Data Processing Agreement
Last modified: 2/10/2006
This Data Processing Agreement (“Agreement“) forms
part of the Contract for Services under Massed Compute Inc.’s Terms and
Conditions (the “Principal Agreement“) between Massed
Compute Inc., 101 Convention Center Dr., Suite 900, Las Vegas, NV 89109,
United States; (referred to as the “Processor“) and the
Company using Massed Compute Inc.’s services (referred to as the
“Company”).”
This Agreement governs the specific requirements of Data Protection
Laws to the extent that Company’s use of Massed Compute Inc. Services
implies the processing of Personal Data subject to Data Protection
Laws.
This Agreement is complementary to our Privacy Policy, which serves
as the primary reference for our data protection practices and
measures.
The term of this Agreement shall follow the term of the Principal
Agreement. Terms not defined herein shall have the meaning as set forth
in the Principal Agreement.
WHEREAS
A) The Company act as a Data Controller (the
“Controller”).
B) The Company wishes to subcontract certain Services (as defined
below), which imply the processing of Personal Data, to Massed Compute
Inc.’s, acting as a Data Processor (the
“Processor”).
C) The Parties seek to implement a data processing agreement that
complies with the requirements of the current legal framework in
relation to data processing and with 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) and other applicable data
protection laws.
D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS
FOLLOWS:
1. Definitions and
Interpretation
Unless otherwise defined herein, capitalized terms and expressions
used in this DPA shall have the following meaning:
1.1) “Agreement” means this Data Processing
Agreement and all Schedules;
1.2) “Company Personal Data” means any Personal Data
related to the Company or Company’s customers or employees Processed in
connection with the Principal Agreement;
1.3) “Contracted Processor” means a
Subprocessor;
1.4) “Data Protection Laws” means EU Data Protection
Laws and, to the extent applicable, the data protection or privacy laws
of any other country;
1.5) “EEA” means the European Economic Area;
1.6) “EU Data Protection Laws” means EU Directive
95/46/EC, as transposed into domestic legislation of each Member State
and as amended, replaced or superseded from time to time, including by
the GDPR and laws implementing or supplementing the GDPR;
1.7) “GDPR” means EU General Data Protection
Regulation 2016/679;
1.8) “Data Transfer” means:
1.8.1) a transfer of Company Personal Data from Controller to the
Processor or a Contracted Processor; or1.8.2) an onward transfer of Company Personal Data from the Processor
to a Subprocessor, or between two establishments of a Subprocessor;
1.9) “Services” means online services provided by
the Processor.
1.10) “Subprocessor” means any person appointed by
or on behalf of Processor to process Personal Data on behalf of
Controller in connection with the Agreement.
The terms, “Commission”, “Controller”, “Data Subject”,
“Member State”, “Personal Data”, “Personal Data Breach”,
“Processing” and “Supervisory Authority” shall
have the same meaning as in the GDPR or other applicable Data Protection
Law, and their cognate terms shall be construed accordingly.
2. Processing of Company
Personal Data
Processor shall:
2.1) comply with all applicable Data Protection Laws in the
Processing of Company Personal Data;
2.2) and not process Company Personal Data other than on Controller’s
documented instructions in section 2.
Controller
instructs Processor to process Company Personal Data to:
2.3) provide the Services and related technical support;
2.4) fulfil legal obligations or resolve disputes;
2.5) exercise any internal task aimed to optimise the security,
privacy, confidentiality and functionalities of the Services;
2.6) exercise internal reporting, financial reporting and other
similar internal tasks.
3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of
any employee, agent or contractor of any Contracted Processor who may
have access to Company Personal Data, ensuring in each case that access
is strictly limited to those individuals who need to know / access the
relevant Company Personal Data, as strictly necessary for the purposes
of the Principal Agreement, and/or to comply with Data Protection Laws
and other relevant legislation in the context of that individual’s
duties to the Contracted Processor, ensuring that all such individuals
are subject to confidentiality undertakings or professional or statutory
obligations of confidentiality.
