This GDPR Data Processing Addendum (“DPA”), including the Standard Contractual Clauses referenced herein, governs the data processing arrangements between the Your Giving Group (“YGG”) and Customer.
This agreement amends and supplements any existing and currently valid agreement either previously or concurrently made between the Customer and YGG, including the YGG Terms of Service.
Unless otherwise defined in the Agreement, all capitalised terms used in this DPA will have the meanings given to them below:
‘Controller’ has the meaning given to it in the GDPR and, unless otherwise specified, is the Customer.
“Customer” means the organisation or individual to whom YGG provides Services under the YGG Terms of Service.
“Customer-Collected Data” means personal data that is collected and used by the Customer in the course of using the Services.
“EEA” means the European Economic Area.
“GDPR” 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 (General Data Protection Regulation).
“Other jurisdiction” means any jurisdiction which restricts the transfer or disclosure of personal data outside of the jurisdiction, to any other country that does not ensure an adequate level of data protection within the meaning of applicable data protection laws. “Personal Data” has the meaning given to it in the GDPR.
“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Processor” has the meaning given to it in the GDPR.
“Services” means the provision of Services to the Customer as stated in the Terms of Service.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
“YGG Security Standards” means the security measures outlined in Annex 1.
2. Effective Date
This DPA is effective on the date YGG begins to process Personal Data on behalf of the Customer.
3. Data Processing.
3.1.Scope and Roles. This DPA applies when Customer-Collected Data is stored or processed by YGG on behalf of the Customer. In this context, YGG will act as a “Processer”, and the Customer will be acting as a “Controller” of the Customer-Collected Data.
3.2.Details of Data Processing
- Subject matter. The subject matter of the data processed under this DPA is Customer-Collected Data.
- Duration. As between the Customer and YGG, the duration of the data processing under this DPA is determined by the YGG Terms of Service.
- Purpose. The purpose of the data processing under this DPA is the provision of Services to the Customer.
- Nature of the processing: Storage and processing of Customer-Collected Data by YGG and the Customer.
- Type of Personal Data: Customer-Collected Data processed by YGG for the purpose of providing Services.
- Categories of data subjects: The data subjects may include the Customer (where the Customer is an individual) or the Customer’s organisational members, representatives or employees, or individuals with a relationship of any kind with Customer, whose Personal Data is collected in the course of using the Services.
3.3.Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
4. GDPR Contractual Terms.
This Clause 4 only applies where the Controller is bound by the GDPR. Pursuant to Articles 28, 32 and 33 of the GDPR:
4.1. YGG, acting as processor, shall:
- process the Personal Data only on documented instructions from the Controller unless required to do so by European Union or Member State law to which YGG is subject; in such a case, YGG shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- take all appropriate technical and organizational security measures required of Processors pursuant to Article 32 of the GDPR, and shall take the security measures specified in Annex 1.
- taking into account the nature of the processing, assist the Controller, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights set forth in Chapter III of the GDPR. YGG may charge a fee (based on Processor’s reasonable costs) for responding to data subject requests.
- assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to Processor.
- at the direction of the Controller, delete or return all the Personal Data to the Controller after the end of the provision of services relating to processing, and delete existing copies unless European Union or Member State or United States law requires storage of the Personal Data; provided, however, that YGG may retain Personal Data for the length of any applicable statutes of limitations for the purposes of bringing or defending claims.
- make available to the Controller all information necessary to demonstrate compliance with the obligations set forth in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Controller and immediately inform the Controller if, in its opinion, an instruction infringes the GDPR or other European Union or Member State data protection provisions. YGG may charge a fee (based on Processor’s reasonable costs) for any audits.
4.2. Where the Processor engages another processor for carrying out specific processing activities on behalf of Controller, the same data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act under European Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR.
4.3. The Controller grants a general authorization to YGG to appoint its affiliates as sub-processors and a specific authorization to YGG and its affiliates to appoint as sub-processors third parties that provide reasonable technological and organizational safeguards to protect the Personal Data. Prior notice of the appointment of third parties as processors will be provided. The Controller has the right to terminate the Service without penalty on 60 days written notice if it objects to the appointment of any third party as processor. Please email us at firstname.lastname@example.org at any time to request a list of our sub-processors and/or to subscribe to our sub-processor email updates.
4.3. YGG shall notify the Controller without undue delay after becoming aware of a Personal Data breach. Such notice will, at a minimum:
- describe the nature of the Personal Data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of Personal Data records concerned;
- communicate the name and contact details of the data protection officer or other contact where more information can be obtained;
- describe the likely consequences of the personal data breach; and
- describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
5. International Transfers
5.1 The Controller acknowledges and agrees that YGG is located in the United States and that the provision of Personal Data to YGG for processing is a transfer or disclosure of Personal Data to the United States.
5.2 All transfers of Personal Data out of the European Economic Area, Switzerland, the United Kingdom, and Other Jurisdictions to YGG in the United States or any other country that does not ensure an adequate level of data protection within the meaning of applicable data protection laws shall be governed by the Standard Contractual Clauses. The Standard Contractual Clauses, and Appendices 1 and 2 to the Standard Contractual Clauses set out in Annex 2 to this Addendum, are incorporated in this DPA by this reference, as required.
