Data Processing Agreement
Effective from 25 May 2018
1.1. Application: This Data Processing Agreement applies to the extent that Personal Data which is subject to EU Data Protection Law is Processed in the course of the performance of the Services. The Parties acknowledge and agree that with regard to such Processing of Personal Data, the customer is the Data Controller and VidApp is a Data Processor.
1.2. Authority: If the customer is using the Services on behalf of a business, the customer represents to VidApp that it has authority to bind that business or entity to this Data Processing Agreement and that the business accepts this Data Processing Agreement.
1.3. Personal Data: An overview of the categories of Personal Data, the types of Data Subjects, and purposes for which the Personal Data are being processed is provided in Annex 1.
2. DATA PROCESSING
2.1. Data Controller’s authority: The Data Controller will, in determining the Services purchased and the Personal Data used in relation to those Services, determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by the Data Processor.
2.2. Restrictions on processing: The Data Processor will only process the Personal Data:
2.2.1. on documented instructions of the Data Controller. This Data Processing Agreement constitutes the initial instructions and each use of the Services then constitutes further instructions. The Data Processor will use reasonable efforts to follow any later Data Controller instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Services. If the Data Processor otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Applicable Data Protection Law, the Data Processor will immediately notify the Data Controller; or
2.2.2. to comply with a legal obligation to which the Data Processor is subject. In such a case, the Data Processor shall inform the Data Controller of that legal obligation before processing, unless that law explicitly prohibits the furnishing of such information to the Data Controller.
2.3. Customer Agreement and discretion: The Parties have entered into a Customer Agreement in order to benefit from the expertise of the Data Processor in securing and processing the Personal Data for the purposes of the supply of the Services. The Data Processor may exercise its own discretion in the selection and use of such means as it considers necessary to pursue those purposes, subject to the requirements of this Data Processing Agreement.
2.4. Data Controller warranty: The Data Controller warrants that it has all necessary rights to provide the Personal Data to the Data Processor for the Processing to be performed in relation to the Services. To the extent required by the Applicable Data Protection Law, the Data Controller is responsible for ensuring that any necessary data subject consents to this Processing are obtained, and for ensuring that a record of such consents is maintained. If such consent is revoked by the data subject, the Data Controller is responsible for removing the relevant Personal Data from the Services.
2.5. Use of third party products: The Services may provide links or integrations or an API which may be used to facilitate integrations to or from Third Party Applications. If Customer elects to integrate with, enable, access or use an API to interact with such Third Party Applications it does so at its own risk and the Data Processor has no responsibility or liability for any Personal Data processed by or through such Third Party Applications. The Data Controller expressly acknowledges and agrees that all enabled Third Party Applications are expressly authorized by the Data Controller and the Data Processor is not a co-processor, subprocessor or controller with respect to any Personal Data processed by or on behalf of the Data Controller through a Third Party Application.
3.1. Personal Data confidential: The Data Processor shall:
3.1.1. treat all Personal Data as strictly confidential;
3.1.2. inform all its employees, agents and/or Sub-processors engaged in processing the Personal Data of the confidential nature of the Personal Data; and
3.1.3. ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
4.1. Technical and organisational measures: The Data Processor shall implement and maintain the Technical and Organisational Measures. The Data Controller agrees that it has reviewed the Technical and Organisational Measures. Each party acknowledges that it considers the Technical and Organisational Measures to be appropriate for non-sensitive categories of Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, taking account all the risks that are presented by processing, in particular from a Personal Data Breach. The Data Processor does not represent that the Technical and Organisational Measures are appropriate for special categories of data or data regarding minors or criminal history and the Data Controller acknowledges that the Technical and Organisational Measures may not be appropriate for such data.
4.2. Types of Personal Data: The Data Controller acknowledges that the Data Processor does not review the types of Personal Data collected in relation to the Services. If the Data Controller submits sensitive Personal Data to the Services, the Data Controller is solely responsible if the Technical and Organisational Measures do not meet the GDPR standard of appropriateness.
4.3. Changes to measures: The Data Processor may change the Technical and Organisational Measures at any time without notice so long as it maintains a comparable or better level of security. The Parties will negotiate in good faith the cost, if any, to implement changes required by specific updated security requirements in Applicable Data Protection Law or by data protection authorities of competent jurisdiction.
