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Data processing agreement (DPA)

Data processing agreement between

Each individual Brainframe customer that Brainframe Technologies S.à.r.l. processes data for and that has not otherwise entered into a valid data processor agreement with Brainframe Technologies S.à.r.l.

(the “Company”)


and 


Brainframe Technologies S.à.r.l.
6 Rue Edmond Goergen
L-6139 Junglinster
Luxembourg

  

(the “Data Processor”)

 

(together as the “Parties”)


This Data Processing Addendum (“DPA”) supplements the Terms and Conditions (the "Agreement") and the privacy policy or other agreement between you or the entity you represent when the GDPR applies to your use of the Brainframe Services to process Customer Data.

The DPA is adopted as an appendix to the Agreement. In the event that any provision of this DPA is inconsistent with any term(s) of the Agreement, the DPA will prevail.

(1) This DPA regulates the rights and obligations of the Parties in the context of the processing of personal data on behalf of the customer. (2) This DPA applies to all activities in which employees of the Data Processor or subcontractors commissioned [ordered] by the Data Processor process personal data of the Data Controller on its behalf.


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.

 

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 Subprocessor;

               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 EU General Data Protection Regulation 2016/679;

               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 Brainframe.com software as a service ISMS/GRC services the Company provides. 

1.1.10 "Subprocessor" 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        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. 

2.2     The Company instructs Processor to process Company Personal Data.

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 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 processing

5.1 Processor shall not appoint (or disclose any Company Personal Data) to any Sub processor without notifying the Company at least 2 weeks in advance about the change (Allowing the change to be objected)
5.2 The following sub processors are used and considered as accepted by the Company.

Amazon Web Services, Inc

Subjects – End Users, Website visitors
Type of data – Full Name, Email, and any personal data uploaded/created by the customer, IP addresses (not personally identifiable by Amazonwithout access to other sources of data linked to IP, e.g. ISP PII data)

Purpose – To provide the application infrastructure of the Brainframe Service

Duration – For the duration of the contract

Location – Data is only stored in EU (eu-central-1 and eu-west-1) with assurance to adhere to CISPE Data Protection Code of conduct and are also certified under the EU-US Data privacy framework (DPF)

Security – ISO27001, SOC 1, SOC 2, SOC 3, CSA, ISO27017, ISO27701, ISO27018, PCI DSS Level 1, PCI (https://aws.amazon.com/compliance/programs/)


Cloudflare, Inc

Subjects – Prospects, Customers, End Users

Type of data – IP addresses (not personally identifiable by Cloudflare without access to other sources of data linked to IP, e.g. ISP PII data)

Purpose – DNS and Security monitoring solution to provide a stable and secure service

Duration – For the duration of the contract

Location – Data is only stored in EU (using  Cloudflare Data Localization Suite ensuring processing in ISO27001 certified EU region data centers only, and they are also certified under the EU-US Data privacy framework (DPF))

Security – ISO27001, ISO27701, ISO27018, SOC2, BSI Qualification (https://www.cloudflare.com/en-gb/trust-hub/compliance-resources/)


Datadog, Inc

Subjects – End Users, Website visitors

Type of data – IP addresses (not personally identifiable by Datadog without access to other sources of data linked to IP, e.g. ISP PII data)

Purpose – Application, security and infrastructure monitoring solution required to provide a stable and secure service

Duration – Personal data is stored for maximum 2 weeks and then automatically removed

Location – Data is only stored in EU (Certified under the EU-US Data privacy framework (DPF))

Certifications – ISO27001, SOC 2 (https://www.datadoghq.com/security/?tab=compliance)


Odoo, SA

Subjects – Prospects, Customers, End Users

Type of data – Full Name, Phone, Email, Bank details

Purpose – ERP to manage Support, Product communications, Marketing, CRM, sales and payment data of the Controller

Duration – For the duration of the contract

Location – Data is only stored in EU

Security – CSA STAR Level 1 (https://www.odoo.com/security)


Calendly, LLC

Subjects – Prospects, Customers, End Users

Type of data – Full name, Phone, Email

Purpose – Facilitate finding a free slot in the calendar to set up an appointment

Duration – For the duration of the contract

Location – Data is stored in the US but they are certified under the EU-US Data privacy framework (DPF)

Security – ISO27001, SOC 2, PCI (https://calendly.com/security)

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 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 does not respond to that request except on the documented instructions of Company 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 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 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.

9.2 Processor shall provide written certification to Company that it has fully complied with this section 9 within 10 business days of the Cessation Date.

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. 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.

Email:  privacy [at] brainframe.com

13.        Governing Law and Jurisdiction

13.1     This Agreement is governed by the laws of Luxembourg

13.2     Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Luxembourg, subject to possible appeal to the Supreme Court of Justice Luxembourg

14.        Changes to our DPA

This DPA may change from time to time in line with legislation or industry developments. We will not explicitly inform our website users of these changes but our clients will get informed 14 days upfront of any sensible change via email. For website users we recommend that you check this page occasionally for any changes. Specific changes and updates are mentioned in the change log below.

15.        Change log

13/07/2022

  • DPA publication

09/11/2023

  • Clarification in Art 5.1 that we will provide notice to all customers before changing/adding sub contractors
  • Details about existing sub-processors in Art 5.2

16/11/2023

  • Additional details provided in Art 5 related to privacy assurances in line with data privacy framework and clarification that IP address can only be considered as PII by the subcontractors if they combine it with other source PII (e.g ISP data which is typically not possible)