Guardhat Data Processing Agreement
This Agreement serves as a written data processing agreement between Guardhat and Principal in connection with its use of the Services. This Agreement furthermore defines the applicable technical and organizational measures that Guardhat implements and maintains to protect Personal Information stored in the production system of the Services.
1. Definitions
1.1 “Guardhat Platform” is used herein as defined the Terms of Service and License for the Guardhat Platform.
1.2 “Applicable Privacy Laws” means all privacy, security, data protection laws of any applicable jurisdiction, including without limitation EU Data Protection Laws.
1.3 “Data Subject” means a living individual to whom Personal Information relates.
1.4 “EU Data Protection Laws” means EU 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, as it may be amended or replaced (including without limitation by the General Data Protection Regulation) from time to time, and any applicable national laws, rules and regulations implementing the foregoing.
1.5 “General Data Protection Regulation” means Regulation 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.
1.6 “Member State” means a member state of the European Union.
1.7 “Personal Information Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Principal Personal Information transmitted, stored or otherwise processed by Guardhat or its sub-processors in connection with providing the Services.
1.8 “Personal Information” means information relating to an identified or identifiable natural person (i.e. a person who can be identified, directly or indirectly, in particular by reference to an identifier such as a 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) or that is defined as “Personal Information,” “Personally Identifiable Information,” “Sensitive Personal Information,” “Personal Data,” or any similar designation by Applicable Privacy Laws, in any form and any media, that Guardhat receives, accesses, collects, processes, generates, compiles or creates in connection with the Terms of Service and License for the Guardhat Platform.
1.9 “Principal” means Principal as defined in the Terms of Service and License for the Guardhat Platform.
1.10 “Principal Personal Information” means all Personal Information made available by Principal to Guardhat under or in connection with the Terms of Service and License for the Guardhat Platform and/or processed by Guardhat on Principal’s behalf under the Terms of Service and License for the Guardhat Platform.
1.11 “Services” means the Services as defined in the Terms of Service and License for the Guardhat Platform.
1.12 “User” means User as defined in the Terms of Service and License for the Guardhat Platform.
2. Data processing
2.1 The Parties acknowledge that in respect of Principal Personal Information, Principal is the data controller and Guardhat is the data processor.
2.2 Each Party shall process Personal Information under or in connection with the Terms of Service and License for the Guardhat Platform in accordance with all Applicable Privacy Laws.
2.3 Guardhat shall process Principal Personal Information only in accordance with Principal’s written instructions from time to time and shall not process Principal Personal Information for any purpose other than those authorized by Principal under the Terms of Service and License for the Guardhat Platform, unless Guardhat is otherwise required to process Principal Personal Information by law or by a regulator.
2.4 Guardhat shall take reasonable steps to ensure the reliability of its employees who have access to Principal Personal Information.
2.5 Guardhat shall, having regard to the state of technological development and the cost of implementing any measures, take appropriate technical and organizational measures against the unauthorized or unlawful processing of Principal Personal Information and against the accidental loss or destruction of, or damage to, Principal Personal Information to ensure a level of security appropriate to: (i) the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected.
3. Purposes
3.1 The purposes for processing Principal Personal Information by Guardhat and its sub-processors under this Agreement are limited to:
(a) setting up, operating, monitoring and providing the Services, including the underlying infrastructure (hardware, software, secure data center facilities, connectivity);
(b) providing support services to Principal and Authorized Users;
(c) communicating with Principal and Authorized Users; and
(d) executing instructions given by Principal in accordance with this Agreement.
3.2 The categories of Principal Personal Information that are processed by Guardhat as a data processor under this Agreement are:
(a) data collected through Authorized Users’ use of the Guardhat Platform and devices connected thereto; and
(b) information about Principal’s employees or other Authorized Users of the Guardhat Platform (i.e. name, email address, worker ID number (if applicable), training results, medical evaluation for workers safety passed (only “yes” or “no”, no specific health data) and specific notes taken by employees).
4. Sub-processors
4.1 Principal hereby authorizes Guardhat to appoint, remove or replace one or more sub-processors, including Affiliates of Guardhat, to process Principal Personal Information on behalf of Principal: (i) to the extent necessary to fulfill its contractual obligations under the Terms of Service and License for the Guardhat Platform; and (ii) provided that Guardhat remains responsible for any acts or omissions of its sub-processors in the same manner as for its own acts and omissions hereunder.
4.2 Guardhat shall impose obligations on its sub-processors that are consistent with Guardhat’s obligations as data processor in this Agreement.
5. Guardhat’s obligations
5.1 Guardhat shall process Principal Personal Information only on documented instructions from Principal, including as permitted by the Terms of Service and License for the Guardhat Platform (unless Guardhat is otherwise required to process Principal Personal Information by European Union or Member State law to which Guardhat is subject, in which case Guardhat shall inform Principal of that legal requirement unless prohibited by that law on important grounds of public interest) and immediately inform Principal if, in Guardhat’s opinion, any instruction given by Principal to Guardhat infringes Applicable Privacy Laws. Guardhat shall not be obligated to perform a comprehensive legal examination.
5.2 Guardhat shall ensure that persons authorized to process Principal Personal Information are subject to confidentiality obligations in respect of the Principal Personal Information.
