DATA PROCESSING ADDENDUM
Version Date: 15th June 2019
This Data Processing Addendum (“Addendum”) forms part of the Terms of Service available at okmusician.com/terms or contract or any other written or electronic agreement (“Principal Agreement”), including any written or electronic purchase orders, or other forms of contractual orders agreed between: (i) OKMatrix Ltd (“Provider”) acting on its own behalf and as agent for each Provider Affiliate;and (ii) Customer using the Provider services (“Subscriber”) acting on its own behalf and as agent for each Subscriber Affiliate.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Principal Agreement. Except where the context requires otherwise, references in this Addendum to the Principal Agreement are to the Principal Agreement as amended by, and including, this Addendum.
1. Definitions
1.1 In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1. “Applicable Laws” means (a) European Union or Member State laws with respect to any Subscriber Personal Data in respect of which any Subscriber Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Subscriber Personal Data in respect of which any Subscriber Group Member is subject to any other Data Protection Laws;
1.1.2. “Subscriber Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Subscriber, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.3 “Subscriber Group Member” means Subscriber or any Subscriber Affiliate;
1.1.4 “Subscriber Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Subscriber Group Member pursuant to or in connection with the Principal Agreement;
1.1.5 “Contracted Processor” means Provider or a Sub-Processor;
1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 “EEA” means the European Economic Area;
1.1.8 “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;
1.1.9 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.10 “Restricted Transfer“means:
1.1.10.1 a transfer of Subscriber Personal Data from any Subscriber Group Member to a Contracted Processor; or
1.1.10.2 an onward transfer of Subscriber Personal Data from a Contracted Processor to a Contracted 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) in the absence of the Standard Contractual Clauses to be established under section [6.4.3 or] 12 below;
1.1.11 “Services” means the services and other activities to be supplied to or carried out by or on behalf of Provider for Subscriber Group Members pursuant to the Principal Agreement;
1.1.12 “Standard** Contractual Clauses**” means the contractual clauses set out under section 13.4;
1.1.13 “Sub-Processor” means any person (including any third party and any Provider Affiliate, but excluding an employee of Provider or any of its sub-contractors) appointed by or on behalf of Provider or any Provider Affiliate to Process Personal Data on behalf of any Subscriber Group Member in connection with the Principal Agreement; and
1.1.14 “Provider Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Provider, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
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.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Authority
Provider warrants and represents that, before any Provider Affiliate Processes any Subscriber Personal Data on behalf of any Subscriber Group Member, Provider's entry into this Addendum as agent for and on behalf of that Provider Affiliate will have been duly and effectively authorised (or subsequently ratified) by that Provider Affiliate.
3. Processing of Subscriber Personal Data
3.1 Provider and each Provider Affiliate shall:
1.1.1 comply with all applicable Data Protection Laws in the Processing of Subscriber Personal Data; and
2.1.2 not Process Subscriber Personal Data other than on the relevant Subscriber Group Member's documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Provider or the relevant Provider Affiliate shall to the extent permitted by Applicable Laws inform the relevant Subscriber Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Subscriber Group Member:
3.2.1 instructs Provider and each Provider Affiliate (and authorises Provider and each Provider Affiliate to instruct each Subprocessor) to:
3.2.1.1 Process Subscriber Personal Data; and
3.2.1.2 in particular, transfer Subscriber Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Principal Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorised to give the instruction set out in section 3.2.1 on behalf of each relevant Subscriber Affiliate.
3.3 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Subscriber Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Subscriber may make reasonable amendments to Annex 1 by written notice to Provider from time to time as Subscriber reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 3.3) confers any right or imposes any obligation on any party to this Addendum.
4. Provider and Provider Affiliate Personnel
Provider and each Provider Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Subscriber Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Subscriber 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.
5. Security
5.1 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, Provider and each Provider Affiliate shall in relation to the Subscriber 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.
5.2 In assessing the appropriate level of security, Provider and each Provider Affiliate shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
6. Sub-Processing
6.1 Appointment of Sub-processors. Subscriber acknowledges and agrees that (a) Provider's Affiliates may be retained as Subprocessors; and (b) Provider and Provider's Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Provider or a Provider Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Subscriber Data to the extent applicable to the nature of the Services provided by such Sub-processor.
6.2 List of Current Sub-processors and Notification of New Sub-processors. Provider shall make available to Subscriber the current list of Sub-processors for the Services identified in Appendix 3 of the Standard Contractual Clauses attached hereto. Such Sub-processor lists shall include the identities of those Sub-processors and their country of location (“Infrastructure and Sub-processor Documentation”). Subscriber may find subprocessor list at okmusician.com/subprocessors. Provider will provide a mechanism to subscribe to notifications of new Sub-processors for each applicable Service, to which Subscriber shall subscribe, and if Subscriber subscribes, Provider shall provide notification of a new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services.
6.3 Objection Right for New Sub-processors. Subscriber may object to Provider's use of a new Sub-processor by notifying Provider in writing within ten (10) business days after receipt of Provider's notice in accordance with the mechanism set out in Section 6.2. In the event Subscriber objects to a new Sub-processor, as permitted in the preceding sentence, Provider will use reasonable efforts to make available to Subscriber a change in the Services or recommend a commercially reasonable change to Subscriber's configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Subprocessor without unreasonably burdening the Subscriber. If Provider is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Subscriber may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by Provider without the use of the objected-to new Sub-processor by providing written notice to Provider. Provider will refund Subscriber any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Subscriber.
