriber”) (collectively referred to as the “Parties”), sets forth the terms and conditions relating to the privacy, confidentiality and security of Personal Data (as defined below) associated with services to be rendered by VanillaSoft to Subscriber pursuant to the subscription agreement entered into between the Parties (the “Master Agreement”).

1. Definitions

(A)            “Applicable Law” means all applicable European Union (“EU”) or national laws and regulations relating to the privacy, confidentiality, security and protection of Personal Data, including, without limitation: the Canadian Personal Information And Protection of Documents Act (“PIPEDA”), California Consumer Privacy Act (“CCPA”), the European Union (“EU”) General Data Protection Regulation 2016/679 (“GDPR”), with effect from 25 May 2018, and EU Member State laws supplementing the GDPR; the EU Directive 2002/58/EC (“e-Privacy Directive”), as replaced from time to time, and EU Member State laws implementing the e-Privacy Directive, including laws regulating the use of cookies and other tracking means as well as unsolicited e-mail communications.

(B)            “Data Controller” means a person who alone or jointly with others determines the purposes and means of the Processing of Personal Data.

(C)            “Data Processor” means a person who Processes Personal Data on behalf of the Data Controller.

(D)            “Data Security Measures” means technical and organisational measures that are aimed at ensuring a level of security of Personal Data that is appropriate to the risk of the Processing, including protecting Personal Data against accidental or unlawful loss, misuse, unauthorised access, disclosure, alteration, destruction, and all other forms of unlawful Processing, including measures to ensure the confidentiality of Personal Data.

(E)             “Data Subject” means an identified or identifiable natural person to which the Personal Data pertain.

(F)             “Instructions” means this Addendum and any further written agreement or documentation through which the Data Controller instructs the Data Processor to perform specific Processing of Personal Data.

(G)            “Personal Data” means any information relating to an identified or identifiable natural person Processed by VanillaSoft in accordance with Subscriber’s Instructions pursuant to this Addendum; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

(H)            “Personal Data Breach” a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

(I)               “Process”, “Processed”, or “Processing” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(J)             “Services” means the services offered by VanillaSoft and subscribed for by Subscriber under the Master Agreement.

(K)            “Sub-Processor” means the entity engaged by the Data Processor or any further Sub-Processor to Process Personal Data on behalf and under the authority of the Data Controller.

1. Roles and Responsibilities of the Parties

(A)            The Parties acknowledge and agree that Subscriber is acting as a Data Controller, and has the sole and exclusive authority to determine the purposes and means of the Processing of Personal Data Processed under this Addendum, and VanillaSoft is acting as a Data Processor on behalf and under the Instructions of Subscriber.

(B) Subscriber acknowledges that it shall not make Personal Data available to VanillaSoft other than to the extent strictly required in relation to the Services.

(C)            Any Personal Data will at all times be and remain the sole property of Subscriber and VanillaSoft will not have or obtain any rights therein.

III.            Obligation of VanillaSoft

VanillaSoft agrees and warrants to:

(A)            Process Personal Data disclosed to it by Subscriber only on behalf of and in accordance with the instructions of the Data Controller, to the extent strictly necessary to provide the Services (as defined in the Agreement) and Annex 1 of this Addendum, unless VanillaSoft is otherwise required by Applicable Law, in which case VanillaSoft shall inform Subscriber of that legal requirement before Processing the Personal Data, unless informing the Subscriber is prohibited by law on important grounds of public interest. VanillaSoft shall immediately inform Subscriber if, in VanillaSoft’s opinion, an Instruction provided infringes Applicable Law.

(B)            Ensure that any person authorised by VanillaSoft to Process Personal Data in the context of the Services is only granted access to Personal Data on a need-to-know basis, is subject to a duly enforceable contractual or statutory confidentiality obligation, and only processes Personal Data in accordance with the Instructions of the Data Controller.

