Railsware Products Studio LLC Data Processing Addendum

1. Introduction

This GDPR Data Processing Addendum (“DPA”, “Data Processing Addendum”, “Addendum”) forms part of the master Terms of Service Agreement available at Terms of Service (“Agreement”), entered into by and between You (“You”, or “Customer”, “Controller”) and Railsware Products Studio LLC (“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.

2. Definitions

“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 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.

“Standard Contractual Clauses“ means Annex 1, attached to and forming part of this DPA pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (Text with EEA relevance).

“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 affiliates, and related and associated persons of Railsware Products Studio LLC.

3. Data Processing

3.1. Types of Information

Mailtrap collects Personal (see article 2 of the Privacy Policy) and Navigational Information in order to leverage Mailtrap Application functionality to Customers, as well as offer them a high-quality user experience while they browse the Mailtrap website.

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.

4.2. Security

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, unauthorized disclosure of, or access to Personal Data.

4.3. Confidentiality

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 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.

4.7. Sub-processors

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.

A list of subcontractors is available to the Customer (article 5 of the Privacy Policy). If the Controller requires prior notification of any updates to the list of sub-processors, the Controller may request such notification in writing by emailing privacy@mailtrap.io. Mailtrap will update the list within seventy-two (72) hours of any such updates. Legitimate objections must contain reasonable and documented grounds relating to a subcontractor’s non-compliance with applicable Data Protection Legislation. If in Mailtrap’s reasonable opinion, such objections are not legitimate, the Controller may, by providing written notice to Mailtrap, terminate the Agreement.

4.8. Notifications

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

Mailtrap customers acknowledge and agree that, in connection with the performance of the services under the Agreement, Personal Data may be transferred outside of the European Union (EU) and the European Economic Area (EEA). While transferring the data, Mailtrap takes the necessary measures to safeguard the activity in general, and the data subjects in particular to ensure an appropriate level of protection for their fundamental rights. This Privacy Policy shall apply even if Personal Information is transferred or accessed from other countries.

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.

5. Compliance

Mailtrap shall, upon Customer request (not to exceed one request per calendar year) by email to privacy@mailtrap.io, demonstrate compliance with the obligations set out in this DPA in writing. If the information Mailtrap provides, in Customer’s reasonable judgment, 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.

7. Miscellaneous

In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail.

Mailtrap may revise this DPA from time to time. The 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 a fourteen (14) days time frame, Mailtrap will consider that the Controller has no objections to the suggested revisions and agrees with the updated version of the DPA on the website. 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.

Annex 1

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

The entity identified as “Customer” in the DPA (the “data exporter”)

and

Railsware Products Studio LLC (the “data importer”)

each a “party”; together “the parties”,

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

SECTION I

Clause 1

(a) The purpose of these standard contractual clauses (the 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) Parties:

• 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
• the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via an intermediary entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each “data importer”).
  
  have agreed to these standard data protection clauses (hereinafter: “Clauses”).

(c) 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 add or update information in the Annexes. This does not prevent the Parties from including the standard contractual clauses laid down in this Clauses in a wider contract, and to add other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses or prejudice the fundamental rights or freedoms of data subjects. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of the Regulation (EU) 2016/679.

(d) These Clauses apply with respect to the transfer of personal data as specified in Clause 5 of Section I [Description of the Transfer(s)].

(e) Annexes I, II, and III form an integral part of these Clauses.

Clause 2

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)  Section I;

(ii)  Section II – Module One: Clause 1.5 (d) and Clause 1.9(b); Module Two: Clause 1.9(a), (c), (d) and (e); Module Three: Clause 1.1 and Clause 1.9(a), (c), (d) and (e); Module Four: Clause 1.1, Clause 1.2 and Clause 1.3;

(iii)  Section II, Clause 3.1 (c), (d) and (e);

(iv)  Section II, Clause 4;

(v)  Section II – Module One: Clause 7(a), (b); Modules Two and Three: Clause 7(a), (b);

(vi)  Section II, Clause 8;

(vii)  Section II, Clause 9;

(viii)  Section III, Clause 1 and Clause 3(a), (b).