4.4. Login details: The Data Controller shall keep its login details confidential and secure and will not share them with others. If the Data Controller knows or suspects that its login information has or is likely to become used in an unauthorized way it shall immediately change its password or notify the Data Processor if it cannot change its password.
4.5. Directions: The Data Controller shall promptly comply with all reasonable directions issued by the Data Processor in relation to security or the Services.
5. DEMONSTRATION AND AUDIT
5.1. Demonstration: At the request of the Data Controller, the Data Processor shall make available to the controller all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR.
5.2. Audit: The Data Controller shall be entitled on giving at least 14 days’ notice to the Data Processor to carry out, or have carried out by a third party who has entered into a confidentiality agreement with the Data Processor, audits of the Data Processor ́s premises and operations as these relate to the Personal Data. The Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller and shall grant the Data Controller ́s auditors reasonable access to any premises and devices involved with the Processing of the Personal Data. The Data Processor shall provide the Data Controller and/or the Data Controller ́s auditors with access to any information relating to the Processing of the Personal Data as may be reasonably required by the Data Controller to ascertain the Data Processor ́s compliance with this Data Processing Agreement.
6. PERSONAL DATA BREACH
6.1. Notifications: The Data Processor shall notify the Data Controller without undue delay upon becoming aware of a Personal Data Breach affecting Personal Data, providing Data Controller with sufficient information to allow the Data Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Applicable Data Protection Laws. Such shall contain:
6.1.1. a description of the nature of the incident, including where possible the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;
6.1.2. the name and contact details of the Data Processor’s data protection officer or another contact point where more information can be obtained;
6.1.3. a description of the likely consequences of the incident; and
6.1.4. a description of the measures taken or proposed to be taken by the Data Processor to address the incident including, where appropriate, measures to mitigate its possible adverse effects.
6.2. Co-operation: The Data Processor shall co-operate with the Data Controller and take such reasonable commercial steps as are directed by Data Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
7. CONTRACING WITH SUB-PROCESSORS
7.1. Authorisation: The Data Processor lists the Sub-processors on its Website, including the name, address and role of each Sub-processor. The Data Controller authorises the engagement of such Sub-processors.
7.2. Changes: Where the Data Processor removes, adds or replaces a Sub-processor, it will update the list on the Website, thereby giving the Data Controller the opportunity to object to such changes. If the Data Controller objects to such changes to the sub-processors, its sole remedy is to cancel or terminate its account or the Services.
7.3. Liability: Notwithstanding authorisation by the Data Controller in accordance with this clause 7, the Data Processor shall remain fully liable vis-à-vis the Data Controller for the performance of any such subprocessor that fails to fulfil its data protection obligations.
7.4. Sub-processor obligations: The Data Processor shall ensure that where it engages a Sub-processor for carrying out specific processing activities on behalf of the Data Controller, it will impose the data protection obligations as set out in this Data Protection Agreement as referred to in paragraph 3 of Article 28 of the GDPR on that Sub-processor, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR.
7.5. Transfer: The Data Processor may transfer information to multiple countries as part of providing Services. If information originates from the European Economic Area (“EEA”) the Data Processor will not transfer the information outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is compliant with the EU Data Protection Law.
7.6. Requests from data subjects: The Data Processor shall promptly notify Data Controller if any Sub-processor receives a request from a Data Subject under any Data Protection Law in respect of Personal Data and ensure that the Sub-processor does not respond to that request except on the documented instructions of Data Controller or as required by Applicable Data Protection Laws to which the Sub-processor is subject, in which case Data Processor shall to the extent permitted by Applicable Laws inform Data Controller of that legal requirement before the Sub-processor responds to the request.
8. DATA TRANSFERS
8.1. Transfers: The Data Processor shall be entitled to process Personal Data, including by using Subprocessors, outside the country in which the Data Controller is located as permitted under Data Protection Law. Where the Data Processor transfers Personal Data to a country outside of the European Economic Area without an adequate level of protection, it lists such transfers on its Website. The Data Controller authorises such transfers. If the Data Controller objects to such transfers, its sole remedy is to cancel or terminate its account or the Services.
8.2. Statutory mechanism: To the extent that the Data Controller or the Data Processor are relying on a specific statutory mechanism to normalize international data transfers that are subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, the Data Controller and the Data Processor agree to cooperate in good faith to promptly terminate the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.
