GDPR: Data Processing Addendum.

Effective as of May 25, 2018

Gmelius is committed to complying with the General Data Protection Regulation (“GDPR”), and enabling our customers to comply with the latter data protection law. We follow a strict Privacy by Design framework and maintain a robust privacy and security program that we continually assess and improve. We understand the GDPR has robust requirements and obligations for both data controllers and data processors and we are committed to helping our customers use Gmelius in a compliant manner. Our DPA is available below so that our customers can be confident that their data is processed in a lawful and transparent manner.

This GDPR Data Processing Addendum (“DPA”) forms part of the Master Services Agreement or Terms of Use available at https://gmelius.com/terms or such other location as the Terms of Use may be posted from time to time (as applicable, the “Agreement”), entered into by and between the Customer and Gmelius Ltd (Gmelius SA / Gmelius AG) (“Gmelius”), pursuant to which Customer has accessed Gmelius' Application Services as defined in the applicable Agreement. The purpose of this DPA is to reflect the parties' agreement with regard to the processing of personal data in accordance with the requirements of Data Protection Legislation as defined below.

If the Customer entity entering into this DPA has executed an order form or statement of work with Gmelius pursuant to the Agreement (an “Ordering Document”), but is not itself a party to the Agreement, this DPA is an addendum to that Ordering Document and applicable renewal Ordering Documents. If the Customer entity entering into this DPA is neither a party to an Ordering Document nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity that is a party to the Agreement executes this DPA.

This DPA shall not replace or supersede any agreement or addendum relating to processing of personal data negotiated by Customer and referenced in the Agreement, and any such individually negotiated agreement or addendum shall apply instead of this DPA.

In the course of providing the Application Services to Customer pursuant to the Agreement, Gmelius may process personal data on behalf of Customer. Gmelius agrees to comply with the following provisions with respect to any personal data submitted by or for Customer to the Application Services or collected and processed by or for Customer through the Application Services. Any capitalized but undefined terms herein shall have the meaning set forth in the Agreement.

Data Processing Terms

In this DPA, “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation (Regulation (EU) 2016/279)), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction.

The terms “data controller”, “data processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organisational measures” shall be interpreted in accordance with applicable Data Protection Legislation.

The parties agree that Customer is the data controller and that Gmelius is its data processor in relation to personal data that is processed in the course of providing the Application Services. Customer shall comply at all times with Data Protection Legislation in respect of all personal data it provided to Gmelius pursuant to the Agreement.

The subject-matter of the data processing covered by this DPA is the Application Services ordered by Customer either through Gmelius' website or through an Ordering Document and provided by Gmelius to Customer via www.gmelius.com or as additionally described in the Agreement or the DPA. The processing will be carried out until the term of Customer’s ordering of the Application Services ceases.

In respect of personal data processed in the course of providing the Application Services, Gmelius:

