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Revised: February 2019
This Data Processing Addendum (“DPA”) supplements the Credential Management Agreement between Credly and Issuer, or other agreement between Issuer and Credly governing Issuer’s use of the Credly System, the form of which is set forth at www.credly.com/credential-management-agreement (the “Agreement”) when the GDPR applies to your use of the Credly System to process Issuer Data. This DPA is an agreement between Issuer and Credly, Inc. (“Credly”). Unless otherwise defined in this DPA or in the Agreement, all capitalised terms used in this DPA will have the meanings given to them in the Agreement and Section 16 of this DPA.
1. Data Processing.
1.1 Scope and Roles. This DPA applies when Issuer Data is processed by Credly. In this context, Credly will act as “processor” to Issuer who may act either as “controller” or “processor” with respect to Issuer Data (as each term is defined in the GDPR).
1.2 Credly as a Controller. To accept a Credential, an Earner directly provides consent to Credly to process that Earner’s personal information as required by applicable privacy laws. Upon acceptance of a Credential by an Earner, Credly becomes the controller of such Issuer Data, which shall thereafter be processed as Earner Data pursuant to the agreement between the Earner and Credly.
1.3 Details of Data Processing.
1.3.1 Subject matter. The subject matter of the data processing under this DPA is Issuer Data.
1.3.2 Duration. As between Credly and Issuer, the duration of the data processing under this DPA is for the term of the Agreement.
1.3.3 Purpose. The purpose of the data processing under this DPA is the provision of Credly’s digital credentialing services provided by means of the Credly system.
1.3.4 Nature of the processing: Credly will provide a platform for Issuer to create, manage, and issue digital credentials.
1.3.5 Type of Issuer Data: Issuer Data uploaded to the Credly System under Issuer’s Credly accounts.
1.3.6 Categories of data subjects: The data subjects may include Issuer’s customers, employees, end-users, and other individuals that are issued Credentials by Issuer.
1.4 Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
2. Issuer Instructions. The parties agree that this DPA and the Agreement constitute Issuer’s documented instructions regarding Credly’s processing of Issuer Data (“Documented Instructions”). Credly will process Issuer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Credly and Issuer, including agreement on any additional fees payable by Issuer to Credly for carrying out such instructions. Issuer is entitled to terminate this DPA and the Agreement if Credly declines to follow instructions requested by Issuer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.
3. Confidentiality of Issuer Data. Credly will not access or use, or disclose to any third party, any Issuer Data, except, in each case, as necessary to maintain under the Agreement, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Credly a demand for Issuer Data, Credly will attempt to redirect the governmental body to request that data directly from Issuer. As part of this effort, Credly may provide Issuer’s basic contact information to the government body. If compelled to disclose Issuer Data to a government body, then Credly will give Issuer reasonable notice of the demand to allow Issuer to seek a protective order or other appropriate remedy unless Credly is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this Section 3 varies or modifies the Standard Contractual Clauses.
4. Confidentiality Obligations of Credly Personnel. Credly restricts its personnel from processing Issuer Data without authorisation by Credly as described in the Credly Security Policies. Credly imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
5. Security of Data Processing
5.1 Credly has implemented and will maintain the technical and organisational measures for the Credly System as described in the Credly Security Standards and this Section. In particular, Credly has implemented and will maintain the following technical and organisational measures:
(i) physical security of the facilities as set out in Section 1.2 of the Credly Security Standards;
(ii) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organisational measures implemented by Credly as described in Section 2 of the Credly Security.
6.1 Authorised Sub-processors. Issuer agrees that Credly may use sub-processors to fulfill its contractual obligations under this DPA or to provide certain services on its behalf, such as providing support services. The Credly website (currently posted at https://info.credly.com/credly-platform-subprocessors) lists sub-processors that are currently engaged by Credly to carry out processing activities on Issuer Data on behalf of Issuer. At least 30 days before Credly engages any new sub-processor to carry out processing activities on Issuer Data on behalf of Issuer, Credly will update the applicable website and provide Issuer with a mechanism to obtain notice of that update. If Issuer reasonably objects to a new sub-processor and such objection cannot be satisfactorily resolved within a reasonable time, Issuer may terminate this Agreement without penalty upon 30 days’ written notice to Credly. If Issuer’s objection remains unresolved 30 days after it was raised and no notice of termination has been received, Issuer is deemed to accept the new sub-processor. Issuer consents to Credly’s use of sub-processors as described in this Section.