9. RETURNING OR DESTRUCTION OF PERSONAL DATA
9.1. Deletion or destruction: The Data Processor shall at the choice of the Data Controller, delete or return all the Personal Data to the Data Controller after the end of the provision of the Services, and delete existing copies subject to clause 9.3.
9.2. Return: The Data Controller agrees that return of Personal Data shall be undertaken by the Data Controller exporting the applicable Personal Data from the Services prior to any termination of the Services.
9.3. Retained data: The Data Processor may retain Personal Data to the extent and for such period as required by applicable laws (for example, applicable New Zealand tax laws). The Data Processor shall ensure the confidentiality of all such retained Personal Data.
9.4. Notification of third parties: The Data Processor shall notify all third parties supporting its own processing of the Personal Data of the termination of the Data Processing Agreement and shall ensure that all such third parties shall either destroy the Personal Data or return the Personal Data to the Data Controller, at the discretion of the Data Controller.
10. ASSISTANCE TO DATA CONTROLLER
10.1. Technical and organisational measures: The Data Processor shall assist the Data Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the data subject’s rights under EU Data Protection Law.
10.2. Assistance: The Data Processor shall assist the Data Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to the Data Processor.
10.3. Impact assessments: The Data Processor shall provide reasonable assistance to the Data Controller for any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Data Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other data protection law, in each case solely in relation to Processing of Personal Data by the Data Processor, and taking into account the nature of the Processing and information available to the Data Processor. The Data Processor may charge for such assistance at its standard rates.
11.1. Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Applicable Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information that the other party reasonably requests (such as through use of the Services), in order to enable the other party to comply with any obligations relating to maintaining records of processing.
12.1. Data subjects: The Parties agree that any Data Subject who has suffered damage as a result of any breach of this DPA may be entitled to seek compensation either from the Data Controller or the Data Processor. If the one Party has paid damages that are partly or fully attributable to the other Party, the former is entitled to claim back the relevant part of the damages from the latter.
13. DURATION AND TERMINATION
13.1. Confidentiality: Termination or expiration of this Data Processing Agreement shall not discharge the Data Processor from its confidentiality obligations pursuant to clause 3.
13.2. Effective date: The Data Processor shall process Personal Data until the earlier of:
13.2.1. the date of termination of the Customer Agreement;
13.2.2. any date that the Data Controller instructs that Processing cease; or
13.2.3. the return or destruction of all Personal Data in accordance with clause 9.
14.1. Changes due to Applicable Data Protection Law: Either Party may propose variations to this Data Processing Agreement if it reasonably considers it to be necessary to address the requirements of any Applicable Data Protection Law. If either Party gives such notice, the Parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the identified requirements as soon as is reasonably practicable.
14.2. Changes due to Controller instruction: Where an amendment to the Customer Agreement or this Data Protection Agreement is necessary in order to execute a Data Controller instruction to the Data Processor including to improve security measures:
14.2.1. the Parties shall promptly discuss the proposed instruction and negotiate in good faith as soon as is reasonably practicable with a view to agreeing and implementing instruction; and
14.2.2. if the Parties are not able to reach agreement, the Data Controller’s sole remedy is to sole remedy is to cancel or terminate its account or the Services.
15.1. Contract details: Each Party will deliver all notices under this Data Processing Agreement to addresses specified in Annex 3.
16.1. Conflict in terms: In the event of any conflict between this Data Processing Agreement and the Customer Agreement, this Data Processing Agreement will take precedence.
16.2. Governing law: This Data Processing Agreement is governed by the laws of New Zealand, and each party irrevocably submits to the non-exclusive jurisdiction of the New Zealand courts.
17. INTERPRETATION AND DEFINITIONS
17.1. Interpretation: In these Terms, unless the context otherwise requires:
17.1.1. the singular includes the plural and vice versa;
17.1.2. a reference to materials means a reference to materials of any kind whether in the form of documentation, software or otherwise;
17.1.3. a reference to either party includes reference to its respective successors in title and permitted assigns (and where the context so permits) its personnel and representatives;
17.1.4. any agreement not to do a thing also constitutes an agreement not to suffer or permit or cause that thing to be done;
17.1.5. the words “includes” and “including” are to be read as being followed by the words “without limitation”; and
17.1.6. a reference to any documentation and the Website includes as varied or substituted.
