Effective Date: December 1, 2021
Incorporated into the Subscription for the following offered Minitab Services, when applicable:
This Data Processing Agreement (“DPA”) sets forth confidentiality, security, and data privacy requirements with respect to Personal Data that is Processed by you (“You”) and by Minitab, LLC (“Minitab”) in connection with the provision by Minitab of the Services. This DPA constitutes a data processing agreement for the purposes of Applicable Data Protection Law. This DPA is deemed part of the Agreement. The provisions of this DPA will apply if there is any conflict between this DPA and the Agreement. Unless otherwise defined in this DPA, all capitalized terms used in this DPA have the meanings given to them in the Agreement.
1. DEFINITIONS.
For the purposes of this DPA unless the context requires otherwise, the following terms have these meanings:
1.1 “DPA Effective Date” means the date the Service is first launched or as listed in the purchase confirmation, receipt, and/or on the invoice You receive from Us for the Service.
1.2 “Agreement” means the Subscription Agreement between You and Minitab, LLC or its affiliate, or any other agreement, for the Service, in effect as of the DPA Effective Date between Minitab and You.
1.3 “Applicable Data Protection Law” means all federal, state, regional, territorial, national and local laws, regulations, and rules by any government, agency or authority that relate to the Processing or the security of Personal Data and which are applicable to Minitab or the Processing of Personal Data by You. For the avoidance of doubt this includes, where applicable, the EU Data Protection Directive 95/46/EC and its national implementations in each case as amended, replaced or superseded from time to time, including without limitation the GDPR.
1.4 “Controller” shall have the meaning given to this term in article 4 of the GDPR, i.e., the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
1.5 “Your Content” shall mean any data, information or material You provide, submit or upload to the Services, and Processed by Minitab in the performance of the Services, including without limitation, Personal Data.
1.6 “GDPR” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council.
1.7 “Data Subject” shall have the meaning given to this term in article 4 of the GDPR, i.e., an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.8 “Personal Data” shall have the meaning given to this term in article 4 of GDPR, i.e., any information relating to an identified or identifiable natural person.
1.9 “Personal Data Breach” shall mean any: (a) breach of security, confidentiality or integrity leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Content transmitted, stored or otherwise Processed; (b) unauthorized intrusion into, control of, access to, modification of or use of any system that is used by Minitab to secure, defend, protect or Process Your Content; and (c) event which led Minitab to suspect or would lead a reasonable person exercising a reasonable level of diligence and investigation to suspect that either (a) or (b) has occurred.
1.10 “Processing” (and “Process”) shall have the meaning given to this term in article 4 of the GDPR, i.e., any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.11 “Processor” shall have the meaning given to this term in article 4 of the GDPR, i.e., a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
1.12 “Services” means the services subscribed to by You in accordance with the Agreement and provided by Minitab in a software as a services (“SaaS”) mode.
1.13 “Standard Contractual Clauses” or “SCCs” shall mean Commission Decision 2021/914 adopted on 4 June 2021, or the - current European Commission approved version of such clauses, permitting transfers of Personal Data to Processors established outside the EU.
1.14 “Sub-Processor” means any party, other than an employee of Minitab, appointed by Minitab, or by any other Sub-Processor of Minitab, with whom Minitab enters into a contract, agreement or arrangement whereby it agrees to receive from Minitab, or from any other Sub-Processor of Minitab, Your Content exclusively with the intention for Processing to be carried out on behalf of You in accordance with its instructions, the terms of the Agreement and the DPA.
1.15 “Supervisory Authority” shall have the meaning given to this term in article 4 of the GDPR and which has jurisdiction over Minitab's or Processor's Processing of Personal Data.
2. RELATIONSHIP OF THE PARTIES.
2.1 This DPA governs the manner in which Your Content shall be Processed. Minitab is the Processor of Your Content and You are the Controller of Your Content under the Agreement.
2.2 The Services are provided by Minitab on a SaaS model and where You bring Your own data and largely control the upload and handle directly the use of Your Content by the Services. In this respect, You agree and understand that Minitab will not monitor Your Content or Your use, unless You explicitly request by writing Minitab to access a specific and well identified data or set of data in Your Content. In any other case, only You know what data is comprised in Your Content. It is therefore the sole liability of You to ensure that Your Content is collected and transmitted to Minitab in compliance with Applicable Data Protection Law and, in particular, to have a legal basis for Processing and to have properly informed Data Subjects of the collection and Processing of their Personal Data.
3. GENERAL PERSONAL DATA OBLIGATIONS.
3.1 The Parties shall comply with the terms of this DPA, and Applicable Data Protection Law relating to the collection or Processing of Personal Data.
