Railsware Products Studio LLC Data Processing Addendum

1. Introduction

BACKGROUND

(A) The Customer and Railsware Products Studio LLC (Mailtrap) have entered into an agreement for the supply of email testing and delivery services https://mailtrap.io/terms/ (Terms of Service) that may require Mailtrap to process Personal Data on behalf of the Customer.

(B) This Personal Data Processing Agreement (DPA) sets out the additional terms, requirements and conditions on which Mailtrap will process Personal Data when providing services under the Terms of Service. This DPA contains the mandatory clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) for contracts between Controllers and Processors and the General Data Protection Regulation ((EU) 2016/679).

AGREED TERMS

1. Definitions and interpretation

The following definitions and rules of interpretation apply in this DPA.

1. 1. Definitions:

Business Purposes: the provision of the email testing and delivery services to be provided by Mailtrap to the Customer as described in the Terms of Service and any other purpose specifically identified in Part 2 of Annex A.

Commissioner: the Information Commissioner (see Article 4(A3), UK GDPR and section 114, DPA 2018).

Controller, Processor, Data Subject, Personal Data, Personal Data Breach and processing: have the meanings given in the Data Protection Legislation.

Customer: the client or customer of Mailtrap and party to the Terms of Service.

Customer Personal Data: any Personal Data which Customer provides to Mailtrap for the email testing and delivery services rendering and Mailtrap processes in connection with this DPA in the capacity of a Processor as set out in paragraph 1.1, Part 1 of Annex A. Customer Personal Data does not include any Personal Data which Mailtrap processes in the capacity of a Controller. All the terms of Personal Data processing by Mailtrap as a Controller is defined under Mailtrap Privacy Policy and is out of the scope of this DPA.

Data Privacy Framework (DPF): a program, which is administered by the International Trade Administration (ITA) within the U.S. Department of Commerce, enables eligible U.S.-based organizations to self-certify their compliance pursuant to the EU-U.S. DPF and, as applicable, the UK Extension to the EU-U.S. DPF, and/or the Swiss-U.S. DPF.

Data Protection Legislation:

To the extent the UK GDPR applies, the law of the United Kingdom which relates to the protection of Personal Data.

To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Mailtrap is subject, which relates to the protection of Personal Data.

EEA: the European Economic Area.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

EU Standard Contractual Clauses: the European Commission’s Standard Contractual Clauses (and their annexes) for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 as set out in the Annex to the Commission Implementing Decision (EU) 2021/914 or such alternative clauses as may be approved by the European Commission from time to time and set out in full in Appendix 1 to this DPA.

Mailtrap: Railsware Products Studio LLC (t/a Mailtrap) incorporated and registered in the State of Delaware, United States of America, with the company registration number 4461258, whose company registered office is located at 925 N La Brea Ave, Suite 400, office 560, West Hollywood, CA 90038.

Mailtrap Personnel: means all directors, officers, employees, agents, consultants and contractors of Mailtrap engaged in the performance of its obligations under the Terms of Service and/or this DPA.

Records: has the meaning in clause 12.1.

Sub-Processor: has the meaning given in clause 8.1.

Sub-Processor List: the list of Mailtrap’s Sub-Processors online linked to here – https://mailtrap.io/sub-processors/ as may be amended from time to time.

Term: this DPA’s term as defined in clause 10.1(b).

UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

UK Standard Contractual Clauses: International Data Transfer Addendum to the EU Standard Contractual Clauses (UK Addendum). The UK Addendum has been issued by the Commissioner under section 119A of the Data Protection Act 2018 (as amended, updated or replaced by the UK government or the Commissioner from time to time), set out in Appendix 2 to this DPA.

1.2. This DPA is subject to the terms of the Terms of Service and is incorporated into the Terms of Service Interpretations and defined terms set forth in the Terms of Service apply to the interpretation of this DPA.

1.3. The Annexes and Appendices form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

1.4. A reference to writing or written includes email.

1.5. In the case of conflict or ambiguity between:

(a) any provision contained in the body of this DPA and any provision contained in the Annexes or Appendices, the provision in the body of this DPA will prevail;

(b) any of the provisions of this DPA and the provisions of the Terms of Service, the provisions of this DPA will prevail; and

(c) any of the provisions of this DPA or the Terms of Service, and any executed EU SCCs or UK SCCs, where required, the provisions of the EU SCCs or UK SCCs will prevail.

