This Data Processing Addendum ("DPA") forms part of Sima Analytics' Terms of Service, Subscription Agreement, Evaluation Agreement, or other agreement governing your use of Sima Analytics' services and solutions (collectively, the "Agreement" and "Service", respectively) that you ("you", "your", "Customer") accept electronically when registering for, accessing, or using the Service, and between Customer and Sima Analytics' applicable entity ("Sima Analytics"). This DPA sets out the terms that apply with regard to the Processing of Personal Data (as defined below) by SIMA ANALYTICS, on behalf of Customer, in the course of providing the Services under the Agreement.
All capitalized terms not defined herein will have the meaning set forth in the Agreement.
1.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. "Authorized User" means any individual authorized or otherwise enabled by Customer to use the Service through Customer's account.
1.3. "CCPA" means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.
1.4. "Controller" means the entity which determines the purposes and means of the Processing of Personal Data.
1.5. "Data Protection Laws" means the GDPR, the CCPA and the UK GDPR (as defined below) as applicable to the Processing of Personal Data. The term "Supervisory Authority" shall have the meanings given to them in the GDPR. The terms "Business", "Business Purpose", "Consumer" and "Service Provider" shall have the same meaning as in the CCPA.
1.6. "Data Subject" means an identified or identifiable natural person to whom a Personal Data relates. "Data Subject Request" means requests to exercise Data Subject rights or Consumer rights (including any complaints regarding the Processing of Personal Data) under Applicable Laws, including, without limitation, EU Data Protection Laws and the CCPA.
1.7. "GDPR" means Regulation (EU) 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).
1.8. "Information Security Policy" means the security documentation applicable to the Service purchased by Customer, as updated from time to time, as made reasonably available to Customer by SIMA ANALYTICS.
1.9. "Personal Data" or "Personal Information" means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with a particular Data Subject or household, which is Processed by SIMA ANALYTICS on behalf of Customer under the Agreement.
1.10. "Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by SIMA ANALYTICS on behalf of Customer under the Agreement.
1.11. "Personnel" means persons authorized by SIMA ANALYTICS to Process Customer's Personal Data.
1.12. "Process" or "Processing" means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, blocking, erasure or destruction.
1.13. "Processor" means the entity which Processes Personal Data on behalf of the Controller.
1.14. "Sensitive Data" means Personal Data that is protected under a special legislation and requires unique treatment, such as "special categories of data", "sensitive data" or other materially similar terms under applicable Data Protection Laws, which may include any of the following: (a) social security number, tax file number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number; (c) financial, credit, genetic, biometric or health information; and/or (d) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person's sex life or sexual orientation, or data relating to criminal convictions and offences.
1.15. "Standard Contractual Clauses" means the standard contractual clauses of Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
1.16. "Sub-Processor" means any third-party service provider engaged by SIMA ANALYTICS that Processes Personal Data under the instruction or supervision of SIMA ANALYTICS.
1.17. "UK GDPR" means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
2.1. Scope and Roles. This DPA applies when Personal Data is Processed by SIMA ANALYTICS strictly on behalf of Customer, as part of SIMA ANALYTICS' provision of the Service. In this context and for the purposes of the GDPR or any similar Data Protection Laws, Customer is the data Controller and SIMA ANALYTICS is the data Processor; and for the purposes of the CCPA (to the extent applicable), Customer is the Business and SIMA ANALYTICS is the Service Provider.
2.2. Subject Matter, Duration, Nature and Purpose of Processing. SIMA ANALYTICS Processes Customer's Personal Data as part of providing Customer with the Service, pursuant to the specifications and for the duration under the Agreement.
2.3. Type of Personal Data and Categories of Data Subjects. Customer determines the identity of the Data Subjects (namely Customer's staff and employees). SIMA ANALYTICS has no control over the identity of the data subjects whose Personal Data is processed on behalf of Customer. The Services requires the following types of data to be processed: (i) workers and staff members information namely: user number, name, waterfront commission number, phone number, supervisor, seniority, hiring agent responsible, vacation history, professional credentials and certifications, availability and time-off requests, information contained in the Employee's employment agreement, IP address, unique identifier; (ii) geolocation data only when the Makara system is used and subject to user's consent; (iii) session recordings and Information sent in logs; and (iv) information instructed to be collected by the Controller.
2.4. Customer's Processing of Personal Data; Instructions. Customer shall, in its use of the Service, only submit or otherwise have Personal Data Processed in accordance with the requirements of Data Protection Laws. SIMA ANALYTICS will only Process Personal Data on behalf of and in accordance with Customer's reasonable instructions. Customer instructs SIMA ANALYTICS to Process Personal Data for the following purposes: (i) Processing related to the Service in accordance with the Agreement; (ii) Processing to comply with other reasonable instructions provided by Customer where such instructions are consistent with the Agreement and applicable law; (iii) rendering Personal Data fully and irrevocably anonymous and non-personal, in accordance with applicable standards recognized by Data Protection Laws and guidance issued thereunder; and (iv) Processing as required under any applicable laws to which SIMA ANALYTICS is subject, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that SIMA ANALYTICS shall inform Customer of the legal requirement before Processing, unless prohibited under such law or requirement. For the avoidance of doubt, Customer's instructions for the Processing of Personal Data shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Without limitation, Customer will provide all necessary notices to relevant Data Subjects, including a description of the Service, and secure all necessary permissions and consents, or other applicable lawful grounds for Processing Personal Data pursuant to this DPA. SIMA ANALYTICS will inform Customer, if in SIMA ANALYTICS's opinion an instruction infringes any provision under any Data Protection Laws and will be under no obligation to follow such instruction, until the matter is resolved in good-faith between the parties.
