Data Processing Agreement

This Data Processing Agreement is hereby incorporated in the Vacation Tracker Terms of Service agreement. All capitalized terms not defined herein shall have the meaning set forth in the Terms of Service. Unless the Client has a superseding written agreement with Vacation Tracker, Vacation Tracker may amend this DPA from time to time, as it business evolves. Any revisions will become effective on the date Vacation Tracker publishes the changes. The Client can review the most current version of the DPA at any time by visiting this page. If the Client uses the Services after the effective date of any changes, that use will constitute the acceptance of the revised Data Processing Agreement.

This Data Processing Agreement is entered between Vacation Tracker Technologies (the “Data Processor”) and the Client (the “Company”) and it is incorporated into and governed by the Vacation Tracker Terms of service agreement (together as the “Parties”).

(together as the “Parties”)

WHEREAS

(A) The Company acts as a Data Controller.

(B) The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.

(C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

(D) The Parties wish to lay down their rights and obligations regarding the subject matter of this Agreement.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

1.1 Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:

1.1.1 “Agreement” means this Data Processing Agreement and all Schedules;

1.1.2 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Company pursuant to or in connection with the Principal Agreement;

1.1.3 “Contracted Processor” means a Sub-processor;

1.1.4 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;

1.1.5 “EEA” means the European Economic Area;

1.1.6 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;

1.1.7 “GDPR” means REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

1.1.8 “Data Transfer” means:

1.1.8.1 a transfer of Company Personal Data from the Company to a Contracted Processor; or

1.1.8.2 an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

1.1.9 “Services” means the leave tracking software services the Company provides.

1.1.10 “Sub-processor” means any person appointed by or on behalf of Processor to process Personal Data on behalf of the Company in connection with the Agreement.

1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Company Personal Data

2.1 Processor shall:

2.1.1 fully comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and

2.1.2 not Process Company Personal Data other than on the relevant Company’s documented instructions, being in accordance with applicable Data Protection Laws.

2.2 The Company instructs Processor to process Company Personal Data. In case any of the Company’s instruction for processing the Company Personal Data appears to be not compliant with the applicable Data Protection Laws, the Processor will immediately inform the Company, In such case, the Company and the Processor shall cooperate to ensure that the Company Personal Data are processed fully in accordance with applicable Data Protection Laws.

3. Processor Personnel

Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with applicable Data Protection Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Sub-processors

5.1 The Processor is entitled to outsource the implementation of the Processing on the Controller’s instructions to Sub-processors, either wholly or in part. The Processor will inform Controller of any intended changes concerning the addition or replacement of other processors.

5.2 The Controller reserves the right to object to any Sub-processor, provided that, in its reasonable opinion, Sub-processor data objectively does not provide sufficient guarantees to implement appropriate technical and organizational data protection measures.

5.3 Processor shall ensure that each engaged Sub-processor contractually complies with the confidentiality obligations, notification obligations and security measures relating to the Processing of Personal Data, which obligations and measures must at least comply with the provisions of this Agreement.

5.4 Sub-processing in the meaning of this agreement does not include ancillary services, such as telecommunication services, postal / transport services, maintenance and user support services or the disposal of data carriers, as well as other measures to ensure the confidentiality, availability, integrity, and resilience of the hardware and software of the data Processing equipment.

5.5 Where the Controller, based upon the obligations under the GDPR, is obliged to provide information to a Data Subject about the Processing of his or her Personal Data, the Processor shall assist the Controller in making this information available. The Processor shall as soon as possible and in the most detailed manner possible, refer the requests (or complaints) of the Data Subject to the Controller and shall assist the Controller with any request from a Data Subject concerning his or her rights under applicable Data Protection Laws and in particular – but not only – his or her right of access, rectification, correction, objection, restriction of processing and the right to be forgotten, the right of data portability. The Processor shall rectify, erase or process the Personal Data in any other way when the Controller instructs so to enable the latter to comply with the request of the Data Subject.

5.6 The Controller hereby agrees to the outsourcing the implementation of the Processing on the Controller’s instructions to the following Sub-processors provided that relevant agreement between the Processor and each respective Sub-processor is concluded in accordance with applicable Data Protection Laws:

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise guaranteed Data Subject rights under the Data Protection Laws.

6.2 Processor shall:

6.2.1 promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and

6.2.2 ensure that it respond to that request timely, following the applicable Data Protection Laws, with prior consultation of Company or as required by applicable Data Protection Laws to which the Processor is subject, in which case Processor shall to the extent permitted by applicable Data Protection Laws inform Company of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

7.1 Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment

8.1 Data Protection Impact Assessment and Prior Consultation. Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Company Personal Data

9.1 Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Company Personal Data.

10. Audit rights

10.1 Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Company or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors.

10.2 Information and audit rights of the Company only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected in accordance with principles for transfers stipulated under the GDPR. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.

12. General Terms

12.1 Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain.

12.2 Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address.