2. Personal Data types and processing purposes

2.1. The Customer and Mailtrap agree and acknowledge that for the purpose of the Data Protection Legislation:

2.1.1. the Customer is the Controller and Mailtrap is the Processor of the Customer Personal Data;

2.1.2. the Customer retains control of the Customer Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including but not limited to providing any required notices and obtaining any required consents, and for the written processing instructions it gives to Mailtrap; and

2.1.3. in relation to Customer Personal Data, Part 2 of Annex A describes the subject matter, duration, nature and purpose of the processing and the Customer Personal Data categories and Data Subject types in respect of which Mailtrap may process the Customer Personal Data to fulfil the Business Purposes.

3. Mailtrap’s obligations

3.1. Mailtrap will only process the Customer Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Customer’s instructions (written or via Mailtrap Service). Mailtrap will not process the Customer Personal Data for any other purpose or in a way that does not comply with this DPA or the Data Protection Legislation. Mailtrap shall promptly notify the Customer if, in its opinion, the Customer’s instructions do not comply with the Data Protection Legislation.

3.2. Mailtrap shall comply promptly with any Customer instructions (written or via Mailtrap service) requiring Mailtrap to amend, transfer, delete or otherwise process the Customer Personal Data, or to stop, mitigate or remedy any unauthorised processing.

3.3. Mailtrap will maintain the confidentiality of the Customer Personal Data and will not disclose the Customer Personal Data to third parties unless the Customer or this DPA specifically authorises the disclosure, initiates disclosure via Mailtrap service, or as required by domestic, UK or EU law, court or regulator (including the Commissioner and any other relevant regulator). If a domestic, UK or EU law, court or regulator (including the Commissioner and any other relevant regulator) requires Mailtrap to process or disclose the Customer Personal Data to a third party, Mailtrap shall first inform the Customer of such legal or regulatory requirement and give the Customer an opportunity to object or challenge the requirement, unless the domestic, UK or EU law prohibits the giving of such notice.

3.4. Mailtrap will reasonably assist the Customer, at the Customer’s cost, with meeting the Customer’s compliance obligations under the Data Protection Legislation, taking into account the nature of Mailtrap’s processing and the information available to Mailtrap, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Commissioner or other relevant regulator under the Data Protection Legislation.

4. Mailtrap Personnel

4.1. Mailtrap will ensure that all Mailtrap Personnel:

4.1.1. are informed of the confidential nature of the Customer Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Customer Personal Data; and

4.1.2. are aware of both Mailtrap’s duties and their personal duties and obligations under the Data Protection Legislation and this DPA.

5. Security

5.1. Mailtrap shall at all times implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Customer Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Customer Personal Data including, but not limited to, the security measures set out in Annex B.

5.2. The Customer acknowledges and agrees that it has reviewed the security measures in Annex B and it confirms that those measures are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Customer Personal Data to be protected, having regard to the state of technological development and the cost of implementing any security measures.

6. Personal Data Breach

6.1. Mailtrap will promptly notify the Customer if it becomes aware of:

6.1.1. the loss, unintended destruction or damage, corruption, or unusability of part or all of the Customer Personal Data. Mailtrap will restore such Customer Personal Data at its own expense (to the extent that such restoration is technically feasible) promptly;

6.1.2. any accidental, unauthorised or unlawful processing of the Customer Personal Data; or

6.1.3. any Personal Data Breach.

6.2. Where Mailtrap becomes aware of (a), (b) and/or (c) above, it shall, without undue delay, also provide the Customer with the following information:

6.2.1. a description of the nature of (a), (b) and/or (c), including the categories of in-scope Customer Personal Data and approximate number of both Data Subjects and the Customer Personal Data records concerned;

6.2.2. a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.

6.3. Following any accidental, unauthorised or unlawful Customer Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, Mailtrap will reasonably co-operate with the Customer in the Customer’s handling of the matter, including but not limited to:

6.3.1. assisting with any investigation;

6.3.2. facilitating interviews with relevant Mailtrap Personnel (and, where possible, former relevant Mailtrap Personnel);

6.3.3. making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer; and

6.3.4. taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or accidental, unauthorised or unlawful Customer Personal Data processing.