6.2 Sub-processor Obligations. Where Credly authorises any sub-processor as described in Section 6.1:
(i) Credly will restrict the sub-processor’s access to Issuer Data only to what is necessary to maintain the Credly System or as necessary under the Agreement. Credly will prohibit the sub-processor from accessing Issuer Data for any other purpose;
(ii) Credly will enter into a written agreement with the sub-processor and, to the extent that the sub-processor is performing the same data processing services that are being provided by Credly under this DPA, Credly will impose on the sub- processor the appropriate contractual obligations that Credly has under this DPA; and
(iii) Credly will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the sub-processors that cause Credly to breach any of Credly’s obligations under this
7. Data Subject Rights
Should a data subject contact Credly with regard to correction or deletion of its personal data, Credly will use commercially reasonable efforts to forward such requests to Issuer.
8. Security Breach Notification.
8.1 Security Incident. Credly will (a) notify Issuer of a Security Incident without undue delay after becoming aware of the Security Incident, and b) take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security
8.2 Credly Assistance. To assist Issuer in relation to any personal data breach notifications Issuer is required to make under the GDPR, Credly will include in the notification under section 8.1(a) such information about the Security Incident as Credly is reasonably able to disclose to Issuer, taking into account the nature of the Credly System, the information available to Credly, and any restrictions on disclosing the information, such as confidentiality.
8.3 Unsuccessful Security Incidents. Issuer agrees that:
(i) an unsuccessful Security Incident will not be subject to this Section 8. An unsuccessful Security Incident is one that results in no unauthorised access to Issuer Data or to any of Credly’s equipment or facilities storing Issuer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and
(ii) Credly’s obligation to report or respond to a Security Incident under this Section 8 is not and will not be construed as an acknowledgement by Credly of any fault or liability of Credly with respect to the SecurityNotification(s) of Security Incidents, if any, will be delivered to one or more of Issuer’s administrators by any means Credly selects, including via email. It is Issuer’s sole responsibility to ensure Issuer’s administrators maintain accurate contact information on the Credly management console and secure transmission at all times.
8.4 Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Issuer’s administrators by any means Credly selects, including via email. It is Issuer’s sole responsibility to ensure Issuer’s administrators maintain accurate contact information on the Credly management console and secure transmission at all times.
9. Credly Certifications and Audits.
9.1 Credly ISO-Certification and SOC Reports. In addition to the information contained in this DPA, upon Issuer’s request, and provided that the parties have an applicable NDA in place, Credly will make available the following documents and information:
(i) the System and Organization Controls (SOC) 2 Report.
9.2 Credly Audits. Credly uses external auditors to verify the adequacy of its security measures, including the security of the physical data centers from which Credly provides the Credly System. This audit: (a) will be performed at least annually; (b) will be performed according to SOC 2 standards or such other alternative standards that are substantially equivalent to SOC 2; (c) will be performed by independent third party security professionals at Credly’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Credly’s Confidential Information.
9.3 Audit Reports. At Issuer’s written request, Credly will provide Issuer with a copy of the Report so that Issuer can reasonably verify Credly’s compliance with its obligations under this DPA.
9.4 Privacy Impact Assessment and Prior. Taking into account the nature of the Credly System and the information available to Credly, Credly will assist Issuer in complying with Issuer’s obligations in respect of data protection impact assessments and prior consultation pursuant to Articles 35 and 36 of the GDPR, by providing the information Credly makes available under this Section 9.
Issuer agrees to exercise any right it may have to conduct an audit or inspection, including under the Standard Contractual Clauses if they apply, by instructing Credly to carry out the audit described in Section 9. If Issuer wishes to change this instruction regarding the audit, then Issuer has the right to request a change to this instruction by sending Credly written notice as provided for in the Agreement. If Credly declines to follow any instruction requested by Issuer regarding audits or inspections, Issuer is entitled to terminate this DPA and the Agreement. If the Standard Contractual Clauses apply, nothing in this Section varies or modifies the Standard Contractual Clauses nor affects any supervisory authority’s or data subject’s rights under the Standard Contractual Clauses.
