Data Processing Agreement
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.
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the EU Data Protection Directive 95/46/EC and its national implementations in each case as amended, replaced or superseded from time to time, including without limitation the GDPR.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:
- not publish, disclose, divulge or otherwise permit third parties to access Personal Data except in accordance with this DPA or with Your prior written consent; and
- treat all Your Content as confidential information.
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:
- to the extent permitted by Applicable Data Protection Law, Minitab provides prior written notice of such disclosure to You without undue delay and that notice shall include a copy of the request and any related documents;
- Minitab takes lawful actions to avoid, and minimize the extent of, that disclosure;
- to the extent possible, Minitab receives confidentiality undertakings in a form approved by You from the entity to whom Your Content is disclosed; and
- before disclosing Your Content to the governmental authority Minitab reasonably cooperates with You to resist that disclosure if You choose to do so. Where Minitab is legally prohibited from notifying You of the disclosure, Minitab shall use reasonable efforts to request the governmental authority to direct the request directly to You.
5.1 Minitab shall provide all reasonable and timely assistance to You:
- to enable You to respond to any request from a Data Subject to exercise any of their rights under Applicable Data Protection Law (including without limitation rights of access, correction, objection, erasure and data portability, as applicable);
- where applicable by virtue of Article 28(3) of the GDPR, to provide reasonable cooperation and assistance to You with any data protection impact assessments which are referred to in Article 35 of the GDPR or with any regulatory consultations that is legally required to make in respect of Your Content, taking into account the nature of the Processing and the information available to Minitab.
- upon Your request, in the event of an investigation by or request from any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation or request relates to Your Content. Minitab will take steps reasonably requested by You to assist You in complying with any obligations in connection with such an investigation or request.
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.
7.1 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.
10.1 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.
11.1 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.
12.1 This DPA survives termination or expiration of the Agreement.