6.4. Mailtrap will not inform any third party of any accidental, unauthorised or unlawful processing of all or part of the Customer Personal Data and/or a Personal Data Breach without first obtaining the Customer’s written consent, except when required to do so by domestic law.

6.5. Mailtrap agrees that the Customer has the sole right to determine whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope regulators, law enforcement agencies or others, as required by law or regulation or in the Customer’s discretion, including the contents and delivery method of the notice. The Customer shall not offer any remedy to affected Data Subjects without the prior written approval of Mailtrap, such approval not to be unreasonably withheld or delayed.

6.6. Always subject to limitation of liability provided by the Terms of Service, Mailtrap will cover all reasonable documented expenses associated with the performance of the obligations under 6.1 to 6.3 unless the matter arose from the Customer’s specific written instructions, negligence, wilful default or breach of this DPA, in which case the Customer will cover all reasonable expenses.

6.7. Always subject to limitation of liability provided by the Terms of Service, Mailtrap will also reimburse the Customer for actual reasonable documented expenses that the Customer incurs when responding to an incident of accidental, unauthorised or unlawful processing and/or a Personal Data Breach to the extent that Mailtrap caused such, including all costs of notice and any remedy as set out in clause 6.5.

7. Transfers of Customer Personal Data. International Transfers

7.1. Subject to clause 8.1, Mailtrap (and any Sub-Processor) may transfer or otherwise process the Customer Personal Data outside the UK and EEA provided that all such transfers are effected in accordance with Data Protection Legislation.

7.2. Mailtrap complies with the DPF as set forth by the U.S. Department of Commerce. The guaranties provided under DPF shall apply to international transfers of Customer Personal Data between Mailtrap and the Customer as such transfers are from the UK or EEA to the United States of America.

7.3. If at any time during the Term, the DPF no longer applies to Mailtrap, Mailtrap and the Customer agree to be bound as follows:

(a) where the UK GDPR applies, the UK Standard Contractual Clauses;

(b) where the EU GDPR applies, the EU Standard Contractual Clauses.

7.4. Mailtrap and the Customer agree that the execution of this DPA constitutes the incorporation by reference and execution of the EU Standard Contractual Clauses and/or the UK Standard Contractual Clauses only if so required by the Data Protection Legislation.

7.5. Where the Customer consents to the appointment of any Sub-Processors pursuant to clause 8 outside the UK or EEA, then the Customer authorises Mailtrap to enter into an agreement substantially similar to the UK Standard Contractual Clauses or EU Standard Contractual Clauses with the Sub-Processor. Mailtrap will make the executed UK Standard Contractual Clauses or EU Standard Contractual Clauses available to the Customer on written request.

8. Sub-Processors

8.1. Mailtrap may only authorise a third party (Sub-Processor) to process the Customer Personal Data if:

8.1.1. the Sub-Processor is listed in the Sub-Processor List or the Customer is provided with an opportunity to object to the appointment of any new Sub-Processor within 72 hours after Mailtrap provides the Customer with details in writing regarding such new Sub-Processor;

8.1.2. Mailtrap enters into a written contract with the Sub-Processor that contains terms substantially the same as those set out in this DPA; and

8.1.3. Mailtrap maintains control over all the Customer Personal Data it entrusts to the Sub-Processor.

8.2. If the Customer objects to the appointment of any new Sub-Processor pursuant to clause 8.1(a), the Customer shall be entitled to terminate the Terms of Service immediately on written notice to Mailtrap.

8.3. The Customer acknowledges and agrees that if the Customer continues using the Services beyond 72 hours after the notification is sent, the Customer has no objections to the new Sub-Processors appointed pursuant to clause 8.1.

8.4. Where a Sub-Processor fails to fulfil its obligations under the written agreement with Mailtrap which contains terms substantially the same as those set out in this DPA, Mailtrap remains fully liable to the Customer for the Sub-Processor’s performance of its agreement obligations.

8.5. The parties agree that Mailtrap will be deemed by them to control legally any Customer Personal Data controlled practically by or in the possession of its Sub-Processors.

9. Complaints, Data Subject requests and third-party rights

9.1. Mailtrap shall take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:

(a) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify, port and erase Personal Data, object to the processing and automated processing of Personal Data, and restrict the processing of Personal Data; and

(b) information or assessment notices served on the Customer by the Commissioner or other relevant regulator under the Data Protection Legislation.

