Data Processing Addendum
By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of Customer’s Authorized Affiliates, if and to the extent Vagebond processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term "Customer" shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the Services to Customer pursuant to the Agreement, Vagebond may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
HOW TO EXECUTE THIS DPA:
- This DPA consists of two parts: the main body of the DPA, and Schedule 1.
- This DPA has been pre-signed on behalf of Vagebond.
- To complete this DPA, Customer must complete the information in the signature box and sign at section 13.
- Send the completed and signed DPA to Vagebond at email@example.com.
Upon receipt of the validly completed DPA by Vagebond at this email address, this DPA will become legally binding.
HOW THIS DPA APPLIES
If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement. In such case, the Vagebond entity that is party to the Agreement is party to this DPA. This DPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in Customer’s Agreement (including any existing data processing addendum to the Agreement). All conditions by the Client or by any third party shall not be deemed consented to by Vagebond, unless such condition is explicitly accepted by Vagebond in writing.
DATA PROCESSING TERMS
“Affiliate” means (a) any entity on whose behalf Customer obtained the Services provided by Vagebond, and/or (b) any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Affiliate” means any of Customer's Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and Vagebond, but has not signed its own Agreement with Vagebond and is not a "Customer" as defined under the Agreement.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means 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).
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” (including its various forms) means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Vagebond” means the Vagebond entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, the company registered at the Dutch Chamber of Commerce under number
“Sub-processor” means any Processor engaged by Vagebond.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties.
The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Vagebond is the Processor and that Vagebond will engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below.
2.2 Customer’s Processing of Personal Data.
Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
2.3 Vagebond’s Processing of Personal Data.
Vagebond shall treat Personal Data as confidential information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customers and/or Authorized Affiliates in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
2.4 Details of the Processing.
The subject-matter of Processing of Personal Data by Vagebond is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
3. DATA SUBJECT REQUESTS
Vagebond shall, to the extent legally permitted, promptly notify Customer if Vagebond receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Vagebond shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Vagebond shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Vagebond is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any reasonable costs arising from Vagebond’s provision of such assistance.
Vagebond shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Vagebond shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
Vagebond shall take commercially reasonable steps to ensure the reliability of any Vagebond personnel engaged in the Processing of Personal Data.
4.3 Limitation of Access.
Vagebond shall ensure that Vagebond’s access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
4.4 Data Protection Officer.
Based on Vagebond’s processing activities, Vagebond is not required to appoint a Data Protection Officer. Vagebond reserves the right to voluntarily appoint a Data Protection Officer in the future. For questions about this DPA, GDPR compliance, data privacy, Privacy Shield, or any other privacy issues please send an email to firstname.lastname@example.org.
5.1 Appointment of Sub-processors.
Customer acknowledges and agrees that (a) Vagebond’s Affiliates may be retained as Sub-processors; and (b) Vagebond and Vagebond’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Vagebond or a Vagebond Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
5.2 List of Current Sub-processors and Notification of New Sub-processors.
Vagebond shall make available to Customer the current list of Sub-processors for the Vagebond Services. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Sub-processor Documentation”). Customer may find on Vagebond’s webpage at the Sub-processor Documentation. Vagebond, through notification to the Customer shall provide notification of a new Sub-processor(s) before authorizing any new Sub- processor(s) to Process Personal Data in connection with the provision of the applicable Services.
5.3 Objection Right for New Sub-processors.
Customer may object to Vagebond’s use of a new Sub-processor by notifying Vagebond promptly in writing within ten (10) business days after receipt of Vagebond’s notice in accordance with the mechanism set out in Section 5.2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, Vagebond will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected- to new Sub-processor without unreasonably burdening the Customer. If Vagebond is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by Vagebond without the use of the objected-to new Sub-processor by providing written notice to Vagebond. Vagebond will refund Customer any prepaid fees covering the remainder of the term of such Agreement following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer. Vagebond shall not be liable for any extra costs or damages as a result of such termination.
Vagebond shall be liable for the acts and omissions of its Sub-processors to the same extent Vagebond would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
6.1 Controls for the Protection of Customer Data.
Vagebond shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security & Privacy Documentation. Vagebond regularly monitors compliance with these measures. Vagebond will not materially decrease the overall security of the Services during a service term.
7. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
Vagebond maintains security incident management policies and procedures specified in the Security & Privacy Documentation and the Agreement. Vagebond shall, notify Customer without undue delay, and in compliance with applicable laws, after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Vagebond or its Sub-processors of which Vagebond becomes aware (a “Customer Data Incident”). Vagebond shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Vagebond deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Vagebond’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Authorized Affiliates.
8. RETURN AND DELETION OF CUSTOMER DATA
Vagebond shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security & Privacy Documentation. Vagebond adheres to the legal retention period (5 years by default)
9. AUTHORIZED AFFILIATES
9.1 Contractual Relationship.
The parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Vagebond and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, by Customer entering into this DPA, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services and Content by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Vagebond under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
9.3 Rights of Authorized Affiliates.
Where an Authorized Affiliate becomes a party to the DPA with Vagebond, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
- 9.3.1 Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against Vagebond directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 9.3.2, below).
- 9.3.2 The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on Vagebond and its Sub-processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of different Authorized Affiliates in one single audit.
In the event that the Customer and or an Authorized Affiliate fails to fulfil its obligation(s) as stated in the aforementioned sections in part or in full, Vagebond can suspend its obligations towards the Customer and or the Authorized Affiliate with immediate effect until the Customer and or the Authorized Affiliate has fulfilled its obligation(s). Vagebond shall notify the Customer in writing of the suspension of the obligation(s). In addition, the Customer and or the Authorized Affiliate will owe Vagebond a fixed penalty sum of € 2,000 per day that the Customer and or the Authorized Affiliate has not fully complied with the stated obligation(s).
10. LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and Vagebond, whether in contract, tort or under any other theory of liability, is subject to the limitations of liability set forth in the Agreement, and such limitations apply to the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, Vagebond's and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedule(s) and Appendices.
11. EUROPEAN SPECIFIC PROVISIONS
With effect from May 25, 2018, Vagebond will Process Personal Data in accordance with the GDPR requirements directly applicable to Vagebond's provision of its Services.
11.2 Data Protection Impact Assessment.
With effect from May 25, 2018, upon Customer’s request, Vagebond shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Vagebond. Vagebond shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of this DPA, to the extent required under the GDPR.
12. PARTIES TO THIS DPA
The Section “HOW THIS DPA APPLIES” specifies which Vagebond entity is party to this DPA.
13. LEGAL EFFECT
This DPA shall only become legally binding between Customer and Vagebond when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully completed.
The parties' authorized signatories have duly executed this Agreement:
Customer Legal Name: .................
Print Name: ..........................
Print Name: Gianluca Riggio
Date: 25 May 2018
DETAILS OF THE PROCESSING
Nature and Purpose of Processing
Vagebond will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the DPA, and as further instructed by Customer in its use of the Services.
Duration of Processing
Subject to Section 8 of the DPA, Vagebond will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects
Customer may submit Personal Data to the Services, the categories, extent and detail of which is determined and controlled by Customer in its sole discretion.
Type of Personal Data
Customer may submit Personal Data to the Services, the type, extent and detail of which is determined and controlled by Customer in its sole discretion.