Last updated: November 25, 2021
Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of Customer's Authorized Affiliates, if and to the extent 19 Signals processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term "Customer" shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
In the course of providing the Services to Customer pursuant to the Agreement, 19 Signals may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
"Affiliate" means (a) any entity on whose behalf Customer obtained the 19 Signals Services, and/or (b) any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Authorized Affiliate" means any of Customer's Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and 19 Signals, but has not signed its own Agreement with 19 Signals and is not a "Customer" as defined under the Agreement.
"Controller" means the entity which determines the purposes and means of the Processing of Personal Data.
"Data Protection Laws and Regulations" means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
"Data Subject" means the identified or identifiable person to whom Personal Data relates.
"GDPR" means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
"Personal Data" means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
"Processing" (including its various forms) means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
"Processor" means the entity which Processes Personal Data on behalf of the Controller.
"19 Signals" means the 19 Signals entity which is a party to this DPA, as specified in the section "HOW THIS DPA APPLIES" above, being 19 Signals, LLC, an Wyoming Limited Liability Company.
"Standard Contractual Clauses" means the agreements entered into by and between Customer and 19 Signals and attached hereto as Schedules 3 and 4 for the international transfer of personal data to third countries which according to the European Commission, the Swiss Federal Council, and/or the UK Government do not ensure an adequate level of data protection.
"Sub-processor" means any Processor engaged by 19 Signals.
"Supervisory Authority" means an independent public authority which is established by an EEA State pursuant to the GDPR, the UK's Information Commissioner's Office and/or the Swiss Federal Data Protection and Information Commissioner.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is always a Controller of Personal Data and 19 Signals is either a Controller or a Processor depending on the type of and purpose for which the Personal Data are Processed. In particular, the parties acknowledge and agree that 19 Signals Processes Personal Data as a
2.1.1 Processor: in the course of the provision of project management and email services to Customer. Where 19 Signals is Processing Personal Data as a Processor clauses 2.2 and 3 through 12 of this DPA shall apply to the Processing of Personal Data by 19 Signals; and
2.1.2 Controller: for purposes of Customer account management and billing, direct marketing, Customer support services, data analytics, information security, product fulfilment, in connection with surveys, competitions and blogs. Where 19 Signals is Processing Personal Data as a Controller clauses 2.2, 11, and 12.3 of this DPA shall apply to the Processing of Personal Data by 19 Signals.
2.2 Customer's Processing of Personal Data. Customer shall, in its use of the Services:
2.2.1 Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer's instructions for the Processing of Personal Data (where 19 Signals is Processing Personal Data as a Processor) shall comply with Data Protection Laws and Regulations;
2.2.2 have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data;
2.2.3 have provided adequate notices to, and obtained valid consents from, any data subjects, relating to the Processing (including the sharing) of Personal Data by Customer and as applicable, to the transfer of such Personal Data outside of the EEA/Switzerland/UK; and
2.2.4 shall not, by act or omission, cause 19 Signals to violate any Data Protection Laws and Regulations, notices provided to, or consents obtained from, data subjects as result of Processing the Personal Data.
3. 19 SIGNALS'S PROCESSING OF PERSONAL DATA
3.1 19 Signals shall treat Personal Data as confidential information and shall only Process Personal Data on behalf of and in accordance with Customer's documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customers and/or Invited Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
3.2 Details of the Processing. The subject-matter of Processing of Personal Data by 19 Signals is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 2 (Details of the Processing) to this DPA.
4. DATA SUBJECT REQUESTS
19 Signals shall, to the extent legally permitted, promptly notify Customer if 19 Signals receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure ("right to be forgotten"), data portability, object to the Processing, or its right not to be subject to an automated individual decision making ("Data Subject Request"). Taking into account the nature of the Processing, 19 Signals shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer's obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, 19 Signals shall upon Customer's request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent 19 Signals is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from 19 Signals's provision of such assistance.
5. 19 SIGNALS PERSONNEL
5.1 Confidentiality. 19 Signals shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. 19 Signals shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
5.2 Reliability. 19 Signals shall take commercially reasonable steps to ensure the reliability of any 19 Signals personnel engaged in the Processing of Personal Data.
5.3 Limitation of Access. 19 Signals shall ensure that 19 Signals's access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
5.4 Data Protection Officer. Based on 19 Signals's processing activities, 19 Signals is not required to appoint a Data Protection Officer. 19 Signals reserves the right to voluntarily appoint a Data Protection Officer in the future.