5.3 Guardhat shall, 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, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Guardhat’s processing under the Terms of Service and License for the Guardhat Platform, including as appropriate: (i) the pseudonymization and encryption of Principal Personal Information; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Principal Personal Information in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
5.4 Guardhat shall, taking into account the nature of the processing, assist Principal by appropriate technical and organizational measures, insofar as reasonably possible, to respond to requests from Data Subjects for access to or rectification, erasure, portability, restriction of processing or objections to processing of their Principal Personal Information.
5.5 Guardhat shall reasonably assist Principal in ensuring compliance with Principal’s security, Personal Information Breach notification, impact assessment and consultation obligations under Applicable Privacy Laws, taking into account the nature of processing and information available to Guardhat.
5.6 Guardhat shall at Principal’s election, delete or return all Principal Personal Information and existing copies to Principal after expiration or termination of the Terms of Service and License for the Guardhat Platform (unless European Union or Member State law requires Guardhat to store the Principal Personal Information).
5.7 Guardhat shall notify Principal without undue delay after becoming aware of a Personal Information Breach.
6. Audits
6.1 Guardhat shall make available to Principal all information necessary, and – in so far as this is required by Applicable Privacy Laws – allow for and contribute to audits and inspections conducted by Principal or Principal’s mandated auditor, to demonstrate Guardhat’s compliance with its obligations under this Agreement.
6.2 Unless required by Applicable Privacy Laws an audit is limited to once in any twelve-month period and an audit it may not exceed three business days.
6.3 Principal shall provide Guardhat with reasonable prior written notice of any audit (at least 60 days unless a data protection authority requires Principal to carry out an audit sooner).
6.4 Principal and Guardhat shall mutually agree the scope and determine the agenda of the audit in advance. The audit shall, to the extent possible, rely on certifications and audit reports or other verifications available to confirm Guardhat’s compliance with this Agreement and exclude any repetitive audits. Principal shall conduct the audit under reasonable time, place and manner conditions and provide Guardhat with a copy of the audit report.
6.5 Principal and Guardhat each shall bear its own costs for an audit.
7. Principal’s obligations
7.1 Principal shall ensure that all Principal Personal Information provided to Guardhat under or in connection with the Terms of Service and License for the Guardhat Platform has been collected and provided to Guardhat in accordance with Applicable Privacy Laws. In particular, Principal shall ensure that all Data Subjects have provided all necessary consents and have been provided with all information necessary to ensure fair and transparent processing of their Principal Personal Information.
7.2 Principal acknowledges that Guardhat is reliant on Principal for direction as to the extent to and purposes for which Guardhat is entitled to use and process Principal Personal Information. Guardhat shall not be liable for, and Principal agrees to indemnify, defend, and hold harmless Guardhat, its affiliates, and their successors, assigns, officers, directors, employees, and agents from any claim (including any claim brought by a Data Subject), liability, loss, damage, lien, judgment and cost, including attorneys’ fees and litigation expenses, related to or arising from: (i) Guardhat processing Principal Personal Information in accordance with Principal’s instructions; and/or (ii) Principal’s failure to comply with any of its obligations under this Agreement and/or Applicable Privacy Laws.
8. International data transfers
The Standard Contractual Clauses below are hereby incorporated into this Agreement.
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
STANDARD CONTRACTUAL CLAUSES (PROCESSORS) pursuant to Commission Decision of 5 February 2010 (2010/87/EU)
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,
Principal (hereinafter referred to as the ‘data exporter’)
and
Guardhat Inc (hereinafter referred to as 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 the Data Processing Agreement.
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 organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised 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 subprocessor 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, unauthorised 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 subprocessor 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 organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) 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;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) shall be carried out by the data exporter or an inspection body 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 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 fulfill 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.
2. 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.
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 Principal
Data importer
The data importer is Guardhat, Inc.
Data subjects
The personal data transferred concern the following categories of data subjects: Principal’s employees.
Categories of data
The personal data transferred concern the following special categories of data:
(a) data collected through Authorized Users’ use of the Guardhat Platform and devices connected thereto; and
(b) information about Principal’s employees or other Authorized Users of the Guardhat Platform (i.e. name, email address, worker ID number (if applicable), training results, medical evaluation for workers safety passed (only “yes” or “no”, no specific health data) and specific notes taken by employees).
Special categories of data (if appropriate): none
Processing operations
The personal data transferred will be subject to the following basic processing activities:
(a) setting up, operating, monitoring and providing the Services, including the underlying infrastructure (hardware, software, secure data center facilities, connectivity);
(b) providing support services to Principal and Authorized Users;
(c) communicating with Principal and Authorized Users; and
(d) executing instructions given by Principal in accordance with this Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached:
The data importer has implemented and will maintain appropriate technical and organizational security measures intended to protect Principal Personal Information (as defined in Section 1.10 of the Guardhat Platform Data Processing Agreement) against unauthorized, unlawful or accidental disclosure, processing, loss or destruction. Those measures are as described in Section 2.5 of the Guardhat Platform Data Processing Agreement and include, but are not necessarily limited to:
(a) Physical access and authentication control measures intended to prevent unauthorized access to Principal Personal Information;
(b) Data access control measures intended to ensure that authorized individuals gain access only to the Principal Personal Information that they are entitled to access in accordance with their access rights and that Principal Personal Information cannot be read, copied, altered, or deleted without authorisation;
(c) Measures intended to prevent unauthorised reading, copying, alteration, or deletion of Principal Personal Information during electronic transmission or storage;
(d) Availability control measures intended to protect Principal Personal Information from being accidentally lost or destroyed; and
(e) Measures intended to ensure that Personal Information collected for different purposes can be processed in a segregated fashion.