Data Processing Agreement
In order that you as a service user and data controller (referred to as “Controller” or “you” or “Client”) may use or continue to use Sidemail.io platform (the “Services”), you have agreed that these data processing terms (“Terms”) shall apply (notwithstanding any other terms and conditions applicable to the delivery of the Services to the contrary) in order to address the compliance obligations imposed upon Sidemail.io (“Sidemail”) and its Clients pursuant to applicable Data Protection Law and in particular, Regulation (EU) 2016/679 (GDPR) and the Czech Act No. 110/2019 Coll. on Personal Data Processing (CAPDP).
These Terms shall constitute a separate agreement, or they may be incorporated by reference in the relevant Services agreement, as the case may be.
In this Agreement, capitalized words shall have the meaning as set out below or, as the case may be, elsewhere in this Agreement:
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party from time to time during the Term.
- “Data Protection Law” means the data privacy laws applicable to the processing in connection with the Services, including, where applicable, the GDPR or the CAPDP or similar law, or the applicable data privacy laws of any other relevant jurisdiction.
- “Client” means any client of Sidemail.
- “Contractual Clauses” means the standard contractual clauses of the European Commission for the transfer of personal data across borders, as amended or replaced from time to time, or any equivalent set of contractual clauses approved for use under Data Protection Law; and
- “Business Personal Data” means the personal data processed by Processor in connection with the Services on behalf of Client during the Term and may include Financial Data, Personal Data, and Special Categories Data as specifically required and transferred by the Client. The processing may include activities auxiliary to Sidemail services, such as administrative and other services. This will include names and other information about data subjects included in Client materials.
- The words “data subject”, “personal data”, “processing” and variations, “controller” and “processor” shall have the meaning attributed to them in Data Protection Law.
- Sidemail is designated by its Clients, Client Affiliates and Business Affiliates (collectively “Instructing Parties”) to provide and manage various services, including the Services on their behalf. Accordingly, Business Personal Data may contain personal data in relation to which Client and its Instructing Parties are controllers. Sidemail confirms that it is authorized to communicate to Client any instructions or other requirements on behalf of Client in respect of processing of Business Personal Data connection with the Services.
- Processor is appointed by Client to process Business Personal Data on behalf of Client and/or the Instructing Parties, as the case may be, as is necessary to provide the Services or as otherwise agreed by the parties in writing.
The Terms shall commence on the Effective Date and shall continue in full force and effect until such time as all Services have ceased and all Business Personal Data in the Processor’s possession or within its reasonable control has been returned or destroyed (the “Term”).
Data protection compliance
In relation to its processing of Business Personal Data, save as otherwise required by law, Sidemail agrees to:
- process Business Personal Data only as required in connection with the Services and in accordance with Client and its Instructing Parties documented lawful instructions from time to time;
- inform Client and its Instructing Parties if, in Sidemail`s opinion, an instruction infringes Data Protection Law;
- ensure that all personnel authorised by Sidemail to process Business Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- implement appropriate technical and organizational measures to appropriately safeguard Business Personal Data having regard to the nature of the personal data which is to be protected and the risk of harm which might result from any Security Breach (as defined below), at a minimum the measures set out in the Schedule;
- promptly inform Client and its Instructing Parties of any data subject requests under Data Protection Law or regulatory or law enforcement requests relating to Business Personal Data. Sidemail shall not acknowledge or otherwise respond to the subject access request except with Client and its Instructing Parties prior written approval, which shall not be unreasonably withheld;
- provide such assistance as Client and its Instructing Parties may reasonably require in order to ensure Sidemail’s compliance with Data Protection Law in relation to data security, data breach notifications, data protection impact assessments and prior consultations with a competent authority;
- at Client and its Instructing Parties choice, without delay delete or return all Business Personal Data to Client and its Instructing Parties, and delete existing copies of all Business Personal Data in the Processor’s possession or within its reasonable control (including those held by a Sub processor); and
- make available to Client and its Instructing Parties information reasonably necessary to demonstrate Sidemail compliance with these Terms and allow for, and contribute to, audits and inspections carried out by Client and its Instructing Parties.
