Railsware Products, Inc. Data Processing Addendum
Effective: 21 June, 2018
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This GDPR Data Processing Addendum (“DPA”) forms part of the master Terms of Service Agreement available at the Terms of Service ("Agreement"), entered into by and between You ("Customer" or "Controller") and Railsware Products, Inc. ("Mailtrap", "Processor"), in accordance to which Customer has accessed Mailtrap’s Application Services as outlined in the applicable Data Processing Agreement (DPA). The main goal of this DPA is to demonstrate agreement between the two parties in terms of the processing of Personal Data in compliance with the requirements of Data Protection Legislation as provided below.
This DPA is an amendment to the Agreement and is effective through its incorporation into the Agreement, which is specified in the Agreement. Once this DPA is incorporated into the Agreement, it will form a part of the Agreement.
"Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; where the purposes and means of such processing are determined by Union or Member State law, the Controller or the specific criteria for its nomination may be provided for by Union or Member State law.
"Processor" means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.
"Processing" means any activity or a set of activities which is performed on Personal Data, which includes the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data.
"Data Protection Law" means any data protection or data privacy law or regulation applicable to all individuals within within the European Union (EU) and the European Economic Area (EEA).
"GDPR" means the General Data Protection Regulation (GDPR) (EU) 2016/679 on data protection and privacy for all individuals within the European Union (EU) and the European Economic Area (EEA).
"Data Subject" means the identified or identifiable natural person to whom the Personal Data relates.
"Personal Data" means any data which relates to an identified or identifiable natural person ("Data Subject").
"Personal Data Breach" means a security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
"Sub-processor" means any person (including any third party, but excluding Mailtrap employees) appointed by or on behalf of Mailtrap to process data in connection with the Agreement.
"Railsware Affiliates" include Railsware Solutions FZ-LLC and other trademarks, such as Notemate, Smart Checklist for Jira. Enterprise or Smart Checklist for Jira. Free Trial add-ons, which belong to Railsware Products, Inc.
3. Data Processing
3.1. Types of Information
3.2. Purpose of the Processing
Mailtrap processes Personal and Navigational Information to perform its obligations under the Terms of Service Agreement. In no event will Mailtrap process any Personal or Navigational Data for its own purpose or those of any third party.
3.3. Duration of the Processing
Personal Data will be processed for the duration of the Agreement, subject to Section 4 of this DPA.
4. Obligations of Processor
4.1. Data processing
Mailtrap as the Processor agrees and warrants to process Personal Data only on behalf of the Controller and in compliance with its instructions and the Data Processing Addendum unless the instructions are unlawful; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the Controller of its inability to comply, in which case the Controller is entitled to suspend the transfer of data and/or terminate the contract.
Mailtrap as the Processor shall take the appropriate technical and organizational measures (specified in Appendix 2) to adequately protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data.
Mailtrap as the Processor shall ensure that any personnel whom we authorize to process Personal Data on Mailtrap’s behalf is subject to confidentiality obligations with respect to that Personal Data. The undertaking to confidentiality shall continue after the termination of the above-entitled activities.
Mailtrap ensures that its personnel who access Personal Data are subject to confidentiality obligations that restrict their ability to disclose Customer Personal Data.
4.4. Personal Data Breaches
Mailtrap as the Processor is obliged to notify the Controller about a Personal Data Breach not later than 72 hours after having become aware of it.
4.5. Inquiries from the Controller
Mailtrap as the Processor will deal promptly and properly with all inquiries from the Controller relating to its processing of Personal Data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred.
4.6. Data Subject Requests
Mailtrap as the Processor shall
- (i) inform the Controller if it receives a request from a Data Subject under any Applicable Law with respect to Controller Personal Data, and
- (ii) not respond to the request except: on the written instructions of the applicable Controller Group Member; or as required by Applicable Laws to which the Contracted Processor is subject, in which case Processor shall (to the extent permitted by Applicable Laws) inform Controller of that legal requirement before the Contracted Processor responds to the request.
Mailtrap as the Processor may hire other companies to provide limited services on its behalf. Any such sub-processors will be permitted to process Personal Data only to deliver the services Mailtrap has retained them to provide, and they shall be prohibited from using Personal Data for any other purpose. Mailtrap remains responsible for its sub-processors’ compliance with the obligations of this DPA. Any subcontractors to whom Mailtrap transfers Personal Data will have entered into written agreements with Mailtrap requiring that they abide by terms substantially similar to this DPA.
Mailtrap as the Processor will promptly notify the Controller about:
- (i) any legally binding request for disclosure of the Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
- (ii) any accidental or unauthorised access; and
- (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so.
4.9. Data Protection Impact Assessment
If the Controller is required to carry out a Data Protection Impact Assessment or a subsequent consultation within the meaning of Articles 35 and 36 of the GDPR, the Data Processor will cooperate with such, in the event that one is necessary and following a reasonable request to do so.
4.10. Data Transfers
4.11. Deletion or Retrieval of Personal Data
Upon termination or expiration of the Agreement or upon Customer’s request, Mailtrap will delete or return to Customer all individual- and account-related Personal Data that is in its possession or control (including any Data subcontracted to a third party for processing). This requirement will not apply to the extent that Mailtrap is required by any EU (or any EU Member State) law to retain some or all of the Data, in which event Mailtrap will isolate and protect the Data from any further processing except to the extent required by such law.
Mailtrap shall, upon Customer request (not to exceed one request per calendar year) by email to email@example.com, demonstrate compliance with the obligations set out in this DPA in writing. If the information Mailtrap provides, in Customer’s reasonable judgement, is not sufficient to confirm Mailtrap’s compliance with the terms of this Agreement, then the GDPR compliant Customer or an accredited and GDPR compliant third-party audit firm that is not a competitor of Mailtrap and other Railsware Affiliates agreed to by both Customer and Mailtrap may audit Mailtrap’s compliance with the terms of this Agreement during regular business hours in a manner that is not disruptive to Mailtrap’s business, upon reasonable advance notice to Mailtrap of no less than 60 days and subject to reasonable confidentiality procedures. The Controller is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Mailtrap expends for any such audit, in addition to the rates for support services performed by Mailtrap and any expenses incurred by Mailtrap in complying with this Agreement. Before the commencement of any such audit, the Controller and Mailtrap shall mutually agree upon the timing, duration and scope of the audit, which shall not involve physical access to the servers from which the data processing services are provided. You shall promptly notify Mailtrap of information regarding any non-compliance discovered during the course of an audit. The Controller may not audit Mailtrap more than once annually.
6. Governing Law
This Addendum shall be governed by the law of the Member State in which the Data Subject is established.
In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail.
Upon written notice to Controller, Mailtrap may revise this DPA from time to time. Controller, in turn, will review the suggested amendments and respond within fourteen (14) days after receipt of the notice. If the Controller does not legitimately object within fourteen (14) days time frame, Mailtrap will consider that the Controller has no objections to the suggested revisions and will publish an updated version of the DPA at https://mailtrap.io/dpa. If the Controller objects to the suggested amendments, the parties should cooperate to come to an agreement.
If the Controller does not agree to any changes to the Addendum which Processor considers to be critical, the Controller should not continue to use the Mailtrap application.