To the extent that SIMA ANALYTICS cannot comply with a reasonable instruction from Customer, (i) SIMA ANALYTICS shall promptly inform Customer, providing relevant details of the problem, (ii) SIMA ANALYTICS may, without any kind of liability to Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing such data) and/or suspend access to the Customer's account.
2.5. CCPA Standard of Care; No Sale of Personal Information. SIMA ANALYTICS acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that SIMA ANALYTICS provides to Customer under the Agreement. SIMA ANALYTICS shall not have, derive, or exercise any rights or benefits regarding Personal Information Processed on Customer's behalf, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA. SIMA ANALYTICS certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from selling (as such term is defined in the CCPA) any Personal Information Processed hereunder, without Customer's prior written consent, nor taking any action that would cause any transfer of Personal Information to or from SIMA ANALYTICS under the Agreement or this DPA to qualify as "selling" such Personal Information under the CCPA.
2.6. Sensitive Data. The Parties agree that the Service is not intended for the processing of Sensitive Data, and that if Customer wishes to use the Services to process Sensitive Data, it must first obtain SIMA ANALYTICS' explicit prior written consent and enter into any additional agreements as required by SIMA ANALYTICS.
Taking into account the nature of the Processing, SIMA ANALYTICS will reasonably assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer's obligation to respond to requests for exercising the Data Subjects' rights under the GDPR or other Data Protection Laws, to request access, rectification or deletion of Personal Data, to restrict or object to further processing of such data, to receive a portable copy thereof, or to request not to be subject to automated individual decision-making. SIMA ANALYTICS will further reasonably assist Customer, upon Customer's reasonable request, in ensuring compliance with Customer's obligations in connection with the security of Processing, notification of a Personal Data Breach to supervisory authorities and affected Data Subjects, Customer's data protection impact assessments and Customer's prior consultation with supervisory authorities, insofar as it relates to SIMA ANALYTICS's Processing of Personal Data under this DPA, and to the extent Customer does not otherwise have access to the relevant information, and that such information is available to SIMA ANALYTICS. Customer will promptly reimburse SIMA ANALYTICS with costs and expenses incurred by SIMA ANALYTICS in connection with the provision of assistance to Customer under this DPA.
SIMA ANALYTICS shall (i) promptly notify Customer if it receives a Data Subject Request in respect of Personal Data; (ii) provide full cooperation and assistance to Customer in relation to any Data Subject Request; (iii) ensure that it does not respond to Data Subject Requests except on the documented instructions of Customer or as strictly required by Data Protection Laws to which the Processor is subject or solely to acknowledge receipt of the request and refer to the relevant Controller; and (iv) maintain electronic records of Data Subject Requests.
4.1. Limitation of Access. SIMA ANALYTICS will ensure that SIMA ANALYTICS's access to Personal Data is limited to those Personnel who require such access to perform the Agreement.
4.2. Confidentiality. SIMA ANALYTICS will impose appropriate obligations upon its Personnel engaged in the Processing of Personal Data, including relevant obligations regarding confidentiality, data protection, and data security. SIMA ANALYTICS will ensure that its Personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training in their responsibilities, and have executed written confidentiality agreements. SIMA ANALYTICS will reasonably ensure that such confidentiality agreements survive the termination of the employment or engagement of its Personnel.
5.1. SIMA ANALYTICS may engage Sub-Processors to Process Personal Data on behalf of Customer. Customer hereby provides SIMA ANALYTICS with a general authorization to engage the Sub-Processors listed in Schedule 1 (Sub-Processors) hereto. All Sub-Processors have entered into written agreements with SIMA ANALYTICS that bind them by data protection obligations substantially similar to those under this DPA. Where a Sub-Processor fails to fulfil its data protection obligations in connection with the Processing of Personal Data under this DPA, SIMA ANALYTICS will remain fully liable to Customer for the performance of that Sub-Processor's obligations, to the same extent it is liable for its own actions and omissions under the Agreement (taking into account any limitation of liabilities detailed therein).