(C)            VanillaSoft  stores and Processes all data, including Personal Data, in the US. VanillaSoft has self-certified under the Privacy Shield framework.   VanillaSoft has and shall continue to enter into any written agreements as are necessary (in its reasonable determination) to comply with Applicable Law concerning any cross-border transfer of Personal Data, whether to or from VanillaSoft.

(D)            Inform Subscriber promptly and without undue delay of any formal requests from Data Subjects exercising their rights of access, correction or erasure of their Personal Data, their right to restrict or to object to the Processing as well as their right to data portability, and not respond to such requests, unless instructed by the Subscriber in writing to do so.  Taking into account the nature of the Processing of Personal Data, VanillaSoft shall assist Subscriber, by appropriate technical and organisational measures and at Subscriber’s cost, insofar as possible, in fulfilling Subscriber’s obligations to respond to a Data Subject’s request to exercise their rights with respect to their Personal Data.

(E)             Notify Subscriber immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of Personal Data.  Subscriber shall have the right to defend such action in lieu of and on behalf of VanillaSoft.  Subscriber may, if it so chooses, seek a protective order.  VanillaSoft shall reasonably cooperate with Subscriber in such defense.

(F)             Provide reasonable assistance to Subscriber, at Subscriber’s cost, in complying with Subscriber’s obligations under Applicable Law.

(G)            Maintain internal record(s) of Processing activities, copies of which shall be provided to Subscriber by VanillaSoft or to supervisory authorities upon request.

1. Sub-Processing

(A)            VanillaSoft shall not share, transfer, disclose, make available or otherwise provide access to any Personal Data to any third party, or contract any of its rights or obligations concerning Personal Data, unless VanillaSoft has entered into a written agreement with each such third party that imposes obligations on the third party that are the same as those imposed on VanillaSoft under this Addendum.  VanillaSoft shall only retain third parties that are capable of appropriately protecting the privacy, confidentiality and security of the Personal Data.

1. Compliance with Applicable Laws

(A)            Each party covenants and undertakes to the other that it shall comply with all Applicable Laws in the use of the Services.

(B)            Without limiting the above, VanillaSoft is not responsible for determining the requirements of laws applicable to Subscriber’s business or that VanillaSoft’s provision of the Services meet the requirements of such laws. As between the parties, Subscriber is responsible for the lawfulness of the Processing of the Subscriber Personal Data. Subscriber will not use the Services in conjunction with Personal Data to the extent that doing so would violate applicable Data Protection Laws.

(C)            If a Data Subject brings a claim directly against VanillaSoft for a violation of their Data Subject rights in breach of Applicable Laws and such claim does not arise from a breach by VanillaSoft of the terms of this Agreement, Subscriber will indemnify VanillaSoft for any cost, charge, damages, expenses or loss arising from such a claim, to the extent that VanillaSoft has notified Subscriber about the claim and given Subscriber the opportunity to cooperate with VanillaSoft in the defense and settlement of the claim. Subject to the terms of the Agreement, Subscriber may claim from VanillaSoft amounts paid to a Data Subject for a violation of their Data Subject rights caused by VanillaSoft’s breach of its obligations under GDPR.

1. Data Security

(A)            VanillaSoft shall develop, maintain and implement a comprehensive written information security program that complies with Applicable Law and good industry practice.  VanillaSoft’s information security program shall include appropriate administrative, technical, physical, organisational and operational safeguards and other security measures designed to (i) ensure the security and confidentiality of Personal Data; (ii) protect against any anticipated threats or hazards to the security and integrity of Personal Data; and (iii) protect against any Personal Data Breach, including, as appropriate:

1. a)     The encryption of the Personal Data;
2. b)     The ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
3. c)     The ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and
4. d)     A process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures adopted pursuant to this provision for ensuring the security of the Processing.

(B)            VanillaSoft shall supervise VanillaSoft personnel to the extent required to maintain appropriate privacy, confidentiality and security of Personal Data.  VanillaSoft shall provide training, as appropriate, to all VanillaSoft personnel who have access to Personal Data.

