This Firmwater LMS Data Processing Addendum (Addendum) amends the Firmwater Master Subscription Agreement (the “Agreement”) by and between you (the “Client”) and Firmwater Inc., an Ontario corporation with offices at 20 Maud Street, Suite 405, Toronto, ON, M5V 2M5.
1. Definitions
(a) “Data Protection Legislation” means European Union Regulation 2016/679 (the “General Data Protection Regulation”) or California Civil Code Section 1798.100-1798.199 (the “California Consumer Privacy Act of 2018”), as applicable, and any legislation and/or regulation implementing or made pursuant to it, or which amends or replaces any of it;
(b) “Data Processor”, “Data Subject”, “Processor”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with the General Data Protection Regulation;
(c) “Service Provider” shall be interpreted in accordance with the California Consumer Privacy Act of 2018;
(d) “Personal Data” as used in this Addendum means information that relates to, or could reasonably be linked with, to an identifiable or identified Data Subject who logs into your LMS (a “User”), which Firmwater processes as a Data Processor or Service Provider in the course of providing you with the Services.
(e) “Data Subject Request” as used in this Addendum means a request for access, erasure, rectification, or portability of your User’s Personal Data; and
(f) All other capitalized terms in this Addendum shall have the same definition as in the Agreement.
2. Data Protection
2.1 All personal data collected by the Firmwater LMS is processed at Firmwater’s data centre located at the Microsoft Azure Central Canada data centre in Toronto, ON. Off-site backups are maintained at another Microsoft Azure data centre located in Eastern Canada.
2.2 When Firmwater processes Personal Data in the course of providing the Services, Firmwater will:
2.2.1 Process the Personal Data as a Data Processor and/or Service Provider, only for the purpose of providing the Services in accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the Services), and as may subsequently be agreed to by you. If Firmwater is required by law to process the Personal Data for any other purpose, Firmwater will provide you with prior notice of this requirement, unless Firmwater is prohibited by law from providing such notice;
2.2.2 notify you if, in Firmwater’s opinion, your instruction for the processing of Personal Data infringes applicable Data Protection Legislation;
2.2.3 notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to Firmwater’s Processing of the Personal Data;
2.2.4 implement reasonable technical and organizational measures enabling you to execute Data Subject Requests that you are obligated to fulfil;
2.2.5 implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected;
2.2.6 upon request, provide reasonable information to help the Client complete the Clientís data protection impact assessments.
2.2.7 provide you, upon request, with up-to-date attestations, reports or extracts thereof where available from a source charged with auditing Firmwaterís data protection practices (e.g. external auditors, internal audit, data protection auditors), or suitable certifications, to enable you to assess compliance with the terms of this Addendum;
2.2.8 notify you without undue delay upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
2.2.9 ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the Client Personal Data; and
2.2.10 upon termination of the Agreement, Firmwater will promptly initiate its purge process to delete or anonymize the Personal Data. If you request a copy of such Personal Data within 60 days of termination, Firmwater will provide you with a copy of such Personal Data.
2.3 In the course of providing the Services, you acknowledge and agree that Firmwater may use Subprocessors to Process the Personal Data. Firmwater’s use of any specific Subprocessor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between Firmwater and Subprocessor that requires comparable protections to this Data Processing Addendum.
3. Miscellaneous
3.1 In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. You acknowledge and agree that Firmwater may amend this Addendum from time to time by posting the relevant amended and restated Addendum on Firmwater’s website, available at https://www.firmwater.com/dpa and such amendments to the Addendum are effective as of the date of posting. Your continued use of the Services after the amended Addendum is posted to Firmwater’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, do not continue to use the Service.
3.2 Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.
3.3 The terms of this Addendum shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with this Addendum.
Last edited: February 28th, 2018