17.2. Defined terms:
17.2.1. Terms such as Processing and Personal Data Breach have the meaning ascribed to them in the GDPR.
17.2.2. In addition:
Applicable Data Protection Law means all applicable data protection and privacy laws including, where applicable, EU Data Protection Law or New Zealand privacy law.
Customer Agreement means the Terms of Service or, if the Parties have entered into a separate written agreement for the supply and use of the Services and the Website, that written agreement, each of which addresses the supply of Services to the customer.
Data Controller has the meaning given to “Controller” in the GDPR.
Data Processor has the meaning given to “Processor” in the GDPR.
EU Data Protection Law means 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).
GDPR means Directive 95/46/EC (General Data Protection Regulation) of EU Data Protection Law.
Parties means the customer and VidApp.
Personal Data means such personal data (as that term is defined in the GDPR) as is provided by the Data Controller to the Data Processor for the purposes of the Data Processor providing the Services.
Services means the user research services supplied by VidApp under a Customer Agreement.
Sub-processor means a processor engaged by VidApp for carrying out specific processing activities on the customer’s behalf.
Technical and Organisational Measures means the technical and organisational measures outlined in Annex 2.
Third Party Applications means third party products or services.
VidApp means Vidapp Limited (New Zealand Business Number 9429041554289) and includes its successors and assigns, related companies, officers, directors, employees and agents.
Website means the website at www.vidapp.com.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Personal Data
The subject matter and duration of the Processing of the Personal Data are set out in the principal part of this Data Processing Agreement.
Categories of Data Subject to whom the Personal Data relates
Data Controller may submit Personal Data to the Services, the extent of which is determined and controlled by the Data Controller in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
• Data Controller’s users as authorised by Data Controller to use the Services; and
• Data Controller’s clients or users.
Categories of data
Data Controller may submit Personal Data to the Services, the extent of which is determined and controlled by the Data Controller in its sole discretion, including the following categories of Personal Data:
• Data Controller’s personal information;
• Data Controller’s user’s general personal information
Special categories of data/data regarding minors or criminal history (if appropriate)
Subject to clause 4, the Data Controller may submit special categories of data or data regarding minors or criminal history to the Services, the extent of which is determined and controlled by the Data Controller in its sole discretion. Such data includes, for the sake of clarity, Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
The objective of Processing of Personal Data by Data Processor is the performance of the Services pursuant to the Customer Agreement.
ANNEX 2: TECHNICAL AND ORGANISATIONAL MEASURES
1. General Practices. The Data Processor has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect Personal Data against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows:
2. Domain: Organization of Information Security
2.1. Security Ownership. The Data Processor has appointed one or more security officers responsible for coordinating and monitoring the security rules and procedures.
2.2. Security Roles and Responsibilities. The Data Processor’s personnel with access to Personal Data are subject to confidentiality obligations.
2.3. Risk Management Program. The Data Processor performed a risk assessment before processing the Personal Data or launching the Services.
2.4. The Data Processor retains its security documents pursuant to its retention requirements after they are no longer in effect.
3. Domain: Asset Management
3.1. Asset Inventory. The Data Processor maintains an inventory of all media on which Personal Data is stored. Access to the inventories of such media is restricted to the Data Processor’s personnel authorized in writing to have such access.
3.2. Asset Handling.
3.2.1. The Data Processor classifies Personal Data to help identify it and to allow for access to it to be appropriately restricted (e.g., through encryption).
3.2.2. The Data Processor imposes restrictions on printing Personal Data and has procedures for disposing of printed materials that contain Personal Data.
3.2.3. The Data Processor’s personnel must obtain its authorization prior to storing are prohibited from storing Personal Data on portable devices, remotely accessing Personal Data, or processing Personal Data outside its facilities. This includes removing media (e.g., USB sticks and CD ROMs) and documents containing Personal Data from its facilities.
4. Domain: Human Resources Security
4.1. Security Training.
4.1.1. The Data Processor informs its personnel about relevant security procedures and their respective roles. The Data Processor also informs its personnel of possible consequences of breaching the security rules and procedures.