(C)            Promptly (and in any event within 90 days) following the expiration or earlier termination of the Master Agreement, VanillaSoft shall return to Subscriber or its designee, if so requested during such period, or if not so requested securely destroy or render unreadable or undecipherable, each and every original and copy in every media of all Personal Data in VanillaSoft’s, its affiliates’ or their respective subcontractors’ possession, custody or control.   In the event applicable law does not permit VanillaSoft to comply with the delivery or destruction of the Personal Data, VanillaSoft warrants that it shall ensure the confidentiality of the Personal Data and that it shall not use or disclose any Personal Data after termination of this Addendum.

VII.          Data Breach Notification

(A)            VanillaSoft shall promptly inform Subscriber in writing of any Personal Data Breach of which VanillaSoft becomes aware.  The notification to Subscriber shall include all available information regarding such Personal Data Breach, including information on:

1. a) The nature of the Personal Data Breach including where possible, the categories and approximate number of affected Data Subjects and the categories and approximate number of affected Personal Data records;
2. b) The likely consequences of the Personal Data Breach; and
3. c) The measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.

VanillaSoft shall cooperate fully with Subscriber in all reasonable and lawful efforts to prevent, mitigate or rectify such Breach.  VanillaSoft shall provide such assistance as required to enable Subscriber to satisfy Subscriber’s obligation to notify the relevant supervisory authority and Data Subjects of a personal data breach under Articles 33 and 34 of the GDPR.

VIII.         Audit

VanillaSoft shall on written request (but not more than once per year, other than in the event of a breach) make available to Subscriber all information necessary to demonstrate compliance with the obligations set forth in this Addendum and, at the Subscriber’s expense, allow for and contribute to audits, including inspections, conducted by Subscriber or another auditor mandated by Subscriber.  Upon prior written request by Subscriber (provided that it shall be not more than once per year other than in the event of a breach), VanillaSoft agrees to cooperate and, within reasonable time, provide Subscriber with: (a) audit reports (if any) and all information necessary to demonstrate VanillaSoft’s compliance with the obligations laid down in this Addendum; and (b) confirmation that no audit, if conducted, has revealed any material vulnerability in VanillaSoft’s systems, or to the extent that any such vulnerability was detected, that VanillaSoft has fully remedied such vulnerability.

1. CCPA

The Parties agree and acknowledge that, as VanillaSoft processes personal information on behalf of Subscriber solely for Subscriber’s business purposes, in providing the Services, VanillaSoft is considered be a service provider for Subscriber under the CCPA. VanillaSoft acknowledges and agrees that it may not retain, use, or disclose personal information made available to it by Subscriber for any purpose, including commercial purposes, other than in connection with performing the Services; and VanillaSoft may not sell such personal information.

1.        Governing Law

This Addendum shall be governed by the laws of the jurisdiction specified in the Agreement.

ANNEX 1: SCOPE OF THE DATA PROCESSING

SCOPE OF THE DATA PROCESSING

This Annex forms part of the Data Processing Addendum between Subscriber and VanillaSoft.

The Processing of Personal Data concerns the following categories of Data Subjects:

(i) Subscriber’s authorised users of the Services; and

(ii) Data Subjects whose Personal Information is entered by the Subscriber.

The Processing concerns the following categories of Personal Data:

(i) For Subscriber’s authorised users of the Services, such information as is reasonably required to:

1. a) facilitate their use of the system through account creation (which may include name, user name, email address, phone number and similar information); and
2. b) monitor their usage of the Services for the purpose of improving the Services and their usage of the Services; and

(ii) Data Subjects whose Personal Information is entered by the Subscriber, such categories of Personal Data as may be entered by Subscriber.

The Processing concerns the following categories of Sensitive Data:

None, unless other contemplated and agreed in writing with Subscriber.

The Processing concerns the following categories of data Processing activities (i.e., purposes of Processing):  

The purpose of processing is use and analysis of the data provided at Subscribers direction.