LICENSESPRING DATA PROCESSING ADDENDUM
Last update: June 30 th , 2018
This Data Processing Addendum (hereinafter referred to as the “DPA”) constitute a legal and binding agreement and an integral part of the terms and conditions [_LINK to the Terms_] (hereinafter referred to the “Terms”) entered into between Cense Data Inc., a company incorporated under the laws of Canada, with registered office at 1810-928 Homer street, V6B 1T7 Vancouver (Canada), business registration no. , including its subsidiaries, affiliates and contractors acting on its behalf (hereinafter collectively referred to as “We”, “Us” or “Our”) and Our clients, users and their heirs, agents, successors and assigns (hereinafter singularly and collectively referred to as “You” or “Your”), with reference to Your access and use of Our Platform and Services.
All terms with initial capital letters used herein shall have the meanings ascribed to them in the Terms, unless specifically defined herein.
SCOPE OF THIS DPA
The scope of this DPA is to detail the terms and conditions according to which, during the performance of Our Services, We will Process on Your behalf Personal Data of individuals from the European Economic Area, as provided in Sect. 5.3 of the Terms.
In addition to the definitions in the Terms, the following definitions apply to the following capitalized terms in this DPA, provided that a word defined in or importing the singular number has the same meaning when used in the plural number, and vice versa:
“Data Subject” means a natural person whose Personal Data are Processed for the Purpose in the context of the provision of Our Services as specified in the Terms.
“EU Data Protection Law” means the European General Data Protection Regulation no. 2016/679 and its national implementing legislations.
“Parties” means collectively We and You, while the “Party” means either Us or You.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.
“Processing” or “Process” or “Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated 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.
“Purpose” means the provision of the Services and the associated Processing of Personal Data of individuals from the European Economic Area.
“Sub-Processor” means the entity engaged by Us or any further sub-contractor to Process Personal Data on Your behalf and under Your instructions.
SUBJECT OF THIS DPA
You appoint Us to Process Personal Data in Your interest and on Your behalf, in connection with the Purpose and in the context of the provision of the Services as specified in the Terms.
Subject of the Processing.
The subject matter of the Processing will cover the following types/categories of Personal Data: (i) contact data (e.g., name, email, address, etc.); (ii) private keys; (iii) IP address; (iv) order information (i.e., products purchased, license types, time of purchase). The categories aforementioned can be reduced according to Your instructions.
Compliance with the law and liability towards Data Subjects.
The Parties undertake to comply with the applicable data protection laws in all their actions and operations related to the Processing of Personal Data and, in particular, with the EU Data Protection Law. The Parties agree that they will be liable to Data Subjects for the entire damage resulting from a violation of the EU Data Protection Law. If one Party paid full compensation for the damage suffered, it is entitled to claim back from the other Party that part of the compensation corresponding to the other Party’s part of responsibility for the damage. For such purpose, You agree to be liable to Data Subjects for the entire damage resulting from a violation of EU Data Protection Law with regard to Processing of Personal Data for which You are a “controller” (as defined under the EU Data Protection Law; i.e., You determine the purposes and means of the Processing of Personal Data), and that We will only be liable to Data Subjects for the entire damage resulting from a violation of the obligations of EU Data Protection Law directed to Us or where We acted outside of or contrary to Your lawful instructions. We will be exempt from liability if We prove that We are not in any way responsible for the event giving rise to the damage.
Purpose and Your instructions.
We shall only process Personal Data on Your behalf, according to Your instruction and not for any other purposes than the Purpose.
Technical and organizational measures.
Personal Data Breach notification.
We will notify You, without undue delay, after becoming aware of a Personal Data Breach, taking reasonable steps to mitigate the effects and to minimize any damage resulting from the Personal Data Breach. In particular, at the latest within 72 (seventy two) hours upon the technical discovery of such breach of Personal Data, We will provide You with at least the following information: (i) the nature of the Personal Data Breach including, where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (ii) the likely consequences of the Personal Data Breach; (iii) the measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
We ensure that all persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Assistance and cooperation.
We will promptly inform You if, in Our opinion, Your instructions infringe EU Data Protection Law, or if We are unable to comply with Your instructions. At Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in complying with data security, data breach notifications, data protection impact assessments, and prior consultations with supervisory authorities requirements under EU Data Protection Law, taking into account the nature of the Processing and the information available to Us.
Data Subjects’ rights.
We shall forward to You of all requests of Data Subjects concerning the exercising of the Data Subjects’ rights under the EU Data Protection Law and, at Your expenses and subject to a separately agreed price quotation, We will provide You with reasonable assistance in the consequent actions required, as provided by the EU Data Protection Law. You understand and agree that certain requests concerning exercising of Data Subjects’ rights may require Us to directly reply to Data Subjects.
Deletion of the Personal Data.