  1. shall process the personal data only in accordance with the documented instructions from Customer (as set out in this DPA or the Agreement or as otherwise notified by Customer to Gmelius). If Gmelius is required to process the personal data for any other purpose provided by applicable law to which it is subject, Gmelius will inform Customer of such requirement prior to the processing unless that law prohibits this on important grounds of public interest.
  2. shall notify Customer without undue delay if, in Gmelius' opinion, an instruction for the processing of personal data given by Customer infringes applicable Data Protection Legislation.
  3. shall implement and maintain appropriate technical and organisational measures designed to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected.
  4. may hire other companies to provide limited services on its behalf, provided that Gmelius complies with the provisions of this Clause. Any such subcontractors will be permitted to process personal data only to deliver the services Gmelius has retained them to provide, and they shall be prohibited from using personal data for any other purpose. Gmelius remains responsible for its subcontractors’ compliance with the obligations of this DPA. Any subcontractors to whom Gmelius transfers personal data will have entered into written agreements with Gmelius requiring that the subcontractor abide by terms substantially similar to this DPA. A list of subcontractors is available to the Customer in Appendix A of this DPA. If Customer requires prior notification of any updates to the list of subprocessors, Customer can request such notification in writing by emailing Gmelius support. Gmelius will update the list within thirty (30) days of any such notification if Customer does not legitimately object within that timeframe. Legitimate objections must contain reasonable and documented grounds relating to a subcontractor’s non-compliance with applicable Data Protection Legislation. If, in Gmelius reasonable opinion, such objections are legitimate, the Customer may, by providing written notice to Gmelius, terminate the Agreement.
  5. shall ensure that all Gmelius personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations sets out in this Clause.
  6. at the Customer’s request and cost (and insofar as is possible), shall assist the Customer by implementing appropriate and reasonable technical and organisational measures to assist with the Customer’s obligation to respond to requests from data subjects under Data Protection Legislation (including requests for information relating to the processing, and requests relating to access, rectification, erasure or portability of the personal data) provided that Gmelius reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance.
  7. when the General Data Protection Regulation (Regulation (EU) 2016/279) comes into effect, shall take reasonable steps at the Customer’s request and cost to assist Customer in meeting Customer’s obligations under Article 32 to 36 of that regulation taking into account the nature of the processing under this DPA, provided that Gmelius reserves the right to reimbursement from Customer for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance.
  8. at the end of the applicable term of the Application Services, upon Customer’s request, shall securely destroy or return such personal data to Customer. See: How to permanently delete my account?
  9. may transfer personal data from the EEA to the US for the purposes of this DPA. Gmelius agrees it will provide at least the same level of privacy protection for EU Personal Data as required under the U.S.-EU and U.S.-Swiss Privacy Shield frameworks.
  10. shall allow Customer and its respective auditors or authorized agents to conduct audits or inspections during the term of the Agreement, which shall include providing reasonable access to the premises, resources and personnel used by Gmelius in connection with the provision of the Application Services, and provide all reasonable assistance in order to assist Customer in exercising its audit rights under this Clause. The purposes of an audit pursuant to this Clause include to verify that Gmelius is processing personal data in accordance with its obligations under the DPA and applicable Data Protection Legislation. Notwithstanding the foregoing, such audit shall consist solely of: (a) the provision by Gmelius of written information (including, without limitation, questionnaires and information about security policies) that may include information relating to subcontractors; and (b) interviews with Gmelius’ IT personnel. Such audit may be carried out by Customer or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality. For the avoidance of doubt no access to any part of Gmelius’ IT system, data hosting sites or centers, or infrastructure will be permitted. Before the commencement of any such audit, Customer and Gmelius shall mutually agree upon the scope, timing, and duration of the audit. Customer shall promptly notify Gmelius with information regarding any non-compliance discovered during the course of an audit. Customer may not audit Gmelius more than once annually. Customer is responsible for all costs and fees related to such audit, including all reasonable costs and fees for any and all time Gmelius expends for any such audit, in addition to the rates for services performed by Gmelius.
  11. If Gmelius becomes aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by Gmelius in the course of providing the Application Services (an “Incident”) under the Agreement it shall without undue delay notify Customer and provide Customer (as soon as possible) with a description of the Incident as well as periodic updates to information about the Incident, including its impact on Customer Content. Gmelius shall additionally take action to investigate the Incident and reasonably prevent or mitigate the effects of the Incident.
  12. Gmelius shall provide information requested by Customer to demonstrate compliance with the obligations set out in this DPA.

Data Subjects

Any users of the Customers extension, web and mobile applications or any identifiable person to whom personal data is processed by Gmelius on behalf of data controller other than anonymous data.

Data Processing Activities

The provision of Application Services by Gmelius to Customer.

Term

This DPA shall remain in effect as long as Gmelius carries out Personal Data processing operations on behalf of Customer or until the termination of the Gmelius Contract (and all Personal Data has been returned or deleted in accordance with Section 8 above).

Last Updated: Jun. 21, 2018 (Data Subjects)


Appendix A

List of Sub-Processors

Sub-Processor Country Purpose GDPR-compliant
Google, Inc. USA Cloud Infrastructure, Logging, Analytics Yes
Drift, Inc. USA Helpdesk & Support Yes
HelpScout, Inc. USA Helpdesk & Support Yes
Stripe, Inc. USA Payment Gateway Yes
Mixpanel, Inc. USA Analytics Yes
Sendgrid, Inc. USA Email Delivery Service Yes
Cloudflare, Inc. USA DNS & CDN Yes
APIHub, Inc. USA Business Intelligence Yes

Imprint

Gmelius Ltd. (Gmelius SA / Gmelius AG)
Chemin du Pré-Fleuri, 3
CH-1228 Plan-les-Ouates
Geneva, Switzerland
[email protected]
Registration number: CHE-411.148.873