If there is a conflict between any other agreement between the Customer and YGG, this Agreement prevails to the extent of the inconsistency.
Annex 1 YGG Security Standards
1. DATA SECURITY GOVERNANCE
YGG maintains internal organisational and governance procedures to appropriately manage information throughout its lifecycle. YGG regularly tests, assesses and evaluates the effectiveness of its Data Security Standards in managing risks to Personal Data.
YGG also has implemented:
- An incident response management process; and
- Data protection by design and default (as part of the YGG architecture principles).
2. PHYSICAL ACCESS CONTROL
YGG uses a variety of measures to prevent unauthorised access to the physical premises where Personal Data are processed. Those measures include:
- Centralized key and code management and card-key procedures for access to YGG managed premises;
- Surveillance systems including alarms and, as appropriate, CCTV monitoring; and
- Receptionists and visitor policies.
3. VIRTUAL ACCESS CONTROL
YGG implements appropriate measures to prevent its systems from being used by unauthorised persons. This is accomplished by:
- Individual, identifiable and role-based user account assignment;
- Role-based and password protected access and authorisation procedures;
- Centralised, standardised password management and password policies (minimum length/characters, change of passwords);
- Deactivation of user accounts after 5 failed login attempts;
- Automatic log-off in case of inactivity;
- Anti-virus management.
4. DATA ACCESS CONTROL
Individuals that are granted use of and access to YGG systems as part of the provision of the Services are only able to access the data that are required to be accessed by them within the scope of their responsibilities and to the extent covered by their respective access permission (authorisation) and such data cannot be read, copied, modified or removed without specific authorisation. This is accomplished by:
- Authentication at operating system level
- Separate authentication at application level
- Authentication against centrally managed authentication system
- Segregation of duties and authorisations between users, administrators and system developers
- Change control procedures that govern the handling of changes (application or OS) within the environment
- Remote access only via VPN including appropriate authorisation and authentication
- Logging of system and network activities to produce an audit-trail in the event of system misuse
5. DISCLOSURE CONTROL
YGG implements appropriate measures to prevent data from being read, copied, altered or deleted by unauthorised persons during electronic transmission and during the transport of data storage media. YGG also implements appropriate measures to verify to which entities’ data are transferred. This is accomplished by:
- Data transfer protocols including encryption for data carrier/media
- Data transfer via Secure File Transfer Protocol
- Encrypted VPN
- No physical transfers of backup media
6. DATA ENTRY CONTROL
YGG implements appropriate measures to monitor whether data have been entered, changed or removed (deleted), and by whom. This is accomplished by:
- Documentation of administration activities (user account setup, change management, access and authorisation procedures)
- Archiving of password-reset and access requests
- System log-files enabled by default
- Storage of audit logs for defined periods of time for audit trail analysis
- Centralisation of audit logs to correlate incidents cross-system
7. INSTRUCTIONAL CONTROL
YGG implements appropriate measures to ensure that data may only be processed in accordance with the instructions of the Customer. Those measures include:
- Binding policies and procedures on YGG employees
- Where sub-processors are engaged in the processing of data, including appropriate contractual provisions to the agreements with sub-processors to maintain instructional control rights
8. AVAILABILITY CONTROL
YGG maintains appropriate levels of redundancy and fault tolerance for accidental destruction or loss of data, including:
- Backup and recovery management systems
- Disaster recovery and business continuity plans and systems
- Storage and archive policies
- Anti-virus, anti-spam and firewall systems and management including policies
- Use of appropriately certified data centres.
9. SEPARATION CONTROL
YGG implements appropriate measures to ensure that data that are intended for different purposes are processed separately. This is accomplished by:
- Access request and authorisation processes provide Customer data separation (logical application-based segregation)
- Separation of functions (productions/testing)
Annex 2 Standard Contractual Clauses (Processors)
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
the entity identified as “Controller” in Clause 3.1 of the DPA
(the “data exporter”)
Your Giving Group, 6230 Wilshire Blvd., Suite 1136, Los Angeles, CA 90048, USA.
(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 Appendix 1.
For the purposes of the Clauses:
- ‘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;
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘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;
- ‘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;
- ‘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;
- ‘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.
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.
Third-party beneficiary clause
- 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.
- 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.
- 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.
- 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.
Obligations of the data exporter
The data exporter agrees and warrants:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- that it will ensure compliance with the security measures;
- 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;
- 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;
- 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;
- 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
- that it will ensure compliance with Clause 4(a) to (i).
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:
- 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;
- any accidental or unauthorised access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
E. 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 shall be carried out by the data exporter or an inspection body 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.
- 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.
- 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.
- 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.
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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- 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.
Cooperation with supervisory authorities
- 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.
- 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.
- 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).
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- 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 fulfil 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.
- 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.
- 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.
- 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.
Obligation after the termination of personal data-processing services
- 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.
- 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
The data exporter is the entity identified as “Controller” in the DPA
The data importer is Your Giving Inc.
Data subjects are defined in Section 3.2 of the DPA.
Categories of data
The personal data is defined in Section 3.2 of the DPA.
The personal data transferred will be subject to the following basic processing activities (please specify):
The processing operations are defined in Section 3.2 of the DPA.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties.
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 technical and organisational security measures implemented by the data importer are as described in Annex 1 of the DPA.