4. Security
In accordance with Article 32 (1) of the GDPR, the Processor shall
implement appropriate technical and organizational measures to ensure a
level of security appropriate to the risk, taking into account the state
of the art, the costs of implementation, and the nature, scope, context,
and purposes of processing. These measures shall be designed to protect
the rights and freedoms of natural persons, considering the risks of
varying likelihood and severity, including the risk of a Personal Data
Breach.
The Processor shall also assess the risks associated with processing
activities and apply measures that are consistent with the requirements
set forth in Article 32 (1) GDPR, ensuring the security of Company
Personal Data at all times.
5. Subprocessing
Company may engage third parties to process Personal Data on behalf
of Customer (“Sub‑processors”). Company maintains a current list of its
Sub‑processors at [INSERT URL] (the “Sub‑processor List”) and may
provide a subscription mechanism (such as an RSS feed or email
notifications) for changes to the Sub‑processor List. Company may also
disclose and transfer Personal Data to other companies within its
corporate group where necessary for the provision of the Services.
Customer grants Company a general authorization to use the
Sub‑processors included on the Sub‑processor List, as updated from time
to time. Company will provide advance notice of any intended addition or
replacement of a Sub‑processor by updating the Sub‑processor List and,
where available, issuing a corresponding notice through the applicable
subscription mechanism.
Customer may raise reasonable, documented objections to a new or
replacement Sub‑processor on data protection grounds within a reasonable
period after receiving such notice. If the parties do not reach a
mutually acceptable solution within a reasonable time, Customer may
exercise its rights to suspend or terminate the affected portion of the
Services that cannot be provided without the use of the objected‑to
Sub‑processor.
Company will ensure that each Sub‑processor is bound by a written
agreement that imposes data protection obligations no less protective
than those set out in this Agreement, to the extent relevant to the
services provided by that Sub‑processor.
6. Data Subject Rights
Taking into account the nature of the processing, Processor shall
reasonably assist Company for the fulfilment of Company’s obligations to
respond to requests to exercise Data Subject rights under the Data
Protection Laws.
Processor shall:
6.1) promptly notify Company if it receives a request from a Data
Subject under any Data Protection Law in respect of Company Personal
Data; and
6.2) ensure that it does not respond to that request except on the
documented instructions of Controller or as required by Applicable Laws
to which the 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.
7. Personal Data Breach
The Processor shall manage any Personal Data Breach in compliance
with applicable Data Protection Laws and its internal Personal Data
Breach procedures. In the event of a Personal Data Breach affecting
company Personal Data, the Processor shall notify the Company without
delay, providing sufficient information to enable the Company to fulfill
its obligations under Data Protection Laws, including informing Data
Subjects as necessary. In such cases, Processor shall provide Company
with sufficient information to allow Company to meet any obligations to
report or inform Data Subjects of the Personal Data Breach under the
Data Protection Laws.
Processor shall co-operate with Company and take reasonable
commercial steps as are directed by Company to assist in the
investigation, mitigation and remediation of each such Personal Data
Breach.
Each party shall bear the costs of the investigation, remediation,
mitigation, and other related costs to the extent a Data Breach is
caused by such party.
Each party shall bear the costs of any fines, penalties, damages, or
other related amounts imposed by an authorized regulatory body,
governmental agency, or court of competent jurisdiction to the extent
arising from such party’s breach of its obligations under this
Agreement.
8.
Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to Company with any
data protection impact assessments, and prior consultations with
Supervising Authorities or other competent data privacy authorities,
which Controller reasonably considers to be required by article 35 or 36
of the GDPR or equivalent provisions of any other Data Protection Law,
in each case solely in relation to Processing of Company Personal Data
by, and taking into account the nature of the Processing and information
available to, the Contracted Processors.