3.2 Minitab shall Process Your Content solely as necessary to perform its obligations under the Agreement (or as otherwise agreed in writing by Minitab and You) on behalf of You and strictly in accordance with the documented instructions You provide and Applicable Data Protection Law (the “Permitted Purposes”). If Minitab is legally required to Process Your Content otherwise than as instructed by You, it shall inform You before such Processing occurs, unless the law requiring such Processing prohibits Minitab from informing You on an important ground of public interest, in which case it shall notify You as soon as that law permits it to do so.
3.3 Additional instructions outside the scope of this DPA (if any) require prior written agreement between Minitab and You, including agreement on any additional fees payable by You to Minitab for carrying out such instructions. You shall ensure that Your instructions comply with laws, rules and regulations applicable in relation to Your Content, and that the Processing of Your Content in accordance with Your instructions will not cause Minitab to be in breach of Data Protection Law and, in particular, of the GDPR.
3.4 Minitab shall notify You about any instruction from You which, in its opinion, infringes Applicable Data Protection Law.
4. CONFIDENTIALITY OBLIGATIONS.
4.1 Minitab shall ensure that any person that it authorizes to Process Personal Data (including but not limited to Minitab’s employees, contractors and other individuals engaged to provide the Services) (“Authorized Personnel”) shall be subject to a strict duty of confidentiality, including without limitation any obligations of confidentiality that are set forth in the Agreement, and shall not permit any person who is not under such a duty of confidentiality to Process Personal Data. Minitab shall ensure that all Authorized Personnel use Personal Data solely to the extent necessary for the Permitted Purposes.
4.2 Minitab shall:
4.3 If Minitab is required by Data Protection Law to disclose any of Your Content to a governmental authority then it shall be entitled to do so provided that:
5. COOPERATION.
5.1 Minitab shall provide all reasonable and timely assistance to You:
5.2 Minitab may charge You for its cooperation and assistance set forth in this DPA, which goes beyond the reasonable standards and which will require more than reasonable efforts to comply with.
6. DATA TRANSFERS.
6.1 Where there are transfers of Your Content from a Member State of the EU or from a Member State of the EEA to a third country outside the EU and outside the EEA, You and Minitab acknowledge that steps must be taken to ensure that such data transfers comply with Applicable Data Protection Law. You and Minitab acknowledge that the same or similar obligations can apply for international transfers of Personal Data from a non-EU country and shall in good faith take the steps required where necessary under Applicable Data Protection Law.
6.2 In order to ensure that adequate safeguards are in place for Processing and transfer of Your Content, You and Minitab hereby agree to enter into the SCCs and Minitab undertakes to enter into data processing agreements with its service providers, including Sub-Processors, that incorporate the SCCs adopted by the European Commission.
7. SECURITY.
7.1 Minitab will maintain and use appropriate technical and organizational measures to prevent unauthorized access to or use of the Personal Data, and to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of information or data that Minitab processes in the course of providing the Services.
7.2 Such safeguards shall include, in accordance to the article 28 (3) (c) of the GDPR, but are not limited to (a) security management policies and procedures including incident management procedures to address security events; (b) access controls, including password change controls, to ensure access to information is granted on a need to know and least privileged basis; (c) device and software management controls to guard against viruses and other malicious or unauthorized software; (d) industry standard encryption safeguards as appropriate and where required by law; (e) security awareness training to ensure employees understanding of their responsibilities in guarding against security events and unauthorized use or access to information; (f) logging procedures to proactively record user and system activity for routine review; and (g) facility access and protection controls to limit physical access to information resources and guard against environmental hazards (e.g., water or fire damage).
7.3 Minitab shall document its security measures in written form and shall make those documents available to You upon reasonable request.
8. PERSONAL DATA BREACH.
8.1 Minitab will notify You in writing of a Personal Data Breach without undue delay, after it is notified, discovers, or would have discovered had it exercised reasonable diligence.
8.2 As information regarding the Personal Data Breach is collected or otherwise reasonably becomes available to Minitab, Minitab will also provide You with (a) a description of the nature and reasonably anticipated consequences of the Personal Data Breach; (b) the measures taken to mitigate any possible adverse effects and prevent a recurrence; and (c) where possible, information about the types of Personal Data that were the subject of the Personal Data Breach.
8.3 You agree to coordinate with Minitab on the content of Your intended public statements or required notices for the affected individuals and/or notices to the relevant regulators regarding the Personal Data Breach.
8.4 Unless legally required by Data Protection Laws, Minitab will not disclose the Data Breach to any third party without first obtaining Your prior written consent.
9. DELETION OR RETURN OF PERSONAL DATA.
9.1 Upon termination of the Services, and upon Your request in accordance with terms of Your Agreement, Minitab will promptly return or delete any remaining copies of Personal Data on Minitab’s systems or Services environments, except as otherwise stated in the Agreement.
