Effective May 1, 2020
This GDPR Data Processing Agreement (“DPA”) forms part of the Terms of Service (available at https://databox.com/terms-of-service) (“ToS”) and Privacy Policy (available at https://databox.com/terms-of-service or such other locations as the ToS and Privacy Policy may be posted from time to time (as applicable, the “Agreement”), entered into by and between the Customer and Databox, Inc. (“Databox”), pursuant to which Customer has accessed Databox Application Services (the “Services”) as defined in the applicable Agreement. The purpose of this DPA is to reflect the parties’ agreement with regard to the processing of Personal Data in accordance with the requirements of Data Protection Legislation as defined below.
If the Customer entity entering into this DPA has executed an order form or statement of work with Databox pursuant to the Agreement (an “Ordering Document”), but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document and applicable renewal Ordering Documents. If the Customer entity entering into this DPA is neither a party to an Ordering Document nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity that is a party to the Agreement executes this DPA.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer Personal Data” means any data provided to Databox by Customer that includes Personal Data. A description of the categories of Customer Personal Data and Data Subjects subject to this DPA is provided in Exhibit A.
“Data Protection Law” means all applicable legislation relating to data protection and privacy including without limitation the EU Data Protection Directive 95/46/EC and all local laws and regulations which amend or replace any of them, including the General Data Privacy Regulation (“GDPR”), together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country, as amended, repealed, consolidated or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“GDPR” means the General Data Protection 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, including any amendments or implementing laws or regulations.
“Instruction” means the written, documented instruction, issued by Controller to Processor, and directing the same to perform a specific action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available). The ToS is considered an “Instruction.”
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“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” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
“Standard Contractual Clauses” means the “standard contractual clauses for the transfer of personal data to processors established in third countries” for the purposes of Article 26(2) of Directive 95/46/EC set out in Commission Decision (C(2010)583), as the same are revised or updated from time to time by the European Commission, which Standard Contractual Clauses (Processors) are attached here to as Exhibit B.
Definitions of terms not set forth herein shall have the same meaning as in the Agreement or GDPR.
a. Customer hereby appoints Databox for the Processing of the Customer Personal Data on its behalf for the purposes set forth in the Agreement. Databox shall Process the Customer Personal Data only (i) to perform its obligations set forth in the Agreement, (ii) in accordance with written instructions from Customer, including with regard to any cross-border transfers, and (iii) as needed to comply with applicable law, regulation or other legal requirement.
b. Each party agrees that the Personal Data, including Customer Personal Data, shall be treated as confidential information under this DPA. In addition, each party shall at all times comply with applicable laws relating to data protection in the relevant jurisdiction.
c. Personal Data shall remain the property of the disclosing party. The parties acknowledge that Customer is a Controller and maintains control over Data Subjects’ Personal Data and Databox is a Processor.
d. Databox will process Customer Personal Data only to the extent strictly necessary for the purpose of providing the services in accordance with the ToS and any further written Instructions from the Customer that are mutually agreed upon in writing. Databox agrees that:
i. it will implement and maintain a reasonable and appropriate security program comprising adequate security, technical and organizational measures to protect against unauthorized, unlawful or accidental processing, use, erasure, loss or destruction of, or damage to, Customer Personal Data and as further described in Databox’s Security Policy (https://databox.com/security-policy);
ii. it will not modify, alter, delete, publish or disclose any Customer Personal Data to any third party, nor allow any third party to process such personal data on Databox’ behalf unless the third party is bound to similar confidentiality and data handling provisions;
iii. only its personnel who “need-to-know” will be given access to Customer Personal Data to the extent necessary to perform its obligations under the ToS and any further Instructions. It shall provide adequate training to its staff and ensure that they comply with the obligations in this DPA;
iv. it will only process Customer Personal Data to the extent necessary to perform its obligations under the Agreement and upon written instructions of the Customer (only as mutually agreed upon), and in accordance with applicable laws; and
v. it will inform Customer immediately in case it believes that an Instruction violates the GDPR and shall cease processing the Company Personal Data that is subject to the Instruction in question. However, Databox’s performance of an Instruction subsequently deemed to be unlawful shall not be considered a breach of Databox’s obligations under the Agreement or this DPA.
e. At Customer’s request, upon termination of your account Databox will either delete or return all Customer Personal Data normally, no later than 60 days, unless we are required to retain the Customer Personal Data due to EU, Member State or United States laws, in which case Databox reserves the right to retain the Customer Personal Data as may be required.
f. For cross-border transfers, the parties agree as follows:
i. Databox shall not transfer any Customer Personal Data (and shall not permit its sub-processors to transfer any Customer Personal Data) to a country outside the EU or EEA that is not recognized as providing an adequate level of protection for Personal Data by the European Commission without the prior consent of Customer. Databox understands that Customer must approve and document that adequate protection for the Customer Personal Data will exist after such cross-border transfer. Accordingly, the parties hereby agree that the Standard Contractual Clauses (Processors), approved by the European Commission and set forth in Exhibit B, will apply to the Processing by Databox of the Customer Personal Data in any country outside the EU or EEA determined not to provide an adequate level of protection.