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

Clause 3

Interpretation

• (a)  Where these Clauses use the terms 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 4

Hierarchy

In the event of a conflict between these Clauses and the provisions of any other agreement between the Parties existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5

Description of the transfer(s)

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

Clause 6

Docking clause

• (a)  An entity that is not a Party to the 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 Annex I.A [List of Parties], Annex I.B [Description of the transfer(s)] and Annex II [Technical and organisational measures].
• (b)  Once Annex I.A. is completed and signed, the acceding entity shall be treated as a Party to these Clauses and shall have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
• (c)  The acceding Party shall have no rights or obligations arising from the period prior to the date of signing Annex I.A.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 1

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able to satisfy its obligations under these Clauses.

1.1 Instructions

• (a)  The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give further instructions regarding the data processing, within the framework the contract agreed with the data importer, throughout the duration of the contract, but such instructions shall always be documented.
• (b)  The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

1.2 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 [Description of the transfer(s)].

1.3 Transparency

The Parties shall provide the data subject with a copy of the Clauses upon request. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II, the Parties may redact the text of the Annexes to these Clauses prior to sharing a copy, but shall provide a meaningful summary where otherwise the data subject would not be able to understand the content of the Annexes. This is notwithstanding the obligations of the data exporter under Articles 13 and 14 Regulation (EU) 2016/679, in particular to inform the data subject about the transfer of special categories of data.

1.4 Accuracy

If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay. In this case the data importer shall cooperate with the data exporter to erase or rectify the data.

1.5 Storage limitation and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. Upon termination of the provision of the processing services, the data importer shall delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so . This is notwithstanding any requirements under local law applicable to the data importer prohibiting return or destruction of the personal data. In that case, the data importer warrants that it will guarantee, to the extent possible, the level of protection required by these Clauses and will only process it to the extent and for as long as required under that local law.

1.6 Security of processing

1. The data importer and, during the transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against 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 risks involved in the processing, the nature of the personal data and the nature, scope, context and purposes of processing, and in particular consider encryption during transmission and anonymisation or pseudonymisation where this does not prevent fulfilling the purpose of processing. 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 this obligation, the data importer shall implement the technical and organisational measures specified in Annex II [Technical and organisational measures].
2. 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. The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3. In the event of a personal data breach concerning personal data processed by the data importer, the data importer shall take appropriate measures to address the personal data 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 be taken 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 be provided subsequently as it becomes available without undue delay.
4. (d) The data importer shall cooperate in good faith with and assist the data exporter in any way necessary to enable the data exporter to comply with its obligations under the Regulation (EU) 2016/679, notably 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.

1.7 Special categories of personal data

To the extent the transfer includes personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic 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 “special categories of data”), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B [Description of the transfer(s)].

1.8 Onward transfers

The data importer shall only disclose the personal data to a third party on the basis of documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (hereinafter “onward transfer”) if the third party is or agrees to be bound by these Clauses or, alternatively, an onward transfer by the data importer may only take place if:

• (i)  the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation (EU) 2016/679 with respect to the processing in question;
• (ii)  the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 Regulation (EU) 2016/679 that covers the onward transfer.

Any disclosure may only take place subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

1.9 Documentation and compliance

• (a)  The data importer shall promptly and properly deal with inquiries 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 on behalf of the data exporter under its responsibility.
• (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 allow for and contribute to reviews of data files and documentation, or of audits of the processing activities covered by these Clauses, in particular 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, to mandate, at its own cost, an independent auditor or to rely on an independent audit mandated by the data importer. Where the data importer mandates an audit, it has to bear the costs of the independent auditor. Audits may also include inspections at the premises of the data importer and shall be carried out with reasonable notice.
• (e)  The data importer 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 2

Local laws affecting compliance with the Clauses

• (a)  The Parties warrant that they have no reason to believe that the laws 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 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) GDPR, are not in contradiction with the 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 content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred;
  • (ii)  the laws of the third country of destination relevant in light of the circumstances of the transfer, including those requiring to disclose data to public authorities or authorising access by such authorities, as well as the applicable limitations and safeguards;
  • (iii)  any safeguards in addition to those under these Clauses, including the technical and organisational 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 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.
• The parties agree to document the assessment under paragraph b) and make it available to the competent supervisory authority upon request.
• (e)  The data importer agrees to promptly notify the data exporter 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 not in line with the requirements under paragraph a), including following a change of the laws in 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 under paragraph a).
• (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 the Clauses, the data exporter shall promptly identify appropriate measures (such as, for instance, technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and / or data importer to address the situation, if appropriate in consultation with the [for Module Three: controller and] competent supervisory authority. If the data exporter decides to continue the transfer, based on its assessment that these additional measures will allow the data importer to fulfil its obligations under the Clauses, the data exporter shall forward the notification to the competent supervisory authority together with an explanation, including a description of the measures taken. 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 inform the competent supervisory authority and shall be entitled to terminate the contract. In case the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the responsible Party, unless the Parties have agreed otherwise. When the contract is terminated pursuant to this Clause, Section III, Clause 1 (d) and (e) shall apply.