We shall, in accordance with Your choice, delete or return all Personal Data to You after the end of the provision of the Services relating to the Processing of Personal Data and delete existing copies. In particular, following the termination of the Terms, Personal Data linked to Your account will be retained for a period of ten (10) days from such termination within which You may contact Us to export such Data; beyond such term, We are authorized to delete all Personal Data in the normal course of operation, unless We are required by any applicable Laws to retain some or all of such Personal Data (which in any case shall be securely protected from any further Processing except to the extent required by such Laws).
You give Us a general authorization to disclose Personal Data to Sub-Processors for the Purpose; We represent and warrant that such Sub-Processors have provided Us sufficient guarantees to implement appropriate technical and organizational measures to ensure that their sub-Processing will meet requirements under EU Data Protection Law, to the extent applicable to the nature of the service provided by such Sub-Processors. Our current Sub-Processor is Amazon Web Services Inc. In case of intended addition or replacement of Sub-Processors, You are entitled to object to such changes by notifying Us the reasonable grounds for such objection.
Personal Data transfers.
The Personal Data will be Processed in Canada, Belgium and Germany, and any transfer of such Personal Data outside of the European Economic Area shall be subject both to Your consent and to separate contractual arrangements between Us and such third-party data Sub-Processors, binding them to comply with obligations in accordance with the EU Data Protection Law.
You represent and warrant that, in relation to the Processing of Personal Data for the Purposes in the context of the Services, You act as a “controller” (as defined under the EU Data Protection Law; i.e., You determine the purposes and means of the Processing of Personal Data) and that: (i) You comply with EU Data Protection Law when Process Personal Data, and only gives Us lawful instructions; (ii) Data Subjects have been informed of Our Processing of their Personal Data as required by EU Data Protection Law; (iii) there is a valid legal ground for the processing of Personal Data under EU Data Protection Law; (iv) You shall not disclose, and shall not permit any Data Subject to disclose, to Us for Processing any special categories of personal data (as defined under the EU Data Protection Law; i.e., personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health or data concerning sex life or sexual orientation); (v) You shall comply with Data Subjects’ requests to exercise their rights of access, rectification, erasure, data portability, restriction of Processing, and objection to the Processing, and rights relating to automated decision-making; (vi) You shall comply with data accuracy, proportionality and data retention principles; (vii) You shall implement appropriate technical and organizational measures to ensure, and to be able to demonstrate, that the Processing of Personal Data is performed in accordance with EU Data Protection Law; and (viii) You will cooperate with Us to fulfill our respective data protection compliance obligations in accordance with EU Data Protection Law
TERM AND TERMINATION
This DPA shall commence on the first day the Terms are effective and shall continue in full force and effect until the termination of the Purpose.
Termination in case of breach.
This DPA may be immediately terminated by a Party if the other Party breaches any material obligation of this DPA and fails to remedy such breach within 10 (ten) days after receiving a written notice from the non-defaulting Party requiring it to remedy the breach.
We are an independent contractor, so no partnership, joint venture, or agency relationship exists between Us and You. You and Us are each responsible for paying our own employees, including employment related taxes and insurance.
We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, lockouts, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, We will be excused from such performance to the extent it is delayed or prevented by such cause. In any case, if such an event were to occur, we would notify You.
No implied waiver.
Any tolerance or silence by Us, even if on a continuous and reiterated basis, in relation to any breach or default by You of any provision of this DPA shall not be considered as a consent to such breaches and defaults and shall not affect the validity of the clause breached nor shall be construed as a waiver to any of the rights pertaining to Us pursuant to this DPA and/or the applicable Laws.
Governing law and arbitration.
This DPA is governed by the substantive and procedural Laws of Canada, without regard to conflict of laws provisions. Any dispute arising out of, or relating to, this DPA shall be settled through arbitration conducted by a single neutral arbitrator and with place in Vancouver, British Columbia, Canada. The arbitrator’s decision and award shall be final and binding, with some exceptions under the Canadian Arbitration Act, and judgment on the award may be entered in any court having jurisdiction. To such purpose, We and You agree that: (i) if We and/or You want to arbitrate a dispute, a written notice will be sent to the other party with a description of the dispute, all documents/information, and the proposed resolution; (ii) We and You will make attempts to resolve the conflict and, if the dispute is not resolved within forty-five (45) days after receipt of the notice of arbitration, then the dispute will be submitted to formal arbitration; (iii) We and You will not to pursue arbitration broadly and that any arbitration will be solely between You and Us (not brought on behalf of or together with the statement of another person), provided that if for any reason a Court or arbitrator holds that this restriction is unacceptable or unenforceable, then this agreement to arbitrate does not apply and the dispute and must be brought to the competent Canadian Courts; (iv) We and You will be responsible for the respective costs relating to counsel, experts, and witnesses, as well as any other expenses related to arbitration; (v) We and You may bring qualifying claims in small claims court.
Remaining matters and prevalence.
All matters not provided in this DPA shall be regulated by the Terms, which shall prevail in every case of discrepancy between the content of this DPA and the same Terms.
This DPA constitute the entire agreement between We and You with respect to its subject matter and it supersedes all prior or contemporaneous agreements concerning such matter (including, but not limited to, any prior versions of this DPA).