Data Privacy Addendum
This Data Privacy Addendum (“DPA”) supplements the standard Services Agreement (“Agreement”), as updated from time to time between Customer and Gemba Academy Inc. (“Gemba Academy”) when the GDPR, LGPD, and CCPA applies to your use of Gemba Academy’s services to process customer data. This DPA is an agreement between you and the entity you represent (“Customer,” “you,” or “your”) and Gemba Academy. Unless otherwise stated in this DPA or in the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 1 of this DPA.
Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meaning given to them below:
“Gemba Academy” means Gemba Academy’s servers, networking equipment, and host software systems (e.g., virtual firewalls) that are within Gemba Academy’s control and are used to provide the Services.
“Customer” means you or the entity you represent.
“Customer Data” means the “personal data” (as defined by the GDPR) that is uploaded to the Services under Customer’s Gemba Academy account.
“CCPA” will mean the California Consumer Privacy Act of 2018 Assembly Bill No. 375.
“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), including as implemented or adopted under the laws of the United Kingdom.
“LGPD” means the Lei Geral de Proteção de Dados Pessoais (General Personal Data Protection Law, 13709/2018) as amended by Law 13,853/2019, effective 16 August 2020.
“Processing” means any operation or set of operations which is performed upon personal data, whether or not by automatic 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.
“Security Incident” means a breach of Gemba Academy’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data.
“Processor” means a natural or legal person who processes personal data on behalf of the controller as defined in the GDPR, or a “Service Provider” as is defined in the CCPA;
- Data Processing
- Scope and Roles
This DPA applies when Customer Data is processed by Gemba Academy. In this context, Gemba Academy will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the GDPR, LGPD, and the CCPA.
- Customer Controls
The Services provide Customer with a number of controls, including security features and functionalities, that Customer may use to retrieve, correct, delete, or restrict, Customer Data. Without prejudice to sections 5.1 or 5.2, Customer may use these controls as technical and organizational measures to assist it in connection with its obligations under the GDPR, LGPD, and the CCPA, including its obligations relating to responding to requests from data subjects.
- Details of Data Processing
- Subject Matter
The subject matter of the data processing under this DPA is Customer Data.
As between Gemba Academy and Customer, the duration of the data processing under this DPA is determined by Customer.
The purpose of the data processing under this DPA is the provision of the Services initiated by Customer from time to time.
- Nature of the Processing
Compute, storage, and such other Services as described in the Agreement and initiated by the Customer from time to time.
- Type of Customer Data
Customer Data uploaded to the Services under Customer’s Gemba Academy accounts.
- Categories of Data Subjects
The data subjects may include Customer’s customers, employees, suppliers, and end-users.
- Subject Matter
- 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, the LGPD (for Customers located in Brazil), and the CCPA (for customers located in California.)
- Customer Instructions
The parties agree that this DPA and the Agreement (including the provision of instructions via configuration tools) constitute Customer’s documented instructions regarding Gemba Academy’s processing of Customer Data (“Documented Instructions”). Gemba Academy will process Customer Data only in accordance with Documented Instructions. Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Gemba Academy and Customer, including agreement on any additional fees payable by Customer to Gemba Academy for carrying out such instructions. Customer is entitled to terminate this DPA and Agreement if Gemba Academy declines to follow instructions requested by the Customer that are outside the scope of, or changed from, those given or agreed to be given in this DPA.
- Confidentiality of Customer Data
Gemba Academy will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a government body (such as a subpoena or a court order). If a governmental body sends Gemba Academy a demand for Customer Data, Gemba Academy will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, Gemba Academy may provide Customer’s basic contact information to the governmental body. If compelled to disclose Customer Data to a government body, then Gemba Academy will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Gemba Academy is legally prohibited from doing so. If the Standard Contractual Clauses apply, nothing in this section varies or modifies the Standard Contractual Clauses.
- Confidentiality Obligations of Gemba Academy Personnel
Gemba Academy will ensure that its personnel engaged in the processing of Customer Data are informed of the confidential nature of the Customer Data and have received appropriate training on their responsibilities. Gemba Academy will ensure that confidentiality obligations survive the termination of the personnel engagement.
- Confidentiality of Customer Data
- Security of Data Processing
Gemba Academy will maintain appropriate technical and organizational measures for protection of the Customer Data (including protection against unauthorized or unlawful processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of the Customer Data. Gemba Academy will not materially decrease the overall security of the Services during a subscription term.
- Network Security
Gemba Academy stores customer information in secure networks maintained by vendors which protect their databases using industry standard security measures. Gemba Academy does not store Customer Data on internal systems.
- Personnel Security
Gemba Academy limits access to Customer Data to employees who have a legitimate business need for such access. Employees are trained to protect the security of the Customer Data. All Gemba Academy employees are required to comply with the standards laid out in the Data Protection Policy, found at https://www.gembaacademy.com/data-protection-policy.
- Network Security
- Security Breach Notification
- Security Incident
Gemba Academy will: (a) notify Customer of a Security Incident without undue delay after becoming aware of the Security Incident; and (b) take reasonable steps to mitigate the effects and minimize any damage resulting from the Security Incident.