- “Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Business Personal Data transmitted, stored or otherwise processed.
- Processor will notify Client without undue delay if Processor aware of any Security Breach.
- Processor will investigate the Security Breach and take reasonable action to identify, prevent and mitigate the effects of the Security Breach. Processor will take such further action as Client may reasonably request in order to comply with Data Protection Law.
- Processor may not release or publish any filing, communication, notice, press release, or report concerning any Security Breach (“Notices“) without Client`s prior written approval; such approval shall not be unreasonably withheld.
International Data Transfers
“Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Sidemail will notify Client without undue delay if Sidemail becomes aware of any Security Breach within 24 hours of discovering such Breach and provide Client with:
- a detailed description of the Security Incident;
- the type of data that was the subject of the Security Incident;
- the identity of each affected person, and
- the steps Sidemail takes in order to mitigate and remediate such Security Incident, in each case as soon as such information can be collected or otherwise becomes available.
Sidemail shall use its best efforts to immediately mitigate and remedy any Security Incident and prevent any further Security Incident(s) at its sole expense.
Sidemail agrees that Client shall have the sole right to determine (i) whether notice of the Security Incident is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies or others as required by law or regulation, or otherwise in Client’s discretion, (ii) the contents of such notice, and (iii) whether any type of remediation may be offered to affected persons, as well as the nature and extent of any such remediation.
In the event of a Security Incident involving Personal Data in Sidemail’s possession or otherwise caused by or related to Sidemail’s acts or omissions, and without limiting Client’s other rights and remedies, Sidemail will pay all costs and expenses of (i) any disclosures and notification required by applicable law or as otherwise determined as appropriate in Client’s reasonable discretion, (ii) monitoring and reporting on the impacted individuals’ or entities’ credit records if determined in Client’s reasonable discretion as reasonable to protect such individuals, and (iii) all other costs incurred by Client in responding to, remediating and mitigating damages caused by such Security Incident.
Sidemail will investigate the Security Breach and take reasonable action to identify, prevent and mitigate the effects of the Security Breach. Sidemail will take such further action as Client may reasonably request in order to comply with Data Protection Law.
Sidemail may not release or publish any filing, communication, notice, press release, or report concerning any Security Breach (“Notices“) without Client`s prior written approval; such approval shall not be unreasonably withheld.
Notwithstanding any provisions of the relevant Services agreement to the contrary, Processor shall and hereby agrees to indemnify Client and Instructing Parties and their officers, employees, agents and subcontractors (each an “Indemnified Party”) from and against any claims, losses, demands, actions, liabilities, fines, penalties, reasonable expenses, damages and settlement amounts (including reasonable legal fees and costs) incurred by any Indemnified Party as a result of any gross negligence or wilful breach by Processor of these Terms.
- Clause and other headings in these Terms are for convenience only and shall not affect the meaning or interpretation of these Terms.
- To the extent of any conflict, these Terms shall prevail over any Services agreement or other agreement.
- Nothing in these Terms will exclude or limit the liability of either party which cannot be limited or excluded by applicable law. Subject to the foregoing sentence, (i) these Terms, including any appendices, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties relating to its subject matter; and (ii) in relation to the subject matter of these Terms neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, whether made negligently or innocently, except those expressly set out in these Terms.
- Client shall agree any amendment to these Terms that may be required from time to time for us and Instructing Parties to comply with any amended Data Protection Laws.
- All notices of termination or breach must be in English, in writing and addressed to the other party’s primary contact person or legal department. Notice will be treated as given on receipt, as verified by a valid receipt or electronic log. Postal notices will be deemed received 48 hours from the date of posting by recorded delivery or registered post.
- The provisions of these Terms are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of these Terms shall remain in full force and effect.
- These Terms are governed by the law of Ireland and the parties submit to the exclusive jurisdiction of the courts of Dublin in relation to any dispute (contractual or non-contractual) concerning these Terms save that either party may apply to any court for an injunction or other relief to protect its property or confidential information.