Clause 3

Obligations of the data importer in case of government access requests

3.1 Notification

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

(i) receives a legally binding request by a public authority under the laws of the country of destination for 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;

(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.

3.2 Review of legality and data minimization

• (a)  The data importer agrees to review, under the laws of the country of destination, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it concludes that there are grounds under the laws of the country of destination to do so. When challenging a request, the data importer shall seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations of the data importer pursuant to Clause 2(e) of this Section.
• (b)  The data importer agrees to document its legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make it available to the data exporter. It shall also make it available to the competent supervisory authority upon request.
• (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.

Clause 4

Use of sub-processors

• (a)  GENERAL WRITTEN AUTHORISATION: The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s). The list of sub-processors the data importer intends to engage can be found in Annex III. The data importer shall inform the data exporter in writing of any intended changes of that list through the addition or replacement of sub-processors at least 10 days in advance, thereby giving the data exporter the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The Parties shall keep Annex III up to date.
• (b)  Where the data importer engages a sub-processor for carrying out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract which provides for the same data protection obligations as the ones 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 Section II, Clause 1.8 [Onward transfers]. 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 subsequent amendments to the data exporter.
• (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 of bankruptcy of the data importer, the data exporter shall be a third party beneficiary to the sub-processor contract and shall have the right to enforce the contract against the sub-processor, including where applicable by instructing the sub-processor to erase or return the personal data.

Clause 5

Data subject rights

• (a)  The data importer shall promptly notify the data exporter about any inquiry or request received directly from a data subject. It shall not respond to that inquiry or request itself unless and until it has been authorised to do so by the data exporter.
• (b)  Taking into account the nature of the processing, the data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ inquiries and requests for the exercise of their rights under the GDPR.

Clause 6

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 or requests. It shall promptly deal with any complaints or requests by a data subject.

• (a)  The Parties agree that if there is a dispute between a data subject and one of the Parties as regards compliance with these Clauses, they shall keep each other informed about such proceedings and, where appropriate, cooperate in resolving the issue in a timely fashion.
• (b)  Where the dispute is not amicably resolved and the data subject invokes a third-party beneficiary right pursuant to Clause 2 of Section I, the data importer accepts the decision of the data subject to:

(i) lodge a complaint with the competent supervisory authority within the meaning of Clause 9 of Section II [Supervision];

(ii) refer the dispute to the competent courts within the meaning of Clause 3 of Section III [Choice of forum and jurisdiction].

(c) The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) GDPR.

(d)  The data importer accepts to abide by a decision binding under the applicable EU / Member State law.

(e)  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 7

Liability

• (a)  Each Party shall be liable to the other Party/ies for any material or non-material damages it causes the other Party/ies by any breach of these Clauses.
• (b)  Liability as between the Parties is limited to actual damage suffered. Punitive damages are excluded.
• (c)  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 causes the data subject for any breach of the third party beneficiary rights under these Clauses.

• (d)  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 causes the data subject for any breach of 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, the controller under the GDPR.
• (e)  Where more than one Party is responsible for any damage caused to the data subject resulting from a breach of these Clauses, both Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against either of these Parties.
• (f)  The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 8

Indemnification

• (a)  The Parties agree that if one Party is held jointly and severally liable for a breach of these Clauses together with another Party, it is entitled to claim back as indemnification that part of the liability that corresponds to the other Party’s part of responsibility.
• (b)  Indemnification is contingent upon the Party to be indemnified:
  • (i)  promptly notifying the other Party of a claim, and
  • (ii)  providing reasonable cooperation and assistance to the other Party in defence of such claim.

