This Data Processing Addendum ("DPA") forms part of the Rotaready Subscription Agreement or other written or electronic agreement between Rotaready and Customer for the purchase of online services (including associated Rotaready offline or mobile components) from Rotaready (identified either as "Services" or otherwise in the applicable agreement, and hereinafter defined as "Services") (the "Agreement") to reflect parties' agreement with regard to the Processing of Personal Data.
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 its Authorised Affiliates, if and to the extent Rotaready processes Personal Data for which such Authorised Affiliates qualify as the Controller.
In the course of providing the Services to Customer pursuant to the Agreement, Rotaready 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.
Upon receipt of the validly completed DPA by Rotaready, this DPA will become legally binding.
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 Rotaready entity that is party to the Agreement is party to this DPA.
If the Customer entity signing this DPA has executed an Order Form with Rotaready or its Affiliate pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order Form and applicable renewal Order Forms, and the Rotaready entity that is party to such Order Form is party to this DPA.
If the Customer entity signing this DPA is neither a party to an Order Form nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executes this DPA.
If the Customer entity signing the DPA is not a party to an Order Form nor a Subscription Agreement directly with Rotaready, but is instead a customer indirectly via an authorised reseller of Rotaready services, this DPA is not valid and is not legally binding. Such entity should contact the authorised reseller to discuss whether any amendment to its agreement with that reseller may be required.
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).
"Affiliate" means 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.
"Authorised 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 Rotaready, but has not signed its own Order Form with Rotaready 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.
"Customer Data" means what is defined in the Agreement as "Customer Data" or "Your 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" means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, 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.
"Security, Privacy and Architecture Documentation" means the Security, Privacy and Architecture Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and as otherwise made reasonably available by Rotaready.
"Sub-processor" means any Processor engaged by Rotaready.
"Supervisory Authority" means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Rotaready is the Processor and that Rotaready 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 Rotaready's Processing of Personal Data. Rotaready 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 and applicable Order Form(s); (ii) Processing initiated by Users 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 Rotaready 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.
3.1 Data Subject Request. Rotaready shall, to the extent legally permitted, promptly notify Customer if Rotaready 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, Rotaready shall assist Customer by appropriate technical and organisational 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, Rotaready shall upon Customer's request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Rotaready 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 costs arising from Rotaready's provision of such assistance.
4.1 Confidentiality. Rotaready 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. Rotaready shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
4.2 Reliability. Rotaready shall take commercially reasonable steps to ensure the reliability of any Rotaready personnel engaged in the Processing of Personal Data.
4.3 Limitation of Access. Rotaready shall ensure that Rotaready's access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
4.4 Data Protection Officer. Rotaready has appointed a data protection officer. The appointed person may be reached at email@example.com.
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Rotaready's Affiliates may be retained as Subprocessors; and (b) Rotaready and Rotaready's Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Rotaready or a Rotaready Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement 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. Rotaready shall make available to Customer the current list of Sub-processors for the Services provided. This can be found on our Subprocessors policy page. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location. Rotaready shall provide a mechanism to subscribe to notifications of new Sub-processors for each applicable Service, to which Customer shall subscribe, and if Customer subscribes, Rotaready shall provide notification of a new Sub-processor(s) before authorising 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 Rotaready's use of a new Sub-processor by notifying Rotaready promptly in writing within ten (10) business days after receipt of Rotaready'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, Rotaready 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 Subprocessor without unreasonably burdening the Customer. If Rotaready 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 Order Form(s) with respect only to those Services which cannot be provided by Rotaready without the use of the objected-to new Sub-processor by providing written notice to Rotaready. Rotaready will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
5.4 Liability. Rotaready shall be liable for the acts and omissions of its Sub-processors to the same extent Rotaready 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. Rotaready shall maintain appropriate technical and organisational measures for protection of the security (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security, Privacy and Architecture Documentation. Rotaready regularly monitors compliance with these measures. Rotaready will not materially decrease the overall security of the Services during a subscription term.
6.2 Third-Party Certifications and Audits. Rotaready has obtained the third-party certifications and audits set forth in the Security, Privacy and Architecture Documentation. Upon Customer's written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, Rotaready shall make available to Customer that is not a competitor of Rotaready (or Customer's independent, third-party auditor that is not a competitor of Rotaready) a copy of Rotaready's then most recent third-party audits or certifications, as applicable.
Rotaready maintains security incident management policies and procedures specified in the Security, Privacy and Architecture Documentation and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Rotaready or its Sub-processors of which Rotaready becomes aware (a "Customer Data Incident"). Rotaready shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Rotaready deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Rotaready's reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer's Users.
Rotaready 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 and Architecture Documentation.
9.1 Contractual Relationship. The parties acknowledge and agree that, by executing the Agreement, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorised Affiliates, thereby establishing a separate DPA between Rotaready and each such Authorised Affiliate subject to the provisions of the Agreement and this Section 9 and Section 10. Each Authorised Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorised 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 Authorised Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorised Affiliate shall be deemed a violation by Customer.
9.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Rotaready under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorised Affiliates.
9.3 Rights of Authorised Affiliates. Where an Authorised Affiliate becomes a party to the DPA with Rotaready, 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 Authorised Affiliate to exercise a right or seek any remedy under this DPA against Rotaready 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 Authorised 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 Authorised Affiliate individually but in a combined manner for all of its Authorised 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 onsite audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on Rotaready and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of different Authorised Affiliates in one single audit.
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 Authorised Affiliates and Rotaready, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability' section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together.
For the avoidance of doubt, Rotaready's and its Affiliates' total liability for all claims from the Customer and all of its Authorised 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 Authorised Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorised 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 Schedules and Appendices.
11.1 GDPR. With effect from 25 May 2018, Rotaready will Process Personal Data in accordance with the GDPR requirements directly applicable to Rotaready's provision of its Services.
11.2 Data Protection Impact Assessment. With effect from 25 May 2018, upon Customer's request, Rotaready shall provide Customer with reasonable cooperation and assistance needed to fulfil 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 Rotaready. Rotaready 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.
11.3 International data transfers. Rotaready shall not transfer any Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories.
This DPA shall only become legally binding between Customer and Rotaready when the formalities steps set out in the Section "HOW TO EXECUTE THIS DPA" above have been fully completed.
List of Schedules
Rotaready will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
Subject to Section 8 of the DPA, Rotaready will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: