DATA PROTECTION AGREEMENT
This agreement (the “Agreement“), together with any additional terms and conditions entered in the Order Form, constitutes a legal agreement between DevSkiller S.A., a company registered under Polish law under number 0000927603, registered address: Lindleya 16, 02-013 Warsaw, Poland (hereinafter referred to as (“Processor“), and you or the entity you represent (which means, as applicable, an individual – non-consumer, a legal entity and/or an organizational unit without legal personality that uses the Service in any way in the course of its business) (“Company” or “Controller”), which governs your entrustment of personal data.
Processor and Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
Please read this document carefully before using the Service provided under the Basic Agreement and ensure that you understand and agree with its wording.
Your use of the Service is expressly conditioned upon your agreement to and compliance with all provisions of the Agreement. By using the Service in any manner, Processor acknowledges that it has read and agrees to be bound by and a party to this Agreement, together with any additional provisions of the Basic Agreement, and represents and warrants that it has the authority to bind you to the Agreement. If Processor does not agree with any part of the Agreement, then Processor may not access the Service provided under the Basic Agreement.
If you have any questions about this Agreement, please contact us at: firstname.lastname@example.org.
The Controller and Processor are further collectively referred to as “Parties”, and each individually as the “Party”.
- By accepting the Order Form, the Controller enters into an agreement for the provision of Services (hereinafter: “Basic Agreement“) and in connection with its performance, the Company entrusts the Processor with the processing of Personal Data to the extent specified in this Data Protection Agreement (hereinafter: “Agreement“),
- The purpose of the Agreement is to determine terms and conditions on which the Processor perform personal data processing operations on behalf of the Controller,
- The Parties, when concluding the Agreement, strive to regulate the processing of personal data so that they fully comply with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27.04.2016 on the protection of personal data and on the free movement of such data and repealing the Directive 95/46 / EC (General Data Protection Regulation) OJ UE L 119, s.1) – further: “GDPR”,
- The Controller declares that it is entitled to process personal data in the scope within which it entrusts it for processing to the Processor.
- The Processor declares that as a part of its business operations it ensures that personal data processing is compliant with the provisions of GDPR, in particular it has the appropriate technical and organizational measures to ensure the security of personal data.
The Parties resolved to conclude the following Agreement:
- ENTRUSTMENT OF PERSONAL DATA PROCESSING
- The Controller entrusts to the Processor, pursuant to art. 28 GDPR personal data for processing, in the scope, on principles and for the purpose set out in this Agreement.
- The Processor undertakes to process the personal data entrusted to them in accordance with this Agreement, the GDPR and other provisions of generally applicable law that protect the rights of data subjects.
- The Processor declares that it applies security measures that meet the requirements of the GDPR.
- SCOPE AND PURPOSE OF DATA PROCESSING
- The Processor shall process the following personal data entrusted, pursuant to the Agreement:
- forename and surname,
- tax identification number (NIP),
- e-mail address,
- telephone numbers,
- Company name, position held in the company,
- IP number,
- Data processing may concern the following categories of persons:
- persons authorized to represent the Controller,
- test takers,
- Personal data entrusted by the Controller will be processed by the Processor in the nature and purpose following from the Basic Agreement, in particular the nature of processing determined by the role of the Processor under the concluded Basic Agreement.
- OBLIGATIONS OF THE PROCESSOR
- The Processor processes personal data only in accordance with documented orders or instructions of the Controller.
- The Processor allows the data to be processed only by persons who have a personal authorization to process data. The Processor is required to obtain – from persons who have been authorized by them to process data in performance of the Agreement – a documented commitment to secrecy or confirmation that these persons are subject to the statutory obligation of confidentiality.
- The Processor is obliged to:
- secure personal data by using appropriate technical and organizational measures which ensure an adequate level of security corresponding to the risk connected with the processing of personal data, in accordance with art. 32 GDPR.
- cooperate with the Controller in the performance of the Company’s duties in the area of personal data protection referred to in art. 32-36 GDPR, including in particular obligations in the field of data protection, reporting violations to the supervisory authority, notification of persons affected by a breach of data protection, assessment of the effects for data protection and prior consultations with the supervisory authority,
- inform the Controller about any doubts as to the legality of the orders or instructions given by the Company, in a documented and substantiated manner immediately after such doubts are raised under pain of losing the possibility to pursue claims against the Company in this respect,
- restrict access to data only to persons for whom access to data is necessary to perform the Basic Agreement and who hold appropriate authorization or authorized under the Agreement,
- keep documentation describing how data is processed,
- provide, at each request of the Controller, a register of data processing activities and register of personal data processing categories, with the exception of information constituting a trade secret of other customers of the Processor,
- after the end of the provision of services relating to the processing, depending on arrangements made with the Controller – to delete or return to the Controller all personal data and delete any existing copies thereof, unless the law requires storage of personal data.
- OBLIGATIONS OF THE CONTROLLER
- The Controller is obliged to cooperate with the Processor in the performance of the Agreement, provide the Processor with explanations in case of doubts as to the legality of the Controller’s instructions and fulfill its obligations under this Agreement, the Basic Agreement or the Parties’ arrangements in a timely manner.
- The Controller is obliged, in the way that allows verification, inform the persons whose personal data is processes about entrusting their data for processing to the Processor. At each request of the Processor, the Controller is required to submit evidence of compliance with the information obligation referred to in the preceding sentence, but no later than 3 business days from the date of the request.
- The Customer is required to provide DevSkiller with all information necessary to demonstrate the compliance of the Company’s activities with provisions of the GDPR.
- The Customer is solely responsible for the entrusting of the data to the DevSkiller without legal basis. If as a result of processing the data entrusted by the Customer without a legal basis Devskiler suffers a loss, the Customer is obliged to repair it in full.
- SECURITY MEASURES
- The Processor is obliged to provide technical and organizational measures which ensure security of personal data, in particular:
- have the ability to ensure the ongoing confidentiality, integrity, availability and resilience of their processing systems and services,
- have the ability to quickly restore the availability of personal data and access to them in the event of a physical or technical incident,
- regularly test, measure and assess the effectiveness of applied technical and organizational measures for ensuring security of the processing.
- NOTIFICATIONS OF PERSONAL DATA PROTECTION BREACH
- The Processor is obliged to notify the Controller of any suspected breach of data protection, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons, no later than 24 hours after having become aware of it, allow the Company to participate in explanatory activities and notify the Controller of the findings immediately after making them, in particular of the breach or lack thereof.
- RIGHT OF CONTROL
- The Controller has the right to check whether the means applied by the Processor when processing and securing the entrusted personal data meet the provisions of the Agreement.
- As part of the control, the Controller is entitled to request that the Processor provides information regarding the course of data processing and that it provides processing registers, with the reservation of the trade secret of the Processor and clients of Processor.
- The Processor is required to provide the Controller with all information necessary to demonstrate compliance with obligations set out in art. 28 of the GDPR, including all information necessary to demonstrate the compliance of the Company’s activities with provisions of the GDPR.
- SUB-ENTRUSTMENT OF PERSONAL DATA PROCESSING
- The Processor is entitled to entrust specific operations of personal data processing by means of a written agreement for sub-entrustment of personal data processing – to other entities (“Sub-processors”) only for the purpose of performing the Agreement and Basic Agreement.
- The Controller consents to further entrusting the processing of personal data by the Processor to Sub-processors supporting Processor in its operations, including a sub-processors based outside the European Economic Area – EEA in the implementation of the Basic Agreement, in particular: entities providing accounting, marketing and training services, IT service providers and hosting tools, software suppliers, banks, entities providing legal services, payment services, associates of the Administrator. The list of accepted sub-processors to be entrusted by the Processor with the processing of personal data constitutes Appendix No. 1 to the Agreement.
- Entrusting data processing to Sub-processors outside the List of accepted sub-processors categories indicated in point 2 above requires prior notification to the Controller in order to allow objection within a period of not longer than 3 days. The Controller may, for justified reasons, raise documented objections to entrusting data to a specific Sub-Processor. The Processor shall report the doubts as to the legitimacy of the objection and possible negative consequences in a time allowing for ensuring the continuity of processing. Failure to express an objection within the time limit indicated above is tantamount to consent to the sub-entrustment.
- Where personal data is processed by Sub-processor, even in part, in countries outside the European Union or the European Economic Area, other than those subject to adequacy decisions taken by the European Commission, the transfer shall be governed by the Standard Contractual Clauses referred to in Appendix No. 2 “Standard contractual clauses for the transfer of personal data to Data Processors located in non-EU countries (Commission Decision 2010/87/EC)”.
- When making a sub-entrustment, the Processor is obliged to commit the Sub-processor to perform all obligations of the Processor under this Agreement, except for those that do not apply due to the nature of the specific sub-entrustment.
- RESPONSIBILITY OF THE PROCESSOR
- The Processor is responsible for providing or using personal data contrary to the content of this Agreement, and in particular for providing access to personal data entrusted for processing to unauthorized persons.
- The Processor is obliged to immediately inform the Controller of any proceedings, in particular administrative or court, regarding the processing – by the Processor – of personal data specified in the Agreement, of any administrative decision or decision regarding the processing of such data, addressed to the Processor, as well as about any planned, if they are known, or carried out controls and inspections regarding the processing of these personal data in the Processor. This paragraph applies only to personal data entrusted by the data Controller.
- DURATION OF THE AGREEMENT
- This Agreement has been concluded for the duration of the Basic Agreement.
- In the event of termination of the Agreement, the Processor shall immediately, but not later than 30 days, delete the data, unless otherwise requested by the Controller.
- In the event that, as a result of the objection to entrust data to the Sub-processor referred to Article VIII point 3, it will not be possible to perform Basic Agreement, Processor is entitled to terminate Basic Agreement and Agreement. Termination of Basic Agreement and Agreement in the manner referred to in the preceding sentence does not constitute improper performance of the Basic Agreement. In the event of termination of Agreement and Basic Agreement by the Processor, the Processor retains the right to renumeration paid so far by the Controller and the Controller is not entitled to any claims against the Processor.
- CONFIDENTIALITY RULES
- The Processor is obliged to keep secret all information, data, materials, documents and personal data received from the Controller and from persons cooperating with it, as well as data obtained in any other way, intended or accidental, in an oral, written or electronic form (‘Confidential Data’).
- The Processor declares that with regard to the obligation to keep the Confidential Data secret, the data will not be used, disclosed or made available – without a written consent of the Company – for purposes other than the performance of the Agreement, unless the need to disclose information follows from the applicable law, the Agreement, Basic Agreement or Controller’s consent.
- The Parties undertake to make every effort to ensure that means of communication used to receive, transfer and store confidential data guarantee the protection of confidential data, in particular personal data entrusted for processing, against access of unauthorized third parties to read their content.
- FINAL PROVISIONS
- This Agreement is subject to the Polish law.
- In matters not regulated by the Agreement, the relevant provisions of law, in particular applicable privacy laws, including GDPR shall apply.
- The court having jurisdiction for the resolution of disputes arising from this Agreement will be the court having jurisdiction over the Processor’s registered office.
Appendix No. 2 – Standard contractual clauses
STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA TO DATA PROCESSORS LOCATED IN NON-EU COUNTRIES (COMMISSION DECISION 2010/87/EC)
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.
Controller (the “data exporter”)
DevSkiller spółka z ograniczoną odpowiedzialnością, incorporated under the laws of the Republic of Poland, with its registered office in Warsaw, address: ul. Lindleya 16, 02-013 Warsaw, KRS: 0000472423, NIP 7010391187 and REGON 146801563,
(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 Section 1.
Purpose and scope
- The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation) for the transfer of personal data to a third country.
