Data Processing Addendum
This Data Processing Addendum (“DPA”) supplements the Blueink Terms of Use (currently available at https://www.blueink.com/terms-of-use) updated from time to time between Customer (“you”, “your”) and Zava Global Partners LLC, dba Blueink (“Blueink”), or other written agreement between you and Blueink governing your use of the Blueink Services (the “Blueink Agreement”). This DPA applies to the extent you are using the Blueink Services in the context of your data processing activities that are subject to the EU General Data Protection Regulation (“GDPR”). Collectively, Customer and Blueink are referred to in this DPA as the “parties”.
1. General
This DPA sets out data protection, security and confidentiality requirements with regard to the Processing of Personal Data (as each of these phrases is defined below) that is collected, disclosed, stored, accessed or otherwise processed by Blueink for the purpose of providing the Blueink Services.
2. Definitions
When used in this DPA, these terms have the following meanings. Any capitalized terms not defined in this DPA have the meaning given in the Blueink Agreement.
“Applicable Law” means all applicable European Union (“EU”) or national laws and regulations relating to the privacy, confidentiality, security and protection of Personal Data, including, without limitation: the European Union Data Protection Directive 95/46/EC, as amended or replaced, from time to time, such as by the General Data Protection Regulation 2016/679 (“GDPR”), with effect from 25 May 2018, and EU Member State laws supplementing the GDPR; the EU Directive 2002/58/EC (“e-Privacy Directive”), as amended or replaced from time to time, and EU Member State laws implementing the e- Privacy Directive, including laws regulating the use of cookies and other tracking means as well as unsolicited e-mail communications; EU Member State laws regulating security breach notification and imposing data security requirements;
“Data Controller” means the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data;
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller;
“Data Subject” means an identified or identifiable natural person to which the Personal Data pertain;
“Instructions” means this DPA and any further written agreement or documentation by way of which the Data Controller or its affiliates instruct the Data Processor to perform specific Processing of Personal Data;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, that is collected, disclosed, stored, accessed or otherwise processed by Blueink for the purpose of providing the Blueink Services to you;
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, 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;
“Pseudonymization” means the Processing of Personal Data in such a manner that the Personal Data can no longer be attributed to a specific Data Subject without the use of additional information;
“Sensitive Data” means Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data, data concerning health, sex life or sexual orientation; and
“Sub-processor” means the entity engaged by the Data Processor or any further Sub-processor to Process Personal Data on behalf and under the authority of the Data Controller.
3. Processing of Personal Data
3.1 Blueink as a Data Processor or Sub-Processor:
The parties acknowledge and agree that to the extent Blueink operates and manages an electronic signature and document management service and in the course of providing its services , either (i) Blueink is acting as a Data Processor on Customer’s behalf and Customer acts as a Data Controller, or (ii) Blueink is acting as a Sub-Processor on Customer’s behalf and Customer acts as a Data Processor.
3.2 Your Processing of Personal Data:
You shall, in your use of the Blueink Services and provision of Instructions, Process Personal Data in accordance with the requirements of Applicable Law and provide Instructions to Blueink that are lawful. You shall ensure that Data Subjects are provided with appropriate information regarding the Processing of their Personal Data and, where required by Applicable Law, you shall obtain their consent to such Processing.
3.3 Blueink’s Processing of Personal Data:
To the extent that Blueink is acting as a Data Processor, Blueink will: (a) Process Personal Data in accordance with the Instructions of the Data Controller and this DPA; (b) ensure that any person authorized by Blueink to Process Personal Data is committed to respecting the confidentiality of the Personal Data; (c) provide reasonable assistance to the Data Controller, at the expense of the Data Controller, in ensuring compliance with the obligations of the Data Controller under Applicable Laws, taking into account the nature of the Processing and the information available to the Data Processor; (d) contribute to audits or inspections conducted by Blueink’s authorized auditors by making available to the Data Controller upon reasonable request the respective audit reports (no more frequently than once per year) provided that the Data Controller enters into a non-disclosure agreement with Blueink regarding such audit reports; and (e) provide reasonable assistance to the Data Controller, upon request, and, at the expense of the Data Controller, facilitate the Data Controller’s compliance with its obligations in respect of conducting data protection impact assessments and consulting with a supervisory authority, as required by Applicable Law.