6.4 Liability. Provider shall be liable for the acts and omissions of its Sub-processors to the same extent SFDC would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
7. Data Subject Rights
7.1 Taking into account the nature of the Processing, Provider and each Provider Affiliate shall assist each Subscriber Group Member by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Subscriber Group Members' obligations, as reasonably understood by Subscriber, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 Provider shall:
7.2.1 promptly notify Subscriber if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Subscriber Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Subscriber or the relevant Subscriber Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case Provider shall to the extent permitted by Applicable Laws inform Subscriber of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach
8.1 Provider shall notify Subscriber without undue delay upon Provider or any Sub-Processor becoming aware of a Personal Data Breach affecting Subscriber Personal Data, providing Subscriber with sufficient information to allow each Subscriber Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 Provider shall co-operate with Subscriber and each Subscriber Group Member and take such reasonable commercial steps as are directed by Subscriber to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation
Provider and each Provider Affiliate shall provide reasonable assistance to each Subscriber Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Subscriber reasonably considers to be required of any Subscriber Group Member 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 Subscriber Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Subscriber Personal Data
10.1 Subject to sections 10.2 and 10.3Provider and each Provider Affiliate shall promptly and in any event within 30 days of the date of cessation of any Services involving the Processing of Subscriber Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Subscriber Personal Data.
10.2 Subject to section 10.3, Subscriber may in its absolute discretion by written notice to Provider within 30 days of the Cessation Date require Provider and each Provider Affiliate to (a) return a complete copy of all Subscriber Personal Data to Subscriber by secure file transfer in such format as is reasonably notified by Subscriber to Provider; and (b) delete and procure the deletion of all other copies of Subscriber Personal Data Processed by any Contracted Processor. Provider and each Provider Affiliate shall comply with any such written request within 30 of the Cessation Date.
10.3 Each Contracted Processor may retain Subscriber Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Provider and each Provider Affiliate shall ensure the confidentiality of all such Subscriber Personal Data and shall ensure that such Subscriber Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 Provider shall provide written certification to Subscriber that it and each Provider Affiliate has fully complied with this section 10 within 30 days of the Cessation Date.
11. Audit rights
11.1 Subject to sections 11.2, Provider and each Provider Affiliate shall make available to each Subscriber Group Member on request all information necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by any Subscriber Group Member or an auditor mandated by any Subscriber Group Member in relation to the Processing of the Subscriber Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Subscriber Group Members only arise under section 11.1 to the extent that the Principal Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, article 28(3)(h) of the GDPR).
12 Restricted Transfers
12.1 Subject to section 12.3, each Subscriber Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Subscriber Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under section 12.1 on the later of:
12.2.1the data exporter becoming a party to them;
12.2.2 the data importer becoming a party to them; and
12.2.3 commencement of the relevant Restricted Transfer.
12.3 Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
13. General Terms
Governing law and jurisdiction
13.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1 the parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Principal Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2 this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Principal Agreement.
Order of precedence
13.2 Nothing in this Addendum reduces Provider's or any Provider Affiliate's obligations under the Principal Agreement in relation to the protection of Personal Data or permits Provider or any Provider Affiliate to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Principal Agreement. In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
13.3 Subject to section 13.2, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
Changes in Data Protection Laws, etc.
13.4 Subscriber may:
13.4.1 by at least 30 (thirty) calendar days' written notice to Provider from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
13.4.2 propose any other variations to this Addendum which Subscriber reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.5 If Subscriber gives notice under section 13.4.1:
13.5.1 Provider and each Provider Affiliate shall promptly co-operate (and ensure that any affected Sub-Processors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under section 6.4.3; and
13.5.2 Subscriber shall not unreasonably withhold or delay agreement to any consequential variations to this Addendum proposed by Provider to protect the Contracted Processors against additional risks associated with the variations made under section 13.4.1 [and/or 13.5.1].
13.6 If Subscriber gives notice under section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Subscriber's notice as soon as is reasonably practicable.
13.7 Neither Subscriber nor Provider shall require the consent or approval of any Subscriber Affiliate or Provider Affiliate to amend this Addendum pursuant to this section 13.5 or otherwise.
Severance
13.8 Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force.
The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties' intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Subscriber Personal Data as required by Article 28(3) GDPR.
Retention Period
Provider stores Subscriber Personal Data for the duration of the subscription. The data is deleted within 30 days of subscription expiry.
Data subjects
- Registered users of OKMatrix's apps.
- App users who have contacted OKMatrix's customer service with email and/or with their real name.
Processing operations
OKMatrix develops and operates mobile apps that help people learn to play musical instruments easily. OKMatrix's apps need register to gain the following benefits:
- Possibility to save progress across multiple devices
- Possibility to recover lost password
- More personalized and enhanced service by optimizing song suggestions and training tips based on the registered individual
OKMatrix also collects emails of unregistered users when they contact OKMatrix's customer support. Emails are needed for OKMatrix's support team to respond to end-user questions. Customer support can also be contacted anonymously.
Email addresses of users are stored in cloud-services of highly capable and reliable 3rd parties, including Amazon Web Services. All of OKMatrix's sub-processors have pledged to comply with GDPR. Subscriber may find subprocessor list at okmusician.com/subprocessors.