10. AUDIT.
10.1 Minitab shall permit an independent Certified Public Accountant engaged by You (“Auditor”) to audit Minitab’s compliance with this DPA, and shall make available to You and Auditors information, systems and staff necessary to conduct such audit and to demonstrate compliance with Applicable Data Protection Law. Your Auditor shall be subject to a confidentiality and non-disclosure agreement in form and substance reasonably acceptable to Minitab, and subject to Minitab’s approval, which will not be unreasonably withheld. Minitab agrees that You and Auditors may enter its premises solely for the limited purpose of conducting this audit, provided that You give reasonable written prior notice, conduct the audit at a mutually agreeable time during normal business hours, and take all reasonable measures to prevent unnecessary disruption to Minitab’s operations. You will not exercise this audit right more than once in any 12-month period, except (a) if and when required by a competent data protection authority or other regulator; or (b) if You believe a further audit is necessary due to a Personal Data Breach.
11. SUB-PROCESSORS.
11.1 Minitab may sub-contract any Processing of Your Content performed on behalf of You under this DPA and the Agreement. You hereby grant Minitab a general authorization to engage Sub-Processors in connection with the performance of the Services by Minitab.
11.2 To the extent Minitab engages Sub-Processors to Process Your Content, such entities shall be subject to the same level of data protection and security as Minitab under this DPA provided that each permitted subcontractor that receives Your Content is subject to an agreement which impose privacy, confidentiality and data security obligations on the subcontractor.
12. SURVIVAL.
12.1 This DPA survives termination or expiration of the Agreement.
Controller to Processor
SECTION I
Clause 1
Purpose and scope
Clause 2
Effect and invariability of the Clauses
Clause 3
Third-party beneficiaries
Clause 4
Interpretation
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
[Intentionally Omitted]
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
Clause 9
Use of sub-processors
Clause 10
Data subject rights
Clause 11
Redress
Clause 12
Liability
Clause 13
Supervision
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
15.2 Review of legality and data minimisation
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of France.
Clause 18
Choice of forum and jurisdiction
APPENDIX
ANNEX I
A. LIST OF PARTIES
Data exporter(s):
The individual or entity that has entered into the agreement with data importer for the provision of application(s) as described in the agreement.
Activities relevant to the data transferred under these Clauses: Uploading of data into the application(s) of processor.
Role (controller/processor): Controller
Data importer(s):
Name: Minitab, LLC
Address: 1829 Pine Hall Road, State College, PA 16801 USA
Contact: Data Protection Officer, DPO@minitab.com, +1 814-238-3280
Activities relevant to the data transferred under these Clauses: Processing of data uploaded into the application(s) by data exporter.
Role (controller/processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Categories of personal data transferred
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Nature of the processing
Purpose(s) of the data transfer and further processing
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Measures of pseudonymisation and encryption of personal data
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
Measures for user identification and authorisation
Measures for the protection of data during transmission
Measures for the protection of data during storage
Measures for ensuring physical security of locations at which personal data are processed
Measures for ensuring events logging
Measures for ensuring system configuration, including default configuration Measures for internal IT and IT security governance and management
Measures for ensuring data quality Measures for ensuring limited data retention
Measures for ensuring accountability
Measures for allowing data portability and ensuring erasure
For transfers to (sub-) processors, also describe the specific technical and organizational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.
ANNEX III
LIST OF SUB-PROCESSORS
The controller has authorised the use of the following sub-processors:
1. | Name: | Microsoft Azure |
Address: | One Microsoft Way, Redmond, WA 98052 USA | |
Contact: | Chief Privacy Officer https://www.microsoft.com/en-us/concern/privacy +1 425-882-8080 |
|
Description of processing: Data input by user is processed in the application(s) according to the user requested functionality as described in Annex I with the same or greater data protection obligations as those binding the data importer under these Clauses. | ||
2. | Name: | Amazon Web Services |
Address: | 410 Terry Avenue North, Seattle, WA 98109 USA | |
Contact: | Chief Privacy Officer or AWS Legal https://aws.amazon.com/contact-us/compliance-support/ |
|
Description of processing: Data input by user is processed in the application(s) according to the user requested functionality as described in Annex I with the same or greater data protection obligations as those binding the data importer under these Clauses. | ||
3. | Name: | Rackspace Technology |
Address: | 1 Fanatical Place, Windcrest, TX 78218 USA | |
Contact: | Chief Privacy Officer privacy@Rackspace.com 800-961-4454 |
|
4. | Name: | Docebo |
Address: | 600 North Thomas Street, Suite A, Athens, GA 30601 USA | |
Contact: | Chief Privacy Officer privacy@docebo.com 800-681-4601 |
|
Description of processing: Data input by user is processed in the application(s) according to the user requested functionality as described in Annex I with the same or greater data protection obligations as those binding the data importer under these Clauses. |