Data Processing Addendum
DefinitionsUnless otherwise defined herein, capitalized terms and expressions used in this Addendum shall have the following meaning:
- “CCPA” means the California Consumer Privacy Act of 2018.
- “Customer Personal Data” means any personal data or personal information of data subjects contained within the data provided to or accessed by XB Software by or on behalf of Customer or Customer end users in connection with the Services.
- “Global Data Protection Legislation” means the European Data Protection Legislation, CCPA, and LGPD as applicable to the processing of Customer Personal Data under the Agreement.
- “EEA” means the European Economic Area.
- “EU” means the European Union.
- “European Data Protection Legislation” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.
- “GDPR” means EU General Data Protection Regulation 2016/679.
- “LGPD” means the Brazilian General Data Protection Law.
- “Standard Contractual Clauses” or “SCCs” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
- “Services” means the services and/or products to be provided by XB Software to Customer under the Agreement.Agreement, including, but not limited to: registration, team members and projects management, and all other functionality available for using GanttPro.
- “Sub-processors” means any individual or entity (including any third party but excluding XB Software) appointed by or on behalf of XB Software to process Customer Personal Data in connection with the Agreement.
- The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR. The terms “personal information”, “Business”, and “Service Provider” have the meanings set forth in the CCPA, and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
Processing of Data
- This Addendum only applies to the extent that we are processing Customer Personal Data on behalf of Customer. XB Software shall comply with European Data Protection Legislation, LGPD, or CCPA, if applicable to the processing of Customer Personal Data. XB Software will only process Customer Personal Data in accordance with Customer’s instructions. Parties acknowledge and agree that details of the processing are described in Appendix 1.
- Customer warrants to XB Software that If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of XB Software as another processor, have been authorized by controller.
Customer’s InstructionsCustomer instructs XB Software to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorized by the Agreement, including this Addendum and its Appendices; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by XB Software as constituting instructions for purposes of this Addendum.
Data DeletionCustomer instructs XB Software to delete all Customer Personal Data (including existing copies) from XB Software’s systems as required by and in accordance with applicable law as soon as reasonably practicable, unless applicable law prevents XB Software from deleting such data.
- XB Software will implement and maintain appropriate technical and organizational measures provided in Appendix 2 for protection of the security, confidentiality, and integrity of the Controller’s personal data. XB Software may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
- XB Software has been certified according to ISO 27001.
Processor PersonnelXB Software 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. XB Software will grant access to Customer Personal Data only to employees, contractors, and Sub-processors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
Information Security Incidents
- XB Software will notify Customer without undue delay upon Processor becoming aware of a Information Security Incident affecting Company Personal Data. XB Software’s notification of or response to an Information Security Incident will not be construed as an acknowledgement by XB Software of any fault or liability with respect to the Information Security Incident. Customer is solely responsible for notification obligations related to Information Security Incident(s) any third parties under applicable law.
- XB Software will co-operate with Customer and take reasonable steps to identify the case of such Information Security Incident, minimize harm and prevent a recurrence.
Customer’s Security Responsibilities and Assessment
- Customer agrees that XB Software is under no obligation to protect Customer Personal Data that Customer chooses to store or transfer outside of XB Software's systems and its Sub-processors. Customer is fully responsible for proper use of the Services, including making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of Customer Personal Data; securing the account authentication credentials, systems, and devices Customer uses to access the Services; and securing Customer’s systems and devices XB Software uses to provide the Services; and backing up its Customer Personal Data. At the same time, this Section does not exclude XB Software's obligations under Section 5 (Security) and Section 7 (Information Security Incidents).
- Customer bears sole responsibility for reviewing the Security Documentation and assessing for itself whether the Services, Security Measures and obligations of the XB Software will meet Customer's needs, including with respect to any Customer security obligations under applicable Global Data Protection Laws. Accordingly, Customer acknowledges and agrees that the Security Measures implemented and maintained by XB Software provide a level of security consistent with the risk in relation to Customer's Personal Data.
Data Protection Impact Assessment and Prior ConsultationXB Software will reasonably assist Customer in complying with its obligations in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 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 available information.
- Customer may audit XB Software’s compliance with its obligations under this Addendum. XB Software will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.
- Customer pays for all audits and must reimburse XB Software for all audit time at XB Software's current professional services rates. When requesting an audit, Customer must submit to XB Software a detailed proposed audit plan with a specified audit date no earlier than two weeks later. Information and audit rights of Customer only arise this Section to the extent that the Addendum does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
Data Subject Rights
- Taking into account the nature of the processing, XB Software may assist Customer by implementing appropriate technical and organizational measures, insofar as this is possible and reasonable, for the fulfilment of Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- XB Software will, at its sole discretion, notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; or advise the data subject to submit his or her request to Customer, and/or notify the data subject that his or her request has been forwarded to Customer.
Data Storage and Data Transfer
- Customer agrees that XB Software may store and process personal data in any country in which the XB Software or any of its sub-processors maintains facilities.
- For transfers of personal data under this Addendum from the European Union, the European Economic Area and/or their member states and Switzerland to other countries Parties agree to enter into Standard Contract Clauses which are attached hereto as Appendix 3. At the Addendum Effective Date, Customer hereby authorizes the transfer of personal data and provides consent that the following data processing activities specifically authorized by Customer and indicated in Appendix 1, will take place in the countries outside of the EEA and in strict compliance to the legal bases for data transfer.