3.4 Details of the Processing:
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 Exhibit A to this DPA.
4. Rights of Data Subjects
4.1 Data Subject Requests:
Blueink will, to the extent permitted by Applicable Law or other applicable legal or regulatory requirements, inform you of any formal requests from Data Subjects exercising their rights of access, correction or erasure of their Personal Data, their right to restrict or to object to the Processing as well as their right to data portability, and will not respond to such requests, unless instructed by you in writing to do so.
4.2 Assistance by Blueink:
Blueink shall, upon your request, provide reasonable efforts to assist you in responding to such Data Subject requests, and to the extent legally permitted, you shall be responsible for any costs arising from Blueink’s provision of such assistance.
5. Sub-Processors
5.1 Appointment of Sub-Processors:
You acknowledge and agree that: (a) Blueink affiliates may be retained as Sub-Processors; and (b) Blueink and Blueink affiliates may engage third-party Sub-Processors in connection with the provision of the Blueink Services. Blueink or a Blueink affiliate will enter into a written agreement with the Sub-Processor imposing on the Sub-Processor data protection obligations comparable to those imposed on Blueink under this DPA with respect to the protection of Personal Data. In case the Sub-Processor fails to fulfill its data protection obligations under such written agreement with Blueink, Blueink will remain liable to you for the performance of the Sub-Processor’s obligations under such agreement, except as otherwise set forth in the Blueink Agreement. By way of this DPA, the Data Controller provides general written authorization to Blueink as Data Processor to engage Sub-Processors as necessary to perform the Blueink Services.
5.2 List of Current Sub-Processors:
Blueink shall make available a list of Sub-Processors for the Blueink Services. Blueink will update the list to reflect any addition, replacement or other changes to Blueink’s Sub-Processors.
5.3. Objection Right for New Sub-Processors:
You may reasonably object to Blueink’s use of a new Sub-Processor on legitimate grounds, subject to the termination and liability clauses of the Blueink Agreement. The Data Controller acknowledges that these Sub-Processors are essential to providing the Blueink Services and that objecting to the use of a Sub-Processor may prevent Blueink from offering the Blueink Services to the Data Controller.
6. Security
6.1 Controls for the Protection of Personal Data
Each party shall implement and maintain appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Personal Data, including, where appropriate:
(a) Pseudonymization and encryption of Personal Data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services involved in the processing of Personal Data;
(c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
(d) a process for regular testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Personal Data.
6.2 Personal Data Incident Management and Notification:
Blueink will implement and maintain a data security incident management program, compliant with Applicable Law, that addresses management of data security incidents including a loss, theft, misuse, unauthorized access, disclosure, or acquisition, destruction or other compromise of Personal Data (“Incident”). Except to the extent necessary to comply with applicable legal, regulatory or law enforcement requirements, Blueink will inform you without unreasonable delay in accordance with Applicable Law after it becomes aware of any Incident that has occurred in its systems which affects Personal Data Blueink processes on your behalf.
7. Return and Deletion of Customer Data.
Blueink will delete or return all Personal Data to the Data Controller at the end of the provision of the Blueink Services, and delete existing copies, unless further storage of the Personal Data is required or authorized by Applicable Law or under the terms of the Blueink Agreement.
8. Data Transfers
8.1 Data Transfer Mechanism. The parties agree that Blueink may transfer Personal Data processed under this DPA outside the European Economic Area (“EEA”) as necessary to provide the Blueink Services. For transfers of EU Personal Data to Blueink for processing by Blueink in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, Blueink agrees it will use the form of the Standard Contractual Clauses set forth in Exhibit B to enable the lawful transfer of EU Personal Data. Blueink shall promptly notify Customer of any inability by Blueink to comply with the provisions of this Section.
