Data Processing Agreement

Rights and responsibilities for the processing and security of customer data.

Last updated: August 6, 2020

This Data Processing Agreement (“Agreement”) is entered into by and between:

  1. Bugsnag Inc., a Delaware corporation with offices at, 110 Sutter Street, San Francisco, CA 94104 (“Supplier”), and

  2. the entity you represent (“Company”)

Introduction

A. Company is a controller of certain personal data (as described in Appendix 1) and wishes to appoint Supplier as a processor to process this personal data on its behalf in connection with Supplier’s performance of a master services agreement between the parties for Company’s use of Supplier’s offering(s) (the “Master Services Agreement”). The Effective Date of this Agreement is the Effective Date of the Master Services Agreement.

B. The parties have entered into this Agreement to ensure that Supplier conducts such data processing in accordance with Company’s instructions and Applicable Data Protection Law requirements, and with full respect for the fundamental data protection rights of the data subjects whose personal data will be processed.

1. Definitions and interpretation

1.1. Definitions: In this Agreement, the following terms shall have the following meanings:

a) “Applicable Data Protection Law" shall mean all applicable international, national, federal, state, provincial, and local laws, rules, regulations, directives, and governmental requirements currently in effect, or as they become effective, relating in any way to the privacy, confidentiality, or security of the Processing of Data (defined below), including but not limited to the General Data Protection Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”), the e-Privacy Directive 2002/58/EC, the e­Privacy Regulation 2017/003 (once it takes effect), the California Consumer Privacy Act of 2018, Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code (“CCPA”) and any equivalent or similar laws, rules, regulations, directives, and governmental requirements in applicable jurisdictions, and any laws implementing, replacing or supplementing any of them, as amended, consolidated, re-enacted or replaced from time to time.

b) “controller”, “processor”, “data subject”, “personal data” and “processing” (and “process”) shall have the meanings given in Applicable Data Protection Law.

c) “International Data Transfer” means any transfer of Company’s Personal Data from the EEA, Switzerland or the United Kingdom to an international organization or to a country outside of the EEA, Switzerland and the United Kingdom;

d) “Master Services Agreement” shall have the meaning given in paragraph A of the Introduction to this Agreement.

e) “Standard Contractual Clauses” means the clauses annexed to EU Commission Decision 2010/87/EU 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 of the European Parliament and of the Council (OJ L 39, 12.2.2010, p. 5-18).

1.2. Interpretation: Capitalized terms used but not defined in this Agreement shall have the meanings given in the Master Services Agreement.

2. Data Protection

2.1. Relationship of the parties: Company (the controller) appoints Supplier as a processor to process the personal data described in Appendix 1 that is the subject of the Master Services Agreement (the “Data”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law.

2.2. Purpose limitation: Supplier shall process the Data as a processor only for the purposes described Appendix 1 as necessary to perform its obligations under the Master Services Agreement and strictly in accordance with the documented instructions of Company (the “Permitted Purpose”), except where otherwise required by any EU (or any EU Member State) law applicable to Supplier. In no event shall Supplier process the Data for its own purposes or those of any third party.

2.3. Confidentiality of processing: Supplier shall ensure that any person that it authorises to process the Data (including Supplier’s staff, agents and subcontractors) (an “Authorised Person”) shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Data who is not under such a duty of confidentiality. Supplier shall ensure that all Authorised Persons process the Data only as necessary for the Permitted Purpose.

2.4. Security: Supplier shall implement appropriate administrative, physical, technical and organisational measures (“Security Measures”) to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident”). Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. Such measures shall include, as appropriate:

a) the pseudonymisation and encryption of personal data;

b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;

d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

At a minimum, such Security Measures shall include the measures identified in Appendix 2.

2.5. Subprocessing: Supplier shall not subcontract any processing of the Data to a third party subprocessor without the prior written consent of Company. A list of approved subprocessors as of the Effective Date is attached at Exhibit A. Supplier is permitted to disclose Data to each approved subprocessor pursuant to a written agreement that complies with this Agreement and Applicable Data Protection Law. Supplier may revise this list of approved subprocessors from time to time and Supplier will publish its revised subprocessors on its website. If Company refuses to consent to Supplier’s appointment of a third party subprocessor on reasonable grounds relating to the protection of the Data, then either Supplier will not appoint the subprocessor or Company may elect to suspend or terminate this Agreement and the Master Services Agreement without penalty.

2.6. Cooperation and data subjects’ rights: Supplier shall provide all reasonable and timely assistance (including by appropriate technical and organisational measures) to Company (at its own expense) to enable Company to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Supplier, Supplier shall promptly inform Company providing full details of the same.

2.7. Data Protection Impact Assessment: If Supplier believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall promptly inform Company and provide Company with all such reasonable and timely assistance as Company may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.

2.8. Security incidents: Upon becoming aware of a Security Incident, Supplier shall inform Company without undue delay and shall provide all such timely information and cooperation as Company may require in order for Company to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law. Supplier shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep Company informed of all developments in connection with the Security Incident.

2.9. Deletion or return of Data: Upon termination or expiry of this Agreement, Supplier shall (at Company’s election) destroy or return to Company all Data (including all copies of the Data) in its possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Supplier is required by any Applicable Data Protection Law to retain some or all of the Data, in which event Supplier shall isolate and protect the Data from any further processing except to the extent required by such law.