9.2. Mailtrap shall notify the Customer promptly in writing if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Customer Personal Data or to either party’s compliance with the Data Protection Legislation.

9.3. Mailtrap shall notify the Customer promptly if it receives a request from a Data Subject for access to their Customer Personal Data or to exercise any of their other rights under the Data Protection Legislation.

9.4. Mailtrap will give the Customer, at the Customer’s cost, its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5. Mailtrap shall not disclose the Customer Personal Data to any Data Subject or to a third party other than in accordance with the Customer’s written instructions, or as required by domestic, UK or US law.

10. Term and termination

10.1. This DPA will remain in full force and effect so long as:

(d) Mailtrap retains any of the Customer Personal Data related to the Terms of Service in its possession or control (Term).

10.2. Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Terms of Service in order to protect the Customer Personal Data will remain in full force and effect.

11. Data return and destruction

11.1. At the Customer’s written request, Mailtrap will give the Customer, or a third party nominated in writing by the Customer, a copy of or access to all or part of the Personal Data in its possession or control in the format and on the media reasonably specified by the Customer.

11.2. Subject to clause 11.3, on termination of the Terms of Service for any reason or expiry of its term, Mailtrap may, or at the Customer’s written direction will, securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any of the Customer Personal Data related to this DPA in its possession or control within 30 days upon receipt of Customer’s written direction or termination of the Terms of Service. For the purposes of this clause 11.2 Customer Personal Data shall be considered deleted or destroyed where it is put beyond further use of Mailtrap.

11.3. If any law, regulation, or government or regulatory body requires Mailtrap to retain any documents or materials or Customer Personal Data that Mailtrap would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents, materials or Customer Personal Data that it must retain, the legal basis for retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.

11.4. Mailtrap will certify in writing to the Customer that it has destroyed, destroyed or returned the Customer Personal Data, as the case may be, promptly upon written request by the Customer.

12. Records

12.1. Mailtrap will keep detailed, accurate and up-to-date written records regarding any processing of the Customer Personal Data, including but not limited to, the access, control and security of the Customer Personal Data, approved Sub-Processors, the processing purposes, categories of processing, any transfers of Personal Data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in 5.1 (Records).

12.2. Mailtrap will ensure that the Records are sufficient to enable the Customer to verify Mailtrap’s compliance with its obligations under this DPA and Mailtrap will provide the Customer with copies of the Records upon request.

13. Audit

13.1. Mailtrap will permit the Customer and/or its third party representatives to conduct reasonable audits of Mailtrap’s compliance with its obligations under this DPA, on reasonable written notice at a frequency of not more than once per year at the Customer’s expense.

13.2. The frequency restrictions set out in clause 13.1 shall not apply where the Customer is directly required by the Commissioner or other relevant regulator to audit Mailtrap’s compliance with its obligations under this DPA.

14. Warranties

14.1. Mailtrap warrants and represents that:

(e) Mailtrap Personnel accessing the Customer Personal Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation; and

(f) it will process the Customer Personal Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments.

14.2. The Customer warrants and represents that Mailtrap’s expected use of the Customer Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation.

15. Notice

15.1. Any notice given to a party under or in connection with this DPA shall be in writing and shall be:

(f) if given by Mailtrap:

(i) delivered by commercial courier to the Customer’s registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the following address (or an address substituted in writing by the Customer): the email address for the Customer provided to Mailtrap by the Customer; or

(iii) delivered to the Customer via Mailtrap service.

(h) if given by the Customer, sent by email to the following address (or an address substituted in writing by Mailtrap): privacy@mailtrap.io

15.2. Any notice shall be deemed to have been received:

(i) if delivered by commercial courier, on signature of a delivery receipt or at the time the notice is left at the proper address; or

(j) if sent by email at the time of the transmission provided that no bounceback or out of office message is received.

15.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.4. This DPA has been entered into on the date the Terms of Service is executed.

ANNEX A – Personal Data processing purposes and details

Part 1 – Role of the parties

1.1 Where Mailtrap acts as a Processor:

When processing the Customer Personal Data of Data Subjects whose Personal Data is collected through the Service provisioned under the Terms of Service.

Part 2 – Particulars of processing

2.1 Subject matter of processing

The performance of Mailtrap’s duties under the Terms of Service.