- Gemba Academy Assistance
To assist Customer in relation to any personal data breach notifications Customer is required to make under the GDPR, LGPD, and CCPA, Gemba Academy will include in the notification under section 6.1 such information about the Security Incident as Gemba Academy is reasonably able to disclose to Customer, taking into account the nature of the Services, the information available to Gemba Academy, and any restrictions on disclosing the information, such as confidentiality.
- Unsuccessful Security Incidents
Customer agrees that:
- an unsuccessful Security Incident will not be subject to this Section 6. An unsuccessful Security Incident is one that results in no unauthorized access to Customer Data or to any of Gemba Academy’s equipment or facilities storing Customer 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 unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and
- Gemba Academy’s obligation to report or respond to a Security Incident under this Section 6 is not and will not be construed as an acknowledgement by Gemba Academy of any fault or liability of Gemba Academy with respect to the Security Incident.
Notification(s) of Security Incidents, if any, will be delivered to one or more of Customer’s administrators by any means Gemba Academy selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information with Gemba Academy and secure transmission at all times.
- Security Incident
- Termination of the DPA
This DPA shall continue in force until the termination of this Agreement (the “Termination Date”).
- Return or Deletion of Customer Data
The Services provide Customer with controls that Customer may use to retrieve or delete Customer Data as described in the Documentation. The Customer may request to have their data removed by calling Gemba Academy’s toll-free phone number or by emailing Gemba Academy directly. Up to the Termination Date, Customer will continue to have the ability to retrieve or delete Customer Data in accordance with this section. For 90 days following the Termination Date, Customer may retrieve or delete any remaining Customer Data from the Services, subject to the terms and conditions set out in the Agreement, unless prohibited by the law or order of a governmental or regulatory body or it could subject Gemba Academy to liability. No later than the end of this 90 day period, Customer will close all Gemba Academy accounts. Gemba Academy will delete Customer Data when requested by Customer by using the service controls provided for this purpose by Gemba Academy.
- Duty to Inform
Where Customer Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Gemba Academy, Gemba Academy will inform Customer without undue delay. Gemba Academy will, without undue delay, notify all relevant parties in such action (e.g. creditors, bankruptcy trustee) that any Customer Data subject to those proceedings is Customer’s property and area of responsibility and that Customer Data is at Customer’s sole disposition.
- Conflict and Other Agreements
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, except that the Service Terms will control over this DPA.
- Limitation of Liability
Each party’s liability, taken together in the aggregate, arising out of or relating to this DPA, whether in contract or tort or under any other theory of liability, is subject to the “Limitation of Liability” section in the Agreement. Gemba Academy’s total liability for all claims from Customer arising out of this DPA or the Agreement shall apply in the aggregate for all claims Customer submits under this DPA or the Agreement.
- Processor is Prohibited from the Following:
Selling personal data; retaining, using, or disclosing personal data for a commercial purpose other than providing the services for the Controller; and retaining, using, or disclosing the personal data outside of this DPA. Processor understands its contractual restrictions with the Controller and will comply with them.
- Limits on Using Personal Data
Processor will not retain, use, or disclose the personal data for any purpose other than for the specific purpose of performing the services set forth in this DPA.
- Limiting Personal Data for the Business Purpose
The parties agree to limit the collection, sale, or use of the personal data disclosed except as necessary to perform the “business purpose” for which the Processor was retained.
Standard Contractual Clauses for the GDPR (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 “Customer” in the DPA
(the “data exporter”)
Gemba Academy, Inc.
460 Johnson Rd
Keller, TX 76248
(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 Clause:
(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 organizational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the Transfer
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.
Third-Party Beneficiary Clause
- 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.
- 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 ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by obligation 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.
- The data subject can enforce against the subprocessor 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 become insolvent, unless any successor entity has assumed the entire legal obligations of the data explorer 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 subprocessor shall be limited to its own processing operations under the Clauses.
- 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.
Obligations of the Data Exporter
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 organizational 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, unauthorized 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 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
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the Data Importer
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, the data importer agrees to promptly inform 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 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of 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 unauthorized 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 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 importer 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 carried out by the subprocessor will be carried out in accordance with Clause 11; and
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- 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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- 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 subprocessor of any of their obligations referred to in Clause 3 or 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 or by operation of law, in which case the data subject can enforce its rights against any such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- 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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and Jurisdiction
- 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:
- to refer the dispute to mediation by an independent person, or (where applicable) by a supervisory authority; or
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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.
Cooperation with Supervisory Authorities
- 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.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, 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.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case, the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the Contract
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.
- 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 subprocessor which imposes the same data obligations on the subprocessor as imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall be liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall 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 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 subprocessor shall be limited to its own processing operations under the Clauses.
- 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.
- 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.
Obligations After the Termination of Personal Data Processing Services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor 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 on 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.
- The data importer and the subprocessor 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.
Appendix 1 to the Standard Contractual Clauses
The data exporter is the entity identified as “Customer” in the DPA.
The data importer is Gemba Academy, Inc., a provider of web services.
Data subjects are defined in Section 2.3 of the DPA.
Categories of Data
The personal data is defined in Section 2.3 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 2.3 of the DPA.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organizational security measures implemented by the data importer are as described in the DPA.