2.10. Audit: Supplier has and will maintain commercially reasonable internal security controls and auditing procedures to audit its controls. On request from Company, Supplier will provide summaries of previous audit results. Once in a rolling 12-month period or following a Security Incident or as otherwise required by Applicable Data Protection Law, Supplier will permit Company or its auditor to conduct an audit of Supplier to verify Supplier’s compliance with this Agreement and Applicable Data Protection Law at Company’s expense (“Audit”). Company and Supplier will agree in advance on reasonable timing, scope, and security controls applicable to the Audit (including restricting access to Supplier’s trade secrets and data belonging to Supplier’s other customers). If the Security Incident is caused by Company then Supplier may charge Company a reasonable fee for the Audit if Supplier documents the basis and calculation of the fee in advance. If Company provides Supplier with notice of a security deficiency (detected through tests or audits performed under this section or otherwise), Supplier will remediate the deficiency as appropriate, within a reasonable timeframe.

2.11. CCPA. The terms “Personal Information”, “Sell”, “Sale”, and “Service Provider” shall have the same meaning as in the CCPA. Supplier is acting as a Service Provider with Company. Supplier shall retain, use and disclose Data solely for the purpose of performing Supplier’s obligations under the Master Services Agreement for Company and for no commercial purpose other than the performance of such obligations. Supplier does not receive any Data as consideration for the services described in the Master Services Agreement. Supplier shall not Sell Data, and shall not retain, use or disclose Data except as necessary for the sole purpose of performing the services described in the Master Services Agreement. Supplier shall refrain from taking any action that would cause any transfers of Data, either to Supplier or from Supplier, to qualify as a Sale of Personal Information.

2.12. Supplier acknowledges that Company may disclose this Agreement to the US Department of Commerce, the Federal Trade Commission, European data protection authority, or any other US or EU judicial or regulatory body upon their request and that any such disclosure shall not be deemed a breach of confidentiality.

3. International Transfers

3.1. Company hereby authorizes Supplier to perform International Data Transfers to any country deemed adequate by the EU Commission; on the basis of appropriate safeguards in accordance with Data Protection Law; or pursuant to the Standard Contractual Clauses referred to in Section 3.2.

3.2. By signing this Agreement, Supplier and Company conclude the Standard Contractual Clauses, which are attached as Schedule 1 and hereby incorporated into this Agreement and completed as follows: the “data exporter” is Company; the “data importer” is Supplier; the governing law in Clause 9 and Clause 11.3 of the Standard Contractual Clauses is the law of the country in which Company is established; Appendix 1 and Appendix 2 to the Standard Contractual Clauses, are Appendix 1 and 2 to this Agreement respectively.

3.3. If Supplier’s compliance with Data Protection Law applicable to International Data Transfers is affected by circumstances outside of Supplier’s control, including if a legal instrument for International Data Transfers is invalidated, amended, or replaced, then Supplier and Company will work together in good faith to reasonably resolve such non-compliance.

4. Miscellaneous

This Agreement shall be governed by, and construed in accordance with, the law of the State of California USA and the courts located in San Francisco County, California shall have exclusive jurisdiction to hear any dispute or other issue arising out of, or in connection with, this Agreement, except where otherwise required by Applicable Data Protection Law.

Schedule 1

Please refer to: Standard Contractual Clauses.

Appendix 1: Data Processing Description

This Appendix 1 forms part of the Agreement and describes the processing that the processor will performed on behalf of the controller.

Controller

The controller is:

the entity identified as “Company” in the Data Processing Agreement

Processor

The processor is:

Bugsnag Inc., a Delaware corporation (“Supplier”)

Data subjects

The personal data to be processed concern the following categories of data subjects:

Data subjects may include end users of the Company’s software, mobile apps, and/or websites. Data subjects also may include engineering team employees and contractors of the Company who login to use the services described in the Master Services Agreement.

Categories of data

The personal data to be processed concern the following categories of data:

Regarding application end users: Crash data, configuration data, browser data, device identification, build data, and any user data, including personally identifiable data, supplied by Company to Supplier.

Regarding employees and contractors of Company: First name, last name, work organization email address (__@company.com).

Special categories of data (if appropriate)

The personal data to be processed concern the following special categories of data:

None.

Processing operations

The personal data will be subject to the following basic processing activities:

The personal data will be stored and processed only in order to provide the services described in the Master Services Agreement for the benefit of Company.

Annex B: Minimum Security Measures

Minimum Security Measures shall include an information security program that safeguards Customer Data and Customer confidential information. Such Security Measures must include:

a) strict logical or physical separation between Company Data and Company confidential information, Supplier’s own data and data of other customers of Supplier;

b) maintaining industry-standard perimeter protection for Supplier’s network and devices connected thereto (“Supplier’s System”);

c) applying, as soon as practicable, patches or other controls to Supplier’s System that effectively address actual or potential code-based security vulnerabilities;

d) employing commercially reasonable efforts to ensure that Supplier’s System remains free of security vulnerabilities, viruses, malware, and other harmful code;

e) employing commercially reasonable efforts to practice safe coding standards and practices which address common application security vulnerabilities;

f) providing appropriate education and training to Supplier employees and workers regarding these Security Measures and ensuring that those individuals are bound by confidentiality obligations;

g) accessing or transferring Company Data or Company confidential information to or from Company systems only in a secure and confidential manner, including complying with specific security provisions and procedures set forth by Company in advance in writing, and

h) limiting Supplier employee/agent/subcontractor access to Supplier’s network, systems, devices and facilities to those with a need for such access, and whose access privileges shall be revoked promptly upon their termination.

Supplier shall provide to Company an individual point of contact for security purposes, and shall update this information from time to time as necessary.

Exhibit A: Approved Subprocessors

Please refer to: Subprocessors