ii. Customer agrees that it is a Data Exporter (not withstanding that Customer or its Affiliate(s) may be located outside the EU or EEA), and Databox agrees it is the Data Importer. Databox will ensure that the Standard Contractual Clauses (Processors) are incorporated into its agreement with its sub-processors, as applicable. If the Standard Contractual Clauses (Processors) are amended, replaced, or repealed by the European Commission or under applicable law, the parties shall cooperate in good faith to enter into an updated version of the Standard Contractual Clauses (Processors) or negotiate an alternative solution to enable the contemplated cross-border transfers.
g. The parties acknowledge that Customer may from time to time be in possession of Personal Data relating to Databox’s personnel. Databox warrants that it has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required under any applicable law in order to enable: (i) the disclosure of Databox’s Personal Data to Customer; and (ii) further processing of such Databox Personal Data by Customer.
a. Customer warrants that it has all necessary rights to provide to Databox the Customer Personal Data for processing in connection with the provision of the the Services.
b. To the extent required by applicable law, Customer is responsible for ensuring that any Data Subject consents that may be necessary to this processing are obtained, and for ensuring that a record of such consents is maintained, including any consent to use Personal Data that is obtained from third parties. Should such consent be revoked by a Data Subject, Customer is responsible for communicating the fact of such revocation to Databox, and Databox remains responsible for implementing any Customer Instruction with respect to the further processing of that Personal Data, or, as may be in accordance with any of Databox’s legal obligations.
c. Customer understands, as a Controller, that it is responsible (as between Customer and Databox) for:
i. determining the lawfulness of any processing, performing any required data protection impact assessments, and accounting to regulators and individuals, as may be needed;
ii. making reasonable efforts to verify parental consent when data is collected on a Data Subject under 16 years of age;
iii. providing relevant privacy notices to Data Subjects as may be required in your jurisdiction, including notice of their rights and provide the mechanisms for individuals to exercise those rights;
iv. responding to requests from individuals about their data and the processing of the same, including requests to have personal data altered, corrected, or erased, and providing copies of the actual data processed;
v. implementing your own appropriate technical and organizational measures to ensure and demonstrate processing in accord with this DPA; and
vi. notifying individuals and any relevant regulators or authorities of any incident as may be required by law in your jurisdiction.
d. Databox shall assist the Customer by implementing appropriate technical and organizational measures, insofar as this is reasonably and commercially possible (in Databox’s sole determination and discretion), in fulfilling Customer’s obligations to respond to Data Subjects’ requests to exercise their rights under the GDPR. For avoidance of doubt, Databox shall not respond directly to Data Subjects’ requests unless instructed to do so by Customer.
e. As stated in our Privacy Policy, the customer consents to Databox engaging sub-processors to process Customer Personal Data for the permitted purpose of providing products and services for which we contracted provided that: (a) Databox will maintain an up-to-date list of its sub-processors, which it will update with the details of any change in sub-processors at least 10 days prior to the change; and (b) Databox will impose data protection terms on any sub-processor it engages with as required to protect customer’s personal data to the standard required by the GDPR. Customer may object to Databox’s appointment or replacement, provided such objection is based on reasonable grounds related to data protection. In such event, Databox will either not appoint or replace the sub-processor or if that is not possible, Customer may suspend or terminate the specific Databox service at issue. A list of Databox’s current sub-processors is provided on Exhibit A.
g. On an annual basis, Databox will procure an internal audit of its code base and systems to demonstrate compliance with its obligations under this DPA. Upon written request, Databox shall make available to the Customer information reasonably necessary to demonstrate compliance with its obligations under this DPA, including an executive summary of its audit. Customer may conduct up to (1) audit or inspection per contractual year and shall pay all costs associated with any independent agent or auditor it may designate to conduct such audit and/or inspection.
a. When either party becomes aware of an actual or threatened Personal Data Breach that impacts the processing of Customer Personal Data, it shall promptly notify the other about the Personal Data Breach and shall reasonably cooperate in order to enable the other party to perform a thorough investigation into the incident, to formulate a correct response, and to take suitable further steps in respect of the incident.
b. Both parties shall at all times have in place written procedures which enable them to promptly respond to the other about a Personal Data Breach. Where the incident is reasonably likely to require a data breach notification under applicable laws, the party responsible for the incident shall notify the other without undue delay of having become aware of such an incident.
c. Any notifications made under this section shall be made to compliance@databox.com (when made to Databox) and to our point of contact with you (when made to the customer), and shall contain:(i) a description of the nature of the incident, including, where possible, the categories and approximate number of individuals concerned and the categories and approximate number of records concerned; (ii) the name and contact details of the point of contact where more information can be obtained; (iii) a description of the likely consequences of the incident; and (iv) a description of the measures taken or proposed to be taken to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
a. Each party indemnifies the other and holds them harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the indemnified party and arising directly or indirectly out of or in connection with a breach of its obligations under this DPA.
a. This DPA is effective as of the data written above shall continue until it is changed or terminated in accordance with the ToS or so long as Databox continues to provide the Services to Customer. b. Termination or expiration of this DPA shall not discharge the parties from the confidentiality obligations herein.