6.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) 19 Signals's Affiliates may be retained as Sub-processors; and (b) 19 Signals and 19 Signals's Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. 19 Signals or a 19 Signals Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
6.2 List of Current Sub-processors and Notification of New Sub-processors. 19 Signals shall make available to Customer the current list of Sub-processors for the 19 Signals Services. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location ("Sub-processor Documentation"). 19 Signals, through notification to the Customer shall provide notification of a new Sub-processor(s) before authorizing any new Subprocessor(s) to Process Personal Data in connection with the provision of the applicable Services.
6.3 Objection Right for New Sub-processors. Customer may object to 19 Signals's use of a new Sub-processor by notifying 19 Signals promptly in writing within ten (10) business days after receipt of 19 Signals's notice in accordance with the mechanism set out in Section 6.2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, 19 Signals will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer's configuration or use of the Services to avoid Processing of Personal Data by the objectedto new Sub-processor without unreasonably burdening the Customer. If 19 Signals is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Agreement with respect only to those Services which cannot be provided by 19 Signals without the use of the objected-to new Sub-processor by providing written notice to 19 Signals. 19 Signals will refund Customer any prepaid fees covering the remainder of the term of such Agreement following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
Controls for the Protection of Customer Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
8. CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
19 Signals maintains security incident management policies and procedures specified in the Security, Privacy and Architecture Documentation and the Agreement. 19 Signals shall, notify Customer without undue delay, and in compliance with applicable laws, after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by 19 Signals or its Sub-processors of which 19 Signals becomes aware (a "Customer Data Incident"). 19 Signals shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as 19 Signals deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within 19 Signals's reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer's Invited Users.
9. RETURN AND DELETION OF CUSTOMER DATA
19 Signals shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security and Privacy Documentation.
10. AUTHORIZED AFFILIATES
10.1 Contractual Relationship. The parties acknowledge and agree that, by entering into the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between 19 Signals and each such Authorized Affiliates subject to the provisions of the Agreement and this Section 10. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, by Customer entering into this DPA, an Authorized Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services and Content by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Customer.
10.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with 19 Signals under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliate.
10.3 Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with 19 Signals, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
10.3.1 Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against 19 Signals directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for all of its Authorized Affiliates together (as set forth, for example, in Section 10.3.2, below).
10.3.2 The parties agree that the Customer that is the contracting party to the Agreement shall, when carrying out an on-site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on 19 Signals and its Sub-processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of different Authorized Affiliates in one single audit.
11. LIMITATION OF LIABILITY
Each party's and all of its Affiliates' liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Authorized Affiliates and 19 Signals, whether in contract, tort or under any other theory of liability, is subject to the limitations of liability set forth in the Agreement, and such limitations apply to the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, 19 Signals's and its Affiliates' total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA. Also for the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules and Appendices.
12. EUROPEAN SPECIFIC PROVISIONS
12.1 GDPR. 19 Signals will Process Personal Data in accordance with Data Protection Laws and Regulations including the GDPR requirements directly applicable to 19 Signals's provision of its Services.
12.2 Data Protection Impact Assessment. Upon Customer's request, 19 Signals shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer's obligation under the GDPR, or other Data Protection Laws and Regulations, to carry out a data protection impact assessment related to Customer's use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to 19 Signals. 19 Signals shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 12.2 of this DPA, to the extent required under the GDPR or other Data Protection Laws and Regulations.
12.3 Transfer mechanisms for data transfers. Subject to the additional terms in Schedule 1, 19 Signals makes available the transfer mechanisms listed below which shall apply, to any transfers of Personal Data under this DPA from the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations:
12.3.1 The Standard Contractual Clauses set forth in Schedule 3 to this DPA apply to transfers of personal data made in connection with the Processing described in clause 2.1.1 of this DPA subject to the additional terms in Schedule 1;
12.3.2 The Standard Contractual Clauses set forth in Schedule 4 to this DPA apply to transfers of personal data made in connection with the Processing described in clause 2.1.2 of this DPA (other than as described in clause 12.3.3 below) subject to the additional terms in Schedule 1; and
12.3.3 Article 49(1)(b) of the GDPR (the transfer is necessary for the performance of a contract), and the equivalent provisions in the Data Protection Laws and Regulations, applies to transfers of personal data made in connection with product fulfilment, in connection with surveys, newsletters and blogs, in connection with providing Customer support to prospective Customers, and in connection with recruiting for prospective new hires.