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, 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 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 the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
“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, 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 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 firstname.lastname@example.org, 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 the 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. 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.
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”)
Railsware Products Studio, Inc. (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.
For the purposes of the Clauses:
- (a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- (b) ‘the data exporter’ means the controller who transfers the personal data;
- (c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- (d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- (e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- (f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
- (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- (b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- (e) that it will ensure compliance with the security measures;
- (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- (g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- (i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- (j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- (d) that it will promptly notify the data exporter 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;
- (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the 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;
- (f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- (h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- (i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- (j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the standard contractual clauses
The data exporter is the entity identified as “Customer” in the DPA
The data importer is Railsware Products Studio, Inc., a provider of web services.
- 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.
The objective of the processing of Personal Data by Data Importer is 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
Appendix 2 to the standard contractual clauses
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
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 application 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
 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.