2.2 Duration of processing

For the term of the Terms of Service and for such time afterwards as required for the parties to exercise their rights and obligations under clause 11.

2.3 Nature of processing

The processing of Customer Personal Data to enable Mailtrap to comply with its duties and provide services under the Terms of Service.

2.4 Business Purposes

To enable Mailtrap to perform its duties and provide services under the Terms of Service.

2.5 Personal Data categories

Identity data, contact details and such other Personal Data categories as relevant.

2.6 Data Subject types

Clients or customers of the Customer and/or such clients’ or customers’ staff and such other Data Subjects whose Personal Data is processed by Mailtrap in connection with the performance of its duties and providing services under the Terms of Service.

ANNEX B – Security measures

Mailtrap will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Personal Data transferred to Mailtrap as described in the Mailtrap’s Security Practices, including but not limited to:

Realization of a regular backup schedule.
The automated system of vulnerability evaluation in the Service source code.
Automated user data retention according to policy.
Division of premises into different security zones.
Encryption of user emails using the AES256 algorithm.
Definition of employees who are granted access.
Implementation of partial access rights for respective Data and functions.
Secret management using AWS KMS, Google KMS, AWS parameter store, Chef vault with encryption of all data.
Implementation of policy on access- and user-roles using AWS IAM.
Firewall protection for all unknown IP addresses.
Brute Force Attacks detection and isolation system.
SSL and TLS to transfer all data securely over a computer network.
Store billing data of customers in an external PCI compliant provider.
Use of AWS hosting that is in compliance with:

SOC 1/ISAE 3402, SOC 2, SOC 3
FISMA, DIACAP, and FedRAMP
PCI DSS Level 1
ISO 9001, ISO 27001, ISO 27017, ISO 27018

Use of Google hosting that is in compliance with:
- FedRAMP
- HIPAA
- SOC 1, SOC 2, SOC 3

Appendix 1

SECTION I

Clause 1

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter “entity/ies”) transferring the personal data, as listed in Annex I.A. (hereinafter each “data exporter”), and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”)

have agreed to these standard contractual clauses (hereinafter: “Clauses”).

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8 – Module One: Clause 8.5 (e) and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.

MODULE TWO: Transfer controller to processor

8.1. Instructions

(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

8.2. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

8.3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.4. Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data. Duration of processing and erasure or return of data. Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.5. Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(c) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.6. Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “sensitive data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8.7. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union⁴ (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.8. Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non- compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

MODULE THREE: Transfer processor to processor

8.1. Instructions

(a) The data exporter has informed the data importer that it acts as processor under the instructions of its controller(s), which the data exporter shall make available to the data importer prior to processing.

(b) The data importer shall process the personal data only on documented instructions from the controller, as communicated to the data importer by the data exporter, and any additional documented instructions from the data exporter. Such additional instructions shall not conflict with the instructions from the controller. The controller or data exporter may give further documented instructions regarding the data processing throughout the duration of the contract.

(c) The data importer shall immediately inform the data exporter if it is unable to follow those instructions. Where the data importer is unable to follow the instructions from the controller, the data exporter shall immediately notify the controller.

(d) The data exporter warrants that it has imposed the same data protection obligations on the data importer as set out in the contract or other legal act under Union or Member State law between the controller and the data exporter.

8.2. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B., unless on further instructions from the controller, as communicated to the data importer by the data exporter, or from the data exporter.

8.3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the data exporter may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.

8.4. Accuracy

8.5. Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the controller and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

8.6. Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter “personal data breach”). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter or the controller. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(b) The data importer shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify, without undue delay, the data exporter and, where appropriate and feasible, the controller after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the data breach, including measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify its controller so that the latter may in turn notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

8.7. Sensitive data

8.8. Onward transfers

The data importer shall only disclose the personal data to a third party on documented instructions from the controller, as communicated to the data importer by the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.9. Documentation and compliance

(a) The data importer shall promptly and adequately deal with enquiries from the data exporter or the controller that relate to the processing under these Clauses.

(c) The data importer shall make all information necessary to demonstrate compliance with the obligations set out in these Clauses available to the data exporter, which shall provide it to the controller.

(d) The data importer shall allow for and contribute to audits by the data exporter of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. The same shall apply where the data exporter requests an audit on instructions of the controller. In deciding on an audit, the data exporter may take into account relevant certifications held by the data importer.

