This Data Processing Agreement (“Agreement”) forms part of the Contract for Services (“Principal Agreement“) between_____________________(the “Company”) and Diigo Inc. (the “Data Processor”. Awesome Screenshot is a product of Diigo Inc.) (together as the “Parties”).
Data Processing Agreement
(A) The Company acts as a Data Controller.
(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;
1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;
1.1.3 “Contracted Processor” means a Subprocessor;
1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.5 “EEA” means the European Economic Area;
1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.7 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.8 “CCPA” means the California Consumer Privacy Act of 2018 and any legislation or regulation that amends, replaces, or re-enacts it.
1.1.9 “Data Transfer” means:
18.104.22.168 a transfer of Company Personal Data from the Company to a Contracted Processor; or
22.214.171.124 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
1.1.10 “Services” means the “Awesomescreenshot.com” services the Company provides.
1.1.11 “Subprocessor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
2.1 Scope of DPA.
This DPA applies to Diigo's processing of Personal Data to provide the Services to Customer pursuant to the Agreement.
The parties agree that Diigo acts as a processor under Data Protection Law and/or service provider under CCPA for Customer in providing the Services to Customer.
2.3 Processing Activities.
2.3.1 Subject Matter of Processing
The subject matter of the processing is the Personal Data submitted to the Services by Customer pursuant to the Agreement.
2.3.2 Duration of Processing
The processing will continue until the expiration or termination of the Agreement, or as otherwise determined by Customer by deleting Personal Data from its account.
2.3.3 Nature and Purpose of Processing
Processing by Diigo to provide the Services to Customer pursuant to the Agreement.
2.3.4 Types of Personal Data
Personal Data provided to Diigo by Customer or its Authorized Users, including:
- Name, email address, and other account data;
- Video, audio, transcript data, and comments containing Personal Data;
- Transaction logs for transactions conducted by users using the Service;
- Information about the hardware and software used to access the Service;
- Information and analytics about use of the Service;
- Employee authentication information, such as user ID and department information;
- Other Personal Data uploaded or submitted by Customer or Authorized Users to the Services.
2.3.5 Categories of Data Subjects include Employees and other Authorized Users of Customer and any other individual whose Personal Data is uploaded or submitted by Customer or Authorized Users to the Services.
3. Processing of Company Personal Data
3.1 Processor shall:
3.1.1 process Personal Data only on documented instructions from Customer, including transfers of Personal Data to a third country or an international organization, unless required to do so by applicable law to which Diigo is subject, in which a case Diigo will inform Customer of the legal requirement before processing, unless prohibited by law;
3.1.2 ensure that persons authorized to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
3.1.3 implement appropriate technical and organizational measures, designed to protect Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed and to ensure a level of security appropriate to the risk;
3.1.4 respect the conditions for engaging other processors as required by applicable Data Protection Law;
3.1.5 to assist the Customer as much as possible by appropriate technical and organizational measures, taking into account the nature of the processing, so that the Customer can fulfill its legal obligations as a controller and respond to requests to exercise the rights of data subjects in accordance with the applicable data protection laws;
3.1.6 assist the Customer in ensuring compliance with its legal obligations under applicable data protection laws, taking into account the nature of the processing and the information available to Diigo, namely (i) the security of the processing, (ii) notification and communication of security incidents, (iii) data protection impact assessments, and (iv) prior consultation with applicable supervisory authorities;
3.1.7 at Customer's choice, delete or return all Personal Data to Customer after the end of the provision of the Services, and delete existing copies unless applicable law requires storage of Personal Data;
3.1.8 make available to Customer all information necessary to demonstrate compliance with its obligations under applicable Data Protection Law and allow for and assist with audits in accordance with Section 6 below, in each case at Customer's expense; and
3.1.9 inform Customer if, in its opinion, an instruction infringes applicable Data Protection Law.
3.2 Customer Instructions. Customer instructs Diigo to process Personal Data in accordance with the documented provisions of this DPA and the Agreement and as otherwise required for the provision of the Services to the Customer. The Customer's instructions to Diigo regarding the processing of personal data will comply with all applicable laws, including data protection laws.
3.3 Controller Authorization. If Customer is a processor, Customer warrants to Diigo that Customer's instructions and actions with respect to Personal Data, including its appointment of Diigo as a subprocessor, have been authorized by the relevant controller.
4. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5.1 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, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
5.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6.1 General Authorization.
Customer hereby grants Diigo a general authorization to engage Subprocessors subject to the terms of this DPA and the Agreement, and Diigo will notify the Customer of any anticipated changes regarding the insertion If the Customer raises a reasonable written objection to the new Sub-processor within 10 days of receipt of the notice and Diigo chooses not to propose an alternative, the Customer may terminate the Agreement upon 30 days prior notice to Diigo.
6.2 Subprocessor Requirements.
Prior to the engagement of a Subprocessor, Diigo will enter into a written agreement with the Subprocessor containing at least the same data protection obligations as those set out in this DPA, including providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of applicable Data Protection Law. If a Subprocessor fails to fulfill its data protection obligations, Diigo will be liable to Customer for the performance of that Subprocessor's obligations.
7. Data Subject Rights
7.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 Processor shall:
7.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
7.2.2 ensure that it does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach
8.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach. Diigo's notification of or response to a Security Incident will not be construed as an acknowledgement by Diigo of any fault or liability with respect to the incident.
9. Deletion or return of Company Personal Data
9.1 Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.
10. Audit Rights
10.1 Customer Audit.
Upon a prior written request by the Customer and subject to its obligations of confidentiality, Diigo will allow the Customer or a non-Diigo competitor's independent third party auditor to access information or examine Diigo's procedures relating to the protection of the Customer's data in order to audit Diigo's compliance with this DPA.
10.2 Process for Inspections.
Inspections shall not be carried out more than once per year and only in circumstances that do not interfere with Diigo's normal business operations. The Customer and Diigo shall agree on the scope, timing and duration of the inspection, and the Customer shall reimburse Diigo for reasonable costs associated with the timing of the inspection. Any deficiencies or reports based on such visits or inspections must be shared with Diigo immediately and will become confidential information of Diigo.
11. Data Transfer
11.1 The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
11.2 UK Addendum. For Data Transfers out of the United Kingdom, the UK Addendum will also apply.
12. CCPA Certification
Diigo will not:
(a) sell Customer personal information;
(b) retain, use, or disclose any Customer personal information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing Customer personal information for a commercial purpose other than providing the Service; or
(c) retain, use, or disclose Customer personal information outside of the direct business relationship between Customer and Diigo.
13. General Terms
Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.
All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.