- Customer acknowledges and agrees that XB Software may engage third-party sub-processors in connection with the provision of the Services. As a condition to permitting a third-party sub-processor to process personal data, XB Software will enter into a written agreement with each sub-processor containing data protection obligations that provide at least the same level of protection for personal data as those in this Addendum. In either case, Customer agrees to enter into the Standard Contractual Clauses where necessary acknowledging that sub-processors may be appointed by XB Software in accordance with Clause 11 of Standard Contractual Clauses.
- A current list of sub-processors is accessible by the following link: https://ganttpro.com/sub-processors/ (list may be updated by XB Software from time to time in accordance with this Addendum).
- Customer may reasonably object to XB Software using a new sub-processor by notifying XB Software promptly in writing within five (5) days after receipt of XB Software’s notice about a new sub-processor. Such notice shall explain the reasonable grounds for the objection. In the event of Customer objects to a new Sub-processor, Customer and XB Software will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, either party may terminate Agreement by providing written notice.
Processing Records ana AnalyticsGDPR requires XB Software to collect and record certain information, including the name and contact details of each processor and / or controller on whose behalf XB Software acts and provide such information to supervisory authorities. If the GDPR applies to the processing of Customer's Personal Data, Customer provides such information to XB Software upon request and guarantees that all provided information will be accurate and current. Customer acknowledges and agrees that XB Software may create and extract from the processing associated with the Services, anonymous and/or aggregated data that does not identify Customer or any individual, as well as use, publish or transfer such data to third parties to improve XB Software products and services and for other legitimate business purposes.
NoticesAll notices and communications given under this Agreement may be given by XB Software to Customer via XB Software’s primary points of contact with Customer or sent by email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.
Details of the Data Processing
This Appendix 1 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer).
- Data Importer is XB Software.
- Data Exporter is the Customer that is a party to Agreement and Addendum.
- Subject Matter is data processing under this Addendum is Customer Personal Data.
- Duration of the Processing: XB Software will process Customer Personal Data as outlined in Section 4 (Deletion of Data) of this Addendum.
- Nature and Purpose of the Processing is process Customer Personal Data for the permitted purposes, which shall include: (i) processing as necessary to provide the Service in accordance with Agreement; (ii) processing initiated by Customer in its use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Customer that are consistent with the terms of the Agreement.
- Data Subjects: employees, agents, advisors, freelancers of Customer, individuals about whom data is provided to XB Software via the Services by Customer, end-users authorized by Customer to use the Services.
- Sub-processors are outlined in Section 13.2 (Sub-processors) of this Addendum.
- Categories of Data: first and last name, email address, phone number, title, position, employer, location, company size, company's industry.
This Appendix 2 is incorporated into the Addendum, and also forms part of the Standard Contractual Clauses (if such Standard Contractual Clauses are applicable to Customer). XB Software is committed to implementing and maintaining the technical and organizational Security Measures that are indicated at link: https://ganttpro.com/security-ganttpro. XB Software reserves the right to update and/or change the Security Measures from time to time, provided that this does not compromise the overall security of the Services.
Standard Contractual Clauses
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 Customer accepting the Clauses pursuant to the Addendum (the “Data Exporter”)
XB Software Ltd. (the “Data Importer”)
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.
Clause 1: DefinitionsFor the purposes of the Clauses:
- (a) '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;
- (b) 'the data exporter' means the controller who transfers the personal data;
- (c) '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;
- (d) '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;
- (e) '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;
- (f) '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.
Clause 2: Details of the transferThe 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.
Clause 3: Third-party beneficiary clause
- 1. 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.
- 2. 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.
- 3. 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 sub-processor shall be limited to its own processing operations under the Clauses.
- 4. 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.
Clause 4: Obligations of the data exporterThe data exporter agrees and warrants:
- (a) 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;
- (b) 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;
- (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- (d) 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;
- (e) that it will ensure compliance with the security measures;
- (f) 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;
- (g) 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;
- (h) 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 subprocessing 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;
- (i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a sub-processor 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
- (j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5: Obligations of the data importerThe 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 organizational security measures specified in Appendix 2 before processing the personal data transferred; EN L 39/12 Official Journal of the European Union 12.2.2010
- (i)Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defense, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognized sanctions, tax-reporting requirements or anti-money-laundering reporting requirements;
- (d) that it will promptly notify the data exporter about:
- (i)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,
- (ii)any accidental or unauthorised access, and
- (iii)any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized 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 subprocessing, 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 subprocessing, 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.
Clause 6: Liability
- 1. 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.
- 2. 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.
- 3. 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.
Clause 7: 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:
- (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- (b) 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.
- 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:
Clause 8: Cooperation with supervisory authorities
- 1. 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.
- 2. 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.
- 3. 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).
Clause 9: Governing LawThe Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10: Variation of the contractThe 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.
Clause 11: Subprocessing
- 1. 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.
- 2. 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.
- 3. The provisions relating to data protection aspects for subprocessing 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.
- 4. The data exporter shall keep a list of subprocessing 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.
Clause 12: Obligation after the termination of personal data processing services
- 1. 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.
- 2. 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.