- The Parties:
- the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
- the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
- These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
- The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
- These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
- These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
- Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
- Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
- Clause 8 – Module One: Clause 8.5 and Clause 8.9(b); Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); Module Four: Clause 8.1 (b) and Clause 8.3(b);
- Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);
- Clause 12 – Module One: Clause 12(a) and (d); Modules Two and Three: Clause 12(a), (d) and (f);
- Clause 13;
- Clause 15.1(c), (d) and (e);
- Clause 16(e);
- Clause 18 – Modules One, Two and Three: Clause 18(a) and (b); Module Four: Clause 18.
- Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
- Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
- These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
- These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
- An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
- Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
- The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
- The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
- The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
- The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
- The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
- The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
- the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
- the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
- the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
- the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
- The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
- The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
- The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
- The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
- The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
- The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least [Specify time period] in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
- Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
- The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
- The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
- The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
- The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
- The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
- In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
|The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject. The data importer agrees that data subjects may also lodge a complaint with an independent dispute resolution body at no cost to the data subject. It shall inform the data subjects, in the manner set out in paragraph (a), of such redress mechanism and that they are not required to use it, or follow a particular sequence in seeking redress.In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;refer the dispute to the competent courts within the meaning of Clause 18.The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.The data importer shall abide by a decision that is binding under the applicable EU or Member State law.The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.|
- Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
- The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
- Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
- The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
- Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
- The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
- The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
- [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
- The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
- The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
- The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
- the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
- the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
- any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
- The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
- The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
- The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). [For Module Three: The data exporter shall forward the notification to the controller.]
- Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, if appropriate in consultation with the controller]. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by [for Module Three: the controller or] the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
- The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
- receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
- becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
[For Module Three: The data exporter shall forward the notification to the controller.]
- If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
- Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). [For Module Three: The data exporter shall forward the information to the controller.]
- The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
- Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
- The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
- The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. [For Module Three: The data exporter shall make the assessment available to the controller.]
- The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
- The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
- In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
- The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
- the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
- the data importer is in substantial or persistent breach of these Clauses; or
- the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority [for Module Three: and the controller] of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
- [For Modules One, Two and Three: Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] [For Module Four: Personal data collected by the data exporter in the EU that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall immediately be deleted in its entirety, including any copy thereof.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
- Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Poland.
Choice of forum and jurisdiction
- Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
- The Parties agree that those shall be the courts of Poland.
- A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
- The Parties agree to submit themselves to the jurisdiction of such courts.
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
A. LIST OF PARTIES
|Name: according to the Master Agreement Address: according to the Master AgreementContact person’s name, position and contact details: according to the Master AgreementActivities relevant to the data transferred under these Clauses: data processing for the performance of the Master AgreementRole: controller|
|Name: Devskiller sp. z o.o. Address: Al. Lindleya 16, 02-013 WarsawContact person’s name, position and contact details: according to the Master AgreementActivities relevant to the data transferred under these Clauses: data processing for the performance of the Master Agreement Signature and date: …Role: processor|
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred: Persons authorized to represent the Controller, test takers
Categories of personal data transferred: forename, surname, tax identification number, e-mail, address, telephone number, Company name, position held in the company, IP number, image.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: not applicable
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): continuous basis
Nature of the processing:
Purpose(s) of the data transfer and further processing: performance of the Main Agreement
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: duration of the Main Agreement, the period of limitation of claims
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: duration of the Main Agreement, the period of limitation of claims.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13:
The Polish Personal Data Protection Officer.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Measures of pseudonymisation and encryption of personal data.
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services.
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident.
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing.
Measures for user identification and authorization.
Measures for the protection of data during transmission.
Measures for the protection of data during storage.
Measures for ensuring physical security of locations at which personal data are processed.
Measures for ensuring events logging.
Measures for ensuring system configuration, including default configuration.
Measures for internal IT and IT security governance and management.
Measures for certification/assurance of processes and products.
Measures for ensuring data minimization.
Measures for ensuring data quality.
Measures for ensuring limited data retention.
Measures for ensuring accountability.
Measures for allowing data portability and ensuring erasure.
LIST OF SUB-PROCESSORS
According to the Appendix No. 1 to the DPA.