(e) Where the audit is carried out on the instructions of the controller, the data exporter shall make the results available to the controller.

(f) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

(g) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

MODULE TWO: Transfer controller to processor

(a) OPTION 2: GENERAL WRITTEN AUTHORISATION. The data importer has the controller’s general authorisation for the engagement of sub-processor(s). Should the data exporter require notification of any updates to the list of sub-processors, the data exporter may request such notification in writing by emailing privacy@mailtrap.io. Upon such a notification, the data importer shall specifically inform the data exporter in writing of any changes to that list through the addition or replacement of sub- processors.

(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

MODULE THREE: Transfer processor to processor

(a) OPTION 2: GENERAL WRITTEN AUTHORISATION The data importer has the controller’s general authorisation for the engagement of sub-processor(s). Should the data exporter require notification of any updates to the list of sub-processors, the data exporter may request such notification in writing by emailing privacy@mailtrap.io. Upon such a notification, the data importer shall specifically inform the data exporter in writing of any changes to that list through the addition or replacement of sub- processors.

(b) The data importer shall provide, at the data exporter’s or controller’s request, a copy of such a sub-processor agreement and any subsequent amendments. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

(c) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub- processor to fulfil its obligations under that contract.

(d) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

MODULE TWO: Transfer controller to processor

(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

MODULE THREE: Transfer processor to processor

(a) The data importer shall promptly notify the data exporter and, where appropriate, the controller of any request it has received from a data subject, without responding to that request unless it has been authorised to do so by the controller.

(b) The data importer shall assist, where appropriate in cooperation with the data exporter, the controller in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the controller, as communicated by the data exporter.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.

(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.

[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three: , if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

15.1. Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

[For Module Three: The data exporter shall forward the notification to the controller.]

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2. Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(ii) the data importer is in substantial or persistent breach of these Clauses; or
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) [For Modules One, Two and Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

[OPTION 1: These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Poland.

Clause 18

Choice of forum and jurisdiction

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of Poland.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

ANNEX I

A. LIST OF PARTIES

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

Data exporter:

Name: the Customer’s full legal name.

Address: the Customer’s address

Contact person’s name, position, and contact details: the name, position and contact details of the Customer’s data protection contact.

Activities relevant to the data transferred under the Clauses: use of Mailtrap Services

The data importer:

Name: Railsware Products Studio LLC

Address: 925 N La Brea Ave, Suite 400, office 560, West Hollywood, CA 90038, US

Contact person’s name, position, and contact details: Alessandra Silveira, Director, alessandra.silveira@rwco.co

Activities relevant to the data transferred under the Clauses: provision of Mailtrap Services

B. DESCRIPTION OF THE TRANSFER

Categories of data subjects whose personal data is transferred:

Authorized Users of the Service;
Employees of the Data Exporter;
Consultants of the Data Exporter;
Contractors of the Data Exporter;
Agents of the Data Exporter;
Customers of the Data Exporter; and/or
Third parties with which the Data Exporter conducts business.
Categories of data

The Personal Data transferred may include, but is not limited to the following categories of personal data:

Customer data uploaded to the Services under Customer’s accounts.
Identifiers: First and last name, phone number, email address, company name, bank card details, posting and billing address.
Any other data transferred by the Customer to Mailtrap in relation to exploitation of the Service.

Special categories of personal data transferred (if applicable) and applied restrictions or safeguards that fully takes into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:

Not applicable

Purpose(s) of the data transfer and further processing:

To enable Mailtrap to perform its duties and provide services under the Terms of Service (as defined in the DPA).
As a result, the data processing operations may include, but are not limited to:

Collection, storage, retrieval and other processing operations necessary to provide, maintain and update the Service for the Data Exporter’s use;
Disclosure by transmission, dissemination or otherwise making available data exporter’s data as necessary to provide the services in accordance with the data exporter’s instructions;
Disclosure as compelled by law
Maximum data retention periods, if applicable:
Data deleted immediately on the user request. To fully cleanup all the data from logs it could take up to 30 days.