4.1.2. The Data Processor only uses anonymous data in training.
5. Domain: Physical and Environmental Security
5.1. Physical Access to Facilities. The Data Processor limits to identified authorized individuals access to facilities where information systems that process Personal Data are located.
5.2. Physical Access to Components. The Data Processor maintains records of the incoming and outgoing media containing Personal Data, including the kind of media, the authorized sender/recipients, date and time, the number of media and the types of Personal Data they contain.
5.3. Protection from Disruptions. The Data Processor uses a variety of industry standard systems to protect against loss of data due to power supply failure or line interference.
5.4. Component Disposal. The Data Processor uses industry standard processes to delete Personal Data when it is no longer needed.
6. Domain: Communications and Operations Management
6.1. Operational Policy. The Data Processor maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Personal Data.
6.2. Data Recovery Procedures.
6.2.1. On an ongoing basis, but in no case less frequently than once a week (unless no Personal Data has been updated during that period), the Data Processor maintains multiple copies of Personal Data from which Personal Data can be recovered.
6.2.2. The Data Processor stores copies of Personal Data and data recovery procedures in a different place from where the primary computer equipment processing the Personal Data is located.
126.96.36.199.2.1. The Data Processor has specific procedures in place governing access to copies of Personal Data.
188.8.131.52.2.2. The Data Processor reviews data recovery procedures at least every six months.
184.108.40.206.2.3. The Data Processor logs data restoration efforts, including the person responsible, the description of the restored data and which data (if any) had to be input manually in the data recovery process.
6.3. Malicious Software. The Data Processor has anti-malware controls to help avoid malicious software gaining unauthorized access to Personal Data, including malicious software originating from public networks.
7. Data Beyond Boundaries.
7.1. The Data Processor encrypts Personal Data that is transmitted over public networks.
7.2. The Data Processor restricts access to Personal Data in media leaving its facilities (e.g., through encryption).
8. Domain: Access Control
8.1. Access Policy. The Data Processor maintains a record of security privileges of individuals having access to Personal Data.
8.2. Access Authorization.
8.2.1. The Data Processor maintains and updates a record of personnel authorized to access its systems that contain Personal Data.
8.2.2. The Data Processor deactivates authentication credentials that have not been used for a period of time not to exceed six months.
8.2.3. The Data Processor identifies those personnel who may grant, alter or cancel authorized access to data and resources.
8.2.4. Technical support personnel are only permitted to have access to Personal Data when needed.
8.2.5. The Data Processor restricts access to Personal Data to only those individuals who require such access to perform their job function.
8.2.6. Integrity and Confidentiality. The Data Processor instructs its personnel to disable administrative sessions when leaving premises the Data Processor controls or when computers are otherwise left unattended.
8.3.1. The Data Processor uses industry standard practices to identify and authenticate users who attempt to access information systems.
8.3.2. Where authentication mechanisms are based on passwords, the Data Processor requires that the passwords are renewed regularly.
8.3.3. Where authentication mechanisms are based on passwords, the Data Processor requires the password to be at least eight characters long.
8.3.4. The Data Processor ensures that de-activated or expired identifiers are not granted to other individuals.
8.3.5. The Data Processor monitors repeated attempts to gain access to the information system using an invalid password.
8.3.6. The Data Processor maintains industry standard procedures to deactivate passwords that have been corrupted or inadvertently disclosed.
8.3.7. The Data Processor uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage.
8.4. Network Design. The Data Processor has controls to avoid individuals assuming access rights they have not been assigned to gain access to Personal Data they are not authorized to access.
8.5. Domain: Information Security Incident Management
8.5.1. Incident Response Process. The Data Processor maintains a record of security breaches with a description of the breach, the time period, the consequences of the breach, the name of the reporter, and to whom the breach was reported, and the procedure for recovering data.
8.6. Service Monitoring. The Data Processor’s security personnel verify logs at least every six months to propose remediation efforts if necessary.
8.7. Domain: Business Continuity Management
8.7.1. The Data Processor maintains emergency and contingency plans for the facilities in which its information systems that process Personal Data are located.
8.7.2. The Data Processor’s redundant storage and its procedures for recovering data are designed to attempt to reconstruct Personal Data in its original state from before the time it was lost or destroyed.
ANNEX 3: CONTACT DETAILS
Contact information of the Data Protection Officer of the Data Processor:
Contact information for support requests: email@example.com