9. Deletion or
return of Company Personal Data
In case of cessation of any Service involving the Processing of
Company Personal Data, the Processor shall delete all Company Personal
Data to the extent permitted by applicable laws and in accordance with
Processor’s Data Management policy. Should the Company require a copy of
their data, they must request it before the deletion of their account;
requests made after the account has been deleted can no longer be
considered.
10. Audit rights
Subject to this section 10, Processor shall make available to Company
on request all information necessary to demonstrate compliance with this
Agreement, and shall allow for and contribute to audits, including
inspections, by Company or an auditor mandated by Company in relation to
the Processing of the Company Personal Data by the Contracted
Processors. ISO 27001 certification (or other sufficient
certification) will be sufficient to satisfy audit rights unless one of
the below criteria are met:
-
You have reason to believe that there has been a breach of
the obligations -
A security or privacy breach has affected your data that is
being processed -
In the event that they no longer hold an ISO27001
certification (or one that is similar), you are able to conduct an
annual audit without any condition.
Company shall give Processor at least sixty (60) days prior
written notice of its intention to audit Processor pursuant to this
Agreement. Audit shall be conducted during Processor’s business hours,
shall not disrupt Processor’s operations and shall ensure the protection
of the Company’s, Processor’s and other Data Subjects’ Personal Data.
Processor and Company shall mutually agree in advance on the date,
scope, duration and security and confidentiality controls applicable to
the audit. Company acknowledges that the signing of a non-disclosure
agreement may be required by the Controller prior to the conduction of
the audit.
Information and audit rights of Company only arise under section 10
to the extent that the Agreement does not otherwise give them
information and audit rights meeting the relevant requirements of Data
Protection Law.
11. Data Transfer
The
parties agree that Processor may transfer Personal Data processed under
this DPA outside the EEA, the UK, or Switzerland as necessary to provide
the Services. Company acknowledges that Processor’s primary processing
operations take place in the United States, and that the transfer of
Company’s Personal Data to the United States is necessary for the
provision of the Services to Company. If Processor transfers Personal
Data protected under this DPA to a jurisdiction for which the European
Commission has not issued an adequacy decision, Processor will ensure
that appropriate safeguards have been implemented for the transfer of
Personal Data in accordance with Data Protection Laws.
To the extent possible, the Processor shall only transfer or
authorize the transfer of Data to countries within Switzerland, the EU
and/or countries subject to an adequacy decision, as provided for in
art. 45 GDPR and art. 16 Swiss FADP. If Personal Data processed under
this Agreement is transferred from Switzerland or any country within the
EU or any country subject to an adequacy decision to a country outside
of this scope, the Parties shall ensure that the Personal Data are
adequately protected. To achieve this, the Parties shall, unless agreed
otherwise, rely on Switzerland- and/or EU- and/or UK- approved and
then-current standard contractual clauses for the transfer of Personal
Data or other transfer mechanisms as provided for by Data Protection
Laws. Processor shall be authorized to perform such transfers to
Subprocessors provided that adequate safeguards are implemented with
regards to the nature of the transfer.
12. General Terms
Compliance with Applicable Laws. Processor will
process Company Personal Data in accordance with this Agreement and Data
Protection Laws applicable to its role under this Agreement. Processor
is not responsible nor liable for complying with Data Protection Laws
solely applicable to Company by virtue of its business or industry.
Confidentiality. Each party must keep any
information it receives about the other party and its business in
connection with this Agreement (“Confidential Information”) confidential
and must not use or disclose that Confidential Information without the
prior written consent of the other party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain through
no fault of the Parties.
Notices. All notices and communications given under
this Agreement must be in writing and will be sent by email. Controller
shall be notified by email sent to the address related to its use of the
Services under the Principal Agreement. Processor shall be notified by
email sent to the address: [email protected]
In case of discrepancy between the English version of these Terms and
any translated version, the English version shall prevail.