9. Termination.
This DPA will have the same duration as and will be subject to the termination terms of the Blueink Agreement. The obligations of Blueink to implement appropriate security measures with respect to Personal Data will survive the termination of this DPA and will apply for so long as Blueink retains Personal Data. In the event of a conflict between this DPA and the Blueink Agreement, this DPA will apply to the extent of the inconsistency.
10. Limitation of Liability.
Each party’s (including their respective affiliates’) liability, in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Blueink Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Blueink Agreement and all DPAs together.
11. Governing Law.
This DPA and any dispute or claim arising out of or in connection with this DPA or its subject matter shall be governed by, and construed in accordance with, the laws of the country or territory stipulated for this purpose in the Agreement.
Exhibit A:
Details of the Processing of Personal Data
1. Subject Matter and Purpose:
The subject-matter and purpose of Processing of Personal Data by Blueink is the provision of the Blueink Services pursuant to the Blueink Agreement.
2. Categories of Data:
Personal data submitted to, stored on, or sent via the Blueink Service may include, without limitation, the following categories of data: IP addresses, browser agents, email addresses, usernames, full names, browser and operating system identifiers, and any other personal data that Customer chooses to send us during the course of our provision of the Blueink Service and technical support.
3. Duration of Processing:
For the duration of the term of the Blueink Agreement, plus the period from the expiration of the Blueink Agreement while Personal Data is retained.
4. Data Subjects:
Customer and Customer’s Authorized Users, employees, contractors or agents; Blueink Service users, including without limitation recipients of eSignature requests sent via the Blueink Service; and individuals referenced in files uploaded into the Blueink Service or in documents and/or forms filled-out in the Blueink Service.
5. Nature of the Processing:
Blueink will process Personal Data submitted to, stored on, or sent via the Blueink Service for the purpose of providing the Blueink Service and related technical support in accordance with this DPA.
Exhibit B
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 Customer (the ‘data exporter’) And Zava Global Partners 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.
Clause 1
Definitions 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 sub-processor’ means any processor engaged by the data importer or by any other sub- processor of the data importer who agrees to receive from the data importer or from any other sub-processor 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 organizational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2
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.
Clause 3
Third-party beneficiary clause
1. 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.
2. 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.
3. The data subject can enforce against the sub-processor 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 sub- processor shall be limited to its own processing operations under the Clauses.
4. 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.
Clause 4
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 organizational 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, unauthorized 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 sub-processor 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 sub-processing 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 sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor 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).
Clause 5
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 organizational security measures specified in Appendix 2 before processing the personal data transferred;
d. that it will promptly notify the data exporter about:
• 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;
• any accidental or unauthorized access; and
• any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 sub-processing, 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 sub-processing, it has previously informed the data exporter and obtained its prior written consent;
i. that the processing services by the sub-processor will be carried out in accordance with Clause 11;
j. to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6
Liability
1. 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 sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. 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 sub-processor 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 sub-processor of its obligations in order to avoid its own liabilities.
3. 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 sub-processor 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 sub- processor agrees that the data subject may issue a claim against the data sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
1. 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.
2. 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.
Clause 8
Cooperation with supervisory authorities
1. 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.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, 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.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9
Governing law The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
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.
Clause 11
Sub-processing
1. 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 sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor 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 sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor 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 sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing 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.
4. The data exporter shall keep a list of sub-processing 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.
Clause 12
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor 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 sub-processor 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 This Appendix forms part of the Clauses and must be completed and signed by the parties The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
Data exporter
The data exporter is the entity identified as “Customer” in the DPA.
Data importer
Zava Global Partners LLC
Data subjects
Data subjects are defined in Exhibit A of the DPA.
Categories of data
Data subjects are defined in Exhibit A of the DPA.
Processing operations
Processing operations are defined in Exhibit A of the DPA.
Appendix 2
to the Standard Contractual Clauses This Appendix forms part of the Clauses and must be completed and signed by the parties. Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached): 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, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.