Clause 9

Supervision

• (a)  The supervisory authority with responsibility for ensuring compliance by the data exporter with the GDPR as regards the data transfer, namely Supervisory Authority and Member State of data exporte, shall act as competent supervisory authority. 
• (b)  The data importer agrees to submit itself to the jurisdiction of the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit itself 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 – FINAL PROVISIONS

Clause 1

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 notwithstanding Clause 2(f) of Section II.
• (c)  The data exporter shall be entitled to terminate the contract where:
  • (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,
  • (ii)  the data importer is in substantial or persistent breach of these Clauses, or
  • (iii)  the data importer fails to comply with a binding decision of a competent court or the competent supervisory authority regarding its obligations under these Clauses,
• In this case, it shall inform the competent supervisory authority 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 responsible Party, unless the Parties have agreed otherwise.
• (d)  Personal data that has already been transferred prior to the termination of the contract shall [for Modules One, Two and Three: at the choice of the data exporter immediately be returned to the data exporter or destroyed in their entirety. The same shall apply to any copies of the data] [for Module Four: be destroyed in their entirety, including any copy thereof]. The data importer shall certify the destruction of the data to the data exporter. These obligations are notwithstanding any requirements under local law applicable to the data importer that prohibits return or destruction of the personal data transferred. In that case, the data importer warrants that it will ensure, to the extent possible, the level of protection required by 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) GDPR that covers the transfer of personal data to which these Clauses apply; or (ii) the GDPR 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 the GDPR.

Clause 2

Governing law

These Clauses shall be governed by the law of the Member State of the European Union where the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another Member State of the European Union that allows for third-party beneficiary rights. The Parties agree that this shall be the law of Poland.

Clause 3

Choice of forum and jurisdiction

• (a)  Any dispute arising from these Clauses shall be resolved by the courts of a Member State of the European Union. The Parties agree to submit themselves to the jurisdiction of such courts.
• (b)  The Parties agree that those shall be the courts of Poland.
• (c)  Legal proceedings by a data subject against the data exporter and / or data importer may also be brought before the courts of the Member State where the data subject has his / her habitual residence.

ANNEX I

A. LIST OF PARTIES

Data exporter

The data exporter is the entity identified as “Customer” in the DPA

Data importer

The data importer is Railsware Products Studio LLC, a provider of web services.

Name Railsware Products Studio LLC

Address: 118 Coalpit Hill Road Danbury, CT 06810 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 Mailtrap Application;
• 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, IP address. We also collect Client ID that is assigned to your browser, and User ID that is associated with the use of the Application and your personal account.
• Usage of Site and Application: Information on the User interaction with Site and Mailtrap Application: data which refers to your computer and your visits to the Site and Application such as your browser type, referral source, length of visit and pages viewed.
• Geolocation data: Geographical location which refers to your computer and your visits to the Site and the Application.

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:

The objective of the processing of Personal Data by Data Importer is the provision of the Services initiated by Customer from time to time. 

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 Application 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 application logs it could take up to 30 days.

ANNEX II – TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

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:

1. Realization of a regular backup schedule.
2. The automated system of vulnerability evaluation in the application source code.
3. Automated user data retention according to policy.
4. Division of premises into different security zones.
5. Encryption of user emails using the AES256 algorithm.
6. Definition of employees who are granted access.
7. Implementation of partial access rights for respective Data and functions.
8. Secret management using AWS KMS, Google KMS, AWS parameter store, Chef vault with encryption of all data.
9. Implementation of policy on access- and user-roles using AWS IAM.
10. Firewall protection for all unknown IP addresses.
11. Brute Force Attacks detection and isolation system.
12. SSL and TLS to transfer all data securely over a computer network.
13. Store billing data of customers in an external PCI compliant provider.
14. 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

15. 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

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

Entity Name	Purpose	Location
Amazon Webservices, Inc.	Infrastructure	United States
Google Inc.	Infrastructure	United States
SendGrid, Inc.	Marketing and Customer Support	United States
Facebook, Inc.	Marketing Analytics	United States
Twitter, Inc.	Marketing Analytics	United States
LinkedIn Ireland Unlimited Co	Marketing Analytics	Ireland
HubSpot, Inc.	Marketing Analytics	United States
Mouseflow, ApS.	Marketing Analytics	Denmark
HelpScout Inc.	Customer Support	United States
PayPal, Inc. (Braintree)	Payment processing	United States
Slack Technologies Inc	Communication	United States
Aut O’Mattic A8C Ireland Ltd. (Automattic)	Infrastructure	Ireland
Salesforce.com, Inc. (Heroku)	Infrastructure	United States
Typeform SL	Customer Feedback	Spain
Microsoft, Inc. (Clarity)	Marketing Analytics	United States
SupportYourApp Limited	Customer Support	Hong Kong