11. Transfers of Personal Data.
11.1 Application of Standard Contractual Clauses. The Standard Contractual Clauses will apply to Issuer Data that is transferred outside the EEA, either directly or via onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR). The Standard Contractual Clauses will not apply to Issuer Data that is not transferred, either directly or via onward transfer, outside the EEA. Notwithstanding the foregoing, the Standard Contractual Clauses (or obligations the same as those under the Standard Contractual Clauses) will not apply if Credly has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for the lawful transfer of personal data (as defined in the GDPR) outside the EEA.
12. Termination of the DPA. This DPA shall continue in force until the termination of the Agreement (the “Termination Date”).
13. Return or Deletion of Issuer Data. Up to the Termination Date, Issuer will continue to have the ability to retrieve or delete Issuer Data in accordance with this Section. For 90 days following the Termination Date, Issuer may retrieve or delete any remaining Issuer Data from the Credly System, subject to the terms and conditions set out in the Agreement, unless prohibited by law or the order of a governmental or regulatory body or it could subject Credly or its Affiliates to liability. No later than the end of this 90 day period, Issuer will close all Credly accounts. Credly will delete Issuer Data when requested by Issuer.
14. Duties to Inform. Where Issuer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Credly, Credly will inform Issuer without undue delay. Credly will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Issuer Data subjected to those proceedings is Issuer’s property and area of responsibility and that Issuer Data is at Issuer’s sole disposition.
15. Entire Agreement; Conflict. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between any other agreement between the parties including the Agreement and this DPA, the terms of this DPA will control.
16. Definitions. Unless otherwise defined in the Agreement, all capitalised terms used in this DPA will have the meanings given to them below:
“Credly Security Standards” means the security standards attached to the Agreement, or if none are attached to the Agreement, attached to this DPA as Annex 1.
“Earner Data” means the “personal data” (as defined in the GDPR) of an Earner that is processed by Credly pursuant to an agreement between Credly and said Earner.
“Issuer Data” means the “personal data” (as defined in the GDPR) of an Earner that is uploaded to the Credly System under Issuer’s Credly accounts.
“EEA” means the European Economic Area.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
“Security Incident” means a breach of Credly’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Issuer Data.
“Standard Contractual Clauses” means Annex 2, attached to and forming part of this DPA pursuant to the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC.
Credly Security Standards
Capitalised terms not otherwise defined in this document have the meanings assigned to them in the Agreement.
1. Information Security Program. Credly will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Issuer secure Issuer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the Credly System, and (c) minimize security risks, including through risk assessment and regular testing. Credly will designate on or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security. Credly does not maintain an internal network.
1.2 Physical Security
1.2.1 Physical Access Controls. The Credly System is hosted in a datacenter located at nondescript facilities owned and operated by a third-party hosting provider (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. Credly’s hosting provider provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Credly’s hosting provider or its Affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. Credly’s hosting provider also maintains electronic intrusion detection systems designed to detect unauthorized access to the Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the All physical access to the Facilities by employees and contractors is logged and routinely audited.
2. Continued Evaluation. Credly will conduct periodic reviews of the security of the Credly System and adequacy of its information security program as measured against industry security standards and its policies and procedures. Credly will continually evaluate the security of its Credly System and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
Standard Contractual Clauses (processors)
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 entity identified as “Issuer” in the DPA (the “data exporter”)
and Credly, Inc., 349 5th Avenue, Suite 726, New York, NY 10016, USA. (the “data importer”)
each a “party”; together “the parties”,
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.
For 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 subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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.
The 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.
The 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 subprocessor 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 subprocessor 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
(ii) that it will ensure compliance with Clause 4(a) to (i).
The 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 organisational security measures specified in Appendix 2 before processing the personal data transferred;
(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 authorised to do so;
1 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, defence, 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 recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
(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 subprocessor will be carried out in accordance with Clause 11;
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data
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.
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
The 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.
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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor's obligations under such agreement.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
The data exporter is the entity identified as “Issuer” in the DPA
The data importer is Credly, Inc., a provider of web services.
Data subjects are defined in Section 1.2 of the DPA.
The personal data is defined in Section 1.3 of the DPA.
The personal data transferred will be subject to the following basic processing activities (please specify): The processing operations are defined in Section 1.3 of the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
The technical and organisational security measures implemented by the data importer are as described in the DPA.
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