С. COMPETENT SUPERVISORY AUTHORITY

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

Urząd Ochrony Danych Osobowych (Personal Data Protection Office)

ANNEX II – Technical and organisational measures to ensure the security of the data

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

The Processor will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of personal data transferred to Processor as described in the Mailtrap’s Security Practices, including but not limited to:

Realization of a regular backup schedule.
The automated system of vulnerability evaluation in the Service source code.
Automated user data retention according to policy.
Division of premises into different security zones.
Encryption of user emails using the AES256 algorithm.
Definition of employees who are granted access.
Implementation of partial access rights for respective Data and functions.
Secret management using AWS KMS, Google KMS, AWS parameter store, Chef vault with encryption of all data.
Implementation of policy on access- and user-roles using AWS IAM.
Firewall protection for all unknown IP addresses.
Brute Force Attacks detection and isolation system.
SSL and TLS to transfer all data securely over a computer network.
Store billing data of customers in an external PCI compliant provider.
Use of AWS hosting that is in compliance with:

SOC 1/ISAE 3402, SOC 2, SOC 3
FISMA, DIACAP, and FedRAMP
PCI DSS Level 1
ISO 9001, ISO 27001, ISO 27017, ISO 27018

Use of Google hosting that is in compliance with:
1. FedRAMP
2. HIPAA
3. SOC 1, SOC 2, SOC 3

ANNEX III – List of Sub-Processors

MODULE TWO: Transfer controller to processor

MODULE THREE: Transfer processor to processor

Mailtrap uses a range of third-party sub-processors that are authorized to process the Service user and customer data, and help us deliver the Service functionality, as well as the accompanying support services in full.

Our Sub-Processor List (as defined in the DPA) is here – https://mailtrap.io/sub-processors/ and may be amended from time to time.

Appendix 2 Background

(A) This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.

(B) This Addendum is subject to the terms of the Data Processing Agreement (DPA) between Mailtrap (as defined in the DPA) and the Customer (as defined in the DPA) and, where relevant, the interpretations and defined terms set forth in the DPA apply to the interpretation of this Addendum.

Agreed terms

Table 1: Parties

The Parties	Exporter (who sends the Restricted Transfer)	Importer (who receives the Restricted Transfer)
Parties’ details	Full legal name: the Customer’s full legal name. Trading name (if different): the Customer’s full trading name. Main address (if a company registered address): the Customer’s main address. Official registration number (if any) (company number or similar identifier): the Customer’s official registration number.	Full legal name: Railsware Products Studio, LLC Trading name (if different): Mailtrap Main address (if a company registered address): 925 N La Brea Ave, Suite 400, office 560, West Hollywood, CA 90038 Official registration number (if any) (company number or similar identifier): 4461258
Key Contact	Full name (optional): the full name of the Customer’s key data protection contact. Job title: the title of the Customer’s key data protection contact. Contact details including email: the contact details of the Customer’s key data protection contact.	Full Name (optional): Alessandra Silveira Job Title: Director Contact details including email: alessandra.silveira@rwco.co
Signature (if required for the purposes of Section ‎2)	N/A	N/A

Table 2: Selected SCCs, Modules and Selected Clauses

Addendum EU SCCs

The Approved EU SCCs, including the Appendix Information and with only the following modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum.

Module	Module in operation	Clause 7 (Docking Clause)	Clause 11 (Option)	Clause 9a (Prior Authorisation or General Authorisation)	Clause 9a (Time period)	Is personal data received from the Importer combined with personal data collected by the Exporter?
1	No
2	Yes	Yes	No	General Authorisation	The period set out in clause 8.1 of the DPA	–
3	Yes	Yes	No	General Authorisation	The period set out in clause 8.1 of the DPA	–
4	No

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Annex 1A: List of Parties: See Table 1 of this Addendum and clause 2.1(a) of the DPA.

Annex 1B: Description of Transfer: See Parts 1 and 2 of Annex A to the DPA.

Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: See Annex B to the DPA.

Annex III: List of Sub processors (Modules 2 and 3 only): Set out in the Sub-Processor List (as defined in the DPA).

Table 4: Ending this Addendum when the Approved Addendum changes

Ending this Addendum when the Approved Addendum changes

Which Parties may end this Addendum as set out in Section 19:
☒ Importer
☐ Exporter
☐ Neither Party

The Exporter has completed a transfer risk assessment (TRA). It has relied on the Department for Science, Innovation and Technology’s Analysis of the UK Extension to the EU-US data privacy framework published in September 2023 (the DSIT analysis).

