Last updated October 21, 2022
This Data Processing Agreement ("Agreement") forms part of the Contract for Services under the Podsie Terms of Service (the "Principal Agreement"). This Agreement is an amendment to the Principal Agreement and is effective upon its incorporation to the Principal Agreement, the incorporation of which may be specified in either the Principal Agreement or an executed amendment to the Principal Agreement. Upon its incorporation into the Principal Agreement, this Agreement will form a part of the Principal Agreement.
The term of this Agreement shall follow the term of the Principal Agreement. Terms not defined herein shall have the meaning as set forth in the Principal Agreement.
(A) You (the person or organization) act as a Data Controller (the "Controller").
(B) You (the person or organization) to subcontract certain Services (as defined below), which imply the processing of personal data, to Podsie, acting as a Data Processor (the "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 state their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
- Personal Data: any data we hold that relates to an identified or identifiable individual
- Contracted Processor: a Subprocessor
- Data Protection Laws: EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country
- EEA: the European Economic Area
- EU Data Protection Laws: EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR
- GDPR: EU General Data Protection Regulation 2016/679
- Data Transfer:
- a transfer of Personal Data from Controller to a Contracted Processor; or;
- an onward transfer of 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)
- Services: Podsie’s online software.
- Subprocessor: any person appointed by or on behalf of Processor to process Personal Data on behalf of Controller in connection with the Agreement.
- 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.
- Platform: the software application that we provide via the Website, accessible from teacher.podsie.org and student.podsie.org
2. Processing of Personal Data
When You decide to use Podsie, You will remain the Data Controller. We process the data on Your behalf, in the manner You have requested. You remain responsible for your data, including any inaccuracies or changes that need to be made, and You are responsible for the processing being lawful at all times. Your responsibility as Data Controller covers all of Your school's data on the platform.
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 Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Personal Data, as strictly necessary for the purposes of the Principal Agreement; and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, thus ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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 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.
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.
Podsie may engage Subprocessors to provide limited parts of the Services (including customer support services).
Podsie will ensure that Subprocessors only access and use Personal Data in accordance with the terms of the Agreement.
Owner consents to Podsie subcontracting the processing of Personal Data to Subprocessors in accordance with the terms of the Agreement.
6. Data Subject Rights
Taking into account the nature of the Processing, Processor shall assist Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Controller obligations (as reasonably understood by Controller) to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and;
- ensure that it does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, thus providing Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Processor shall cooperate with Controller and take reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation, and remediation of each such Personal Data Breach.
8. Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to Controller with any data-protection impact assessments; and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller 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
Subject to this section 9, Processor shall promptly - and in any event, within 20 business days of the date of receiving a written request - delete and procure the deletion of all copies of specified Company Personal Data.
Processor shall provide written certification to Controller that it has fully complied with this section 9 within 20 business days of receiving such request.
10. Data Transfer
As part of providing the Services, Podsie may transfer, store, and process Customer Personal Data in the United States, Canada, or any other country in which Podsie maintains facilities. Podsie maintains a secure, cloud-based product, with all data hosted using Amazon Web Services in the United States.
11. Audit rights
Subject to this section 11, Processor shall make available to Controller on request all information necessary to demonstrate compliance with this Agreement and shall allow for and contribute to audits, including inspections, by Controller or an auditor mandated by Controller in relation to the Processing of the Company Personal Data by the Contracted Processors.
12 General Terms
Confidentiality. Each Party must keep confidential any information it receives about the other Party and its business in connection with this Agreement ("Confidential Information”) 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, or; (b) the relevant information is already in the public domain.
Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. Controller shall be notified by email sent to the address related to its use of the Service under the Principal Agreement. Processor shall be notified by email sent to the address: email@example.com.
13. Governing Law and Jurisdiction
This Data Processing Agreement of Service and any dispute or claim arising out of, or related to them, shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of California.