Sidemail represents, warrants, and undertakes that it has established and for so long as Sidemail Processes Personal Data it will at all times enforce, an ongoing program of Security Policies, Security Procedures, and Security Technical Controls, which reasonably ensures delivery of Security Best Practices
Cross border data transfer mechanisms
- In the event the Services are covered by more than one Transfer Mechanism, the transfer of personal data will be subject to a single Transfer Mechanism in accordance with the following order of precedence:
- Sidemail’s binding corporate rules as set forth in this Schedule
- the applicable Standard Contractual Clauses as set forth in this Schedule
- other applicable data Transfer Mechanisms permitted under Applicable Data Protection Law.
Binding corporate rules
- The parties agree that Sidemail will process personal data within the Sidemail Services in accordance with the data protection policies that are approved by European data protection authorities after significant consultation with those authorities and enable multinational businesses, such as Sidemail, to make intra-organizational transfers of personal data across borders in compliance with EU data protection law.
- The parties further agree that, with respect to the Sidemail Services, the Binding Corporate Rules will be the lawful Transfer Mechanism of Client Account Data, Client Content, and Client Usage Data from the EEA, Switzerland, or the United Kingdom to Sidemail.
STANDARD CONTRACTUAL CLAUSES
The parties agree that the 2021 Standard contractual clauses for international transfers as publish and available at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc/standard-contractual-clauses-international-transfers_en will apply to personal data that is transferred via the Services from the European Economic Area or Switzerland, either directly or via onward transfer, to any country or recipient outside the European Economic Area or Switzerland that is:
not recognized by the European Commission (or, in the case of transfers from Switzerland, the competent authority for Switzerland) as providing an adequate level of protection for personal data and
not covered by the above Binding Corporate Rules. For data transfers from the European Economic Area that are subject to the 2021 Standard Contractual Clauses, the 2021 Standard Contractual Clauses will be deemed entered into (and incorporated into this Addendum by this reference) and completed as follows:
- Module One (Controller to Controller) of the 2021 Standard Contractual Clauses will apply where Sidemail is processing Client Account Data and
- Client is a controller of Client Usage Data and Sidemail is processing Client Usage Data.
- Module Two (Controller to Processor) of the 2021 Standard Contractual Clauses will apply where Client is a controller of Client Content and Sidemail is processing Client Content.
- Module Three (Processor to Processor) of the 2021 Standard Contractual Clauses will apply where Client is a processor of Client Content and Sidemail is processing Client Content.
- Module Four (Processor to Controller) of the 2021 Standard Contractual Clauses will apply where Client is a processor of Client Usage Data and Sidemail processes Client Usage Data.
For each Module, where applicable:
- Data Exporter: Client.
- Contact details: The email address(es) designated by Client in Client’s account via its notification preferences.
- Data Exporter Role: The Data Exporter’s role is set forth in this Agreement.
- Signature and Date: By entering into the Agreement, Data Exporter is deemed to have signed these Standard Contractual Clauses incorporated herein, as of the Effective Date of the Agreement.
- Data Importer: Sidemail.
- Contact details: Sidemail Support Team - support@Sidemail.com
- Data Importer Role: The Data Importer’s role is set forth in this Agreement.
- Signature and Date: By entering into the Agreement, Data Importer is deemed to have signed these Standard Contractual Clauses, incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
The categories of data subjects are described in this Agreement
The Sensitive Data transferred is described in this Agreement.
The frequency of the transfer is a continuous basis for the duration of the Agreement.
The nature of the processing is described in this Agreement.
The purpose of the processing is described in this Agreement.
The period for which the personal data will be retained is this Agreement.
The Supervisory Authority shall be the Office for Personal Data Protection in the Czech Republic.
For transfers to sub-processors, the subject matter, nature, and duration of the processing is set forth below.
The Schedule Security Measures of this Agreement serves as Annex of the Standard Contractual Clauses.