The Exporter is satisfied that the DSIT analysis concludes that US laws and practices provide adequate protections for people whose personal information is transferred to the US for risks to people’s rights:

(i) arising in the US from third parties that are not bound by this IDTA accessing the transferred personal information in particular, government and public bodies; and

(ii) arising from difficulties enforcing the IDTA.

The Exporter considers that it is reasonable and proportionate for it to rely on the DSIT analysis, given the scope of this assessment is as required under Article 45 UK GDPR, and the enactment of adequacy regulations under Section 17A DPA 2018 by the Secretary of State and Parliament, on the basis of that assessment.

The Exporter will review this TRA if a new or amended version of the DSIT analysis is published, or the DSIT analysis is withdrawn.

Part 2: Mandatory Clauses

Entering into this Addendum

1. Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.

2. Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.

Interpretation of this Addendum

3. Where this Addendum uses terms that are defined in the Approved EU SCCs, those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:

Addendum: This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs.

Addendum EU SCCS: The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information.

Appendix Information: As set out in Table 3.

Appropriate Safeguards: The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) of the UK GDPR.

Approved Addendum: The template Addendum issued by the ICO and laid before Parliament in accordance with section 119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18.

Approved EU SCCs: The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

ICO: The Information Commissioner.

Restricted Transfer: A transfer which is covered by Chapter V of the UK GDPR.

UK: The United Kingdom of Great Britain and Northern Ireland.

UK Data Protection Laws: All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

UK GDPR: As defined in section 3 of the Data Protection Act 2018.

4. This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.

5. If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.

6. If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.

7. If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.

8. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.

Hierarchy

9. Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.

10. Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.

11. Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation ((EU) 2016/679), then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.

Incorporation of and changes to the EU SCCs

12. This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:

(a) together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;

(b) Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and

(c) this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.

13. Unless the Parties have agreed alternative amendments which meet the requirements of Section ‎12, the provisions of Section ‎15 will apply.

14. No amendments to the Approved EU SCCs other than to meet the requirements of Section ‎12 may be made.

15. The following amendments to the Addendum EU SCCs (for the purpose of Section ‎12) are made:

(a) references to the “Clauses” mean this Addendum, incorporating the Addendum EU SCCs;

(b) In Clause 2, delete the words:

“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;

“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;

(d) Clause 8.7(i) of Module 1 is replaced with:

“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;

(e) Clause 8.8(i) of Modules 2 and 3 is replaced with:

“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”

(f) References to “Regulation (EU) 2016/679”, “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 (General Data Protection Regulation)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;

(g) References to Regulation (EU) 2018/1725 are removed;

(h) References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with “the UK”;

(i) The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module 1 is replaced with “Clause 11(c)(i)”;

(j) Clause 13(a) and Part C of Annex I are not used;

(k) The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;

(l) In Clause 16(e), subsection (i) is replaced with:

“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;

(m) Clause 17 is replaced with:

“These Clauses are governed by the laws of England and Wales.”;

(n) Clause 18 is replaced with:

“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and

(o) The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.

Amendments to this Addendum

16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.

17. If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.

18. From time to time, the ICO may issue a revised Approved Addendum which:

(a) makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or

(b) reflects changes to UK Data Protection Laws.

The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.

19. If the ICO issues a revised Approved Addendum under Section ‎18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate and demonstrable increase in:

(a) its direct costs of performing its obligations under the Addendum; and/or

(b) its risk under the Addendum,

and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.

20. The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.

Railsware Products Studio LLC Data Processing Addendum

1. Introduction

1. Definitions and interpretation

2. Personal Data types and processing purposes

3. Mailtrap’s obligations

4. Mailtrap Personnel

5. Security

6. Personal Data Breach

7. Transfers of Customer Personal Data. International Transfers

8. Sub-Processors

9. Complaints, Data Subject requests and third-party rights

10. Term and termination

11. Data return and destruction

12. Records

13. Audit

14. Warranties

15. Notice

ANNEX A – Personal Data processing purposes and details

ANNEX B – Security measures

Appendix 1

ANNEX I

ANNEX II – Technical and organisational measures to ensure the security of the data

ANNEX III – List of Sub-Processors

Appendix 2

Background

Agreed terms

Table 1: Parties

Table 2: Selected SCCs, Modules and Selected Clauses

Table 3: Appendix Information

Table 4: Ending this Addendum when the Approved Addendum changes

In 3 Clicks