5.2. SIMA ANALYTICS may engage with a new Sub-Processor ("New Sub-Processor") to Process Personal Data on Customer's behalf. SIMA ANALYTICS shall provide notification of any new Sub-Processor(s), by email or by updating the sub processor's section on its website, before authorizing such new Sub-Processor(s) to Process Personal Data in connection with the provision of the Service. Customer may object to the Processing of Customer's Personal Data by the New Sub-Processor, for reasonable and explained grounds, by providing a written objection to SIMA ANALYTICS within 10 business days following SIMA ANALYTICS's written notice to Customer of the intended engagement with the New Sub-Processor. If Customer timely sends SIMA ANALYTICS a written objection notice, the parties will make a good-faith effort to resolve Customer's objection. In the absence of a resolution, SIMA ANALYTICS will make commercially reasonable efforts to provide Customer with the same level of Service, without using the New Sub-Processor to Process Customer's Personal Data. If SIMA ANALYTICS refuses or cannot accommodate Customer's objection, Customer shall have a right to terminate the Agreement with no liability and with refund for unrendered services, within 10 days from SIMA ANALYTICS's notice. If no such termination was timely notified or no rejection notice (as detailed above) was timely filed, the engagement of the New Sub-Processor shall be deemed accepted by Customer.
6.1. Transfers from the EEA, Switzerland and the United Kingdom to countries that offer adequate level or data protection. Personal Data may be transferred from EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) (collectively, "EEA"), Switzerland and the United Kingdom ("UK") to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the European Union, the Member States or the European Commission, or Switzerland or the UK as relevant ("Adequacy Decisions"), as applicable, without any further safeguard being necessary.
6.2. Transfers to Other Countries. If the Processing of Personal Data by SIMA ANALYTICS includes transfers (either directly or via onward transfer) from the EEA, Switzerland (collectively "EEA Transfer") and/or the UK ("UK Transfer") to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative recognized compliance mechanism for the lawful transfer of personal data (as defined in the GDPR) outside the EEA, Switzerland or the UK, as applicable, then (i) the terms set forth in Part 1 of Schedule 2 (EEA Cross Border Transfers) shall apply to any such EEA Transfer; (ii) the terms set forth in Part 2 of Schedule 2 (UK Cross Border Transfers) shall apply to any such UK Transfer; and (iii) the terms set forth in Part 3 of Schedule 2 (Additional Safeguards) shall apply to such an EEA Transfer and a UK Transfer.
7.1. Controls for the Protection of Personal Data. SIMA ANALYTICS represents and warrants that it has implemented appropriate technical and organizational measures for protection of Personal Data Processed hereunder (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data, confidentiality, and integrity of Personal Data, including those measures set forth in the Information Security Policy). Upon Customer's request, Processor shall assist Customer, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR.
7.2. Records of Processing. SIMA ANALYTICS shall keep records of its Processing activities performed on behalf of Customer, which shall include at least: (i) The details of the Processor as Personal Data Processor, any representatives, Sub-Processors, data protection officers and Personnel having access to Personal Data; (ii) The categories of Processing activities performed; (iii) Information regarding Cross-Border Data Transfers, if any; and (iv) A description of the technical and organizational security measures implemented in respect of the Processed Personal Data.
8.1. SIMA ANALYTICS will maintain security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, will notify Customer without undue delay after becoming aware of a Personal Data Breach affecting Customer's Personal Data being Processed hereunder by SIMA ANALYTICS or any of SIMA ANALYTICS's Sub-Processors. SIMA ANALYTICS's notice will at least: (a) describe the nature of the Personal Data Breach including where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) communicate the name and contact details of a designated officer on SIMA ANALYTICS's data protection team, which will be available to provide any additionally available information about the Personal Data Breach; (c) describe the likely consequences of the Personal Data Breach; (d) describe the measures taken or proposed to be taken by SIMA ANALYTICS to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.
9.1. SIMA ANALYTICS will make available to Customer, pursuant to Customer's reasonable written request, all information necessary for Customer to demonstrate compliance with the obligations laid down under Article 28 to the GDPR in relation to the Processing of Personal Data under this DPA by SIMA ANALYTICS and its Sub-Processors. Such information shall only be used by Customer to assess compliance with the aforesaid obligations, and may not be disclosed to any third party without SIMA ANALYTICS' prior written approval. As soon as the purpose of such information is met, Customer will permanently dispose of all copies thereof.
9.2. SIMA ANALYTICS will allow for and contribute to audits, including inspections, conducted by Customer or a reputable auditor mandated by Customer (who are each not a competitor of SIMA ANALYTICS or affiliated with such a competitor), to assess SIMA ANALYTICS's compliance with its obligations under this DPA. SIMA ANALYTICS may satisfy the audit obligation under this section by providing Customer with attestations, certifications and summaries of audit reports conducted by accredited third party auditors. Audits by Customer are subject to the following terms: (i) the audit will be pre-scheduled in writing with SIMA ANALYTICS, at least 45 days in advance and will be performed not more than once a year (except for an audit following a Personal Data Breach); (ii) the auditor will execute a non-disclosure and non-competition undertaking toward SIMA ANALYTICS; (iii) the auditor will not have access to data not processed under this Agreement; (iv) Customer will make sure that the audit will not interfere with or damage SIMA ANALYTICS's business activities and information and network systems; (v) Customer will bear all costs and assume responsibility and liability for the audit; (vi) no audit shall include access to SIMA ANALYTICS' network and/or networks that contain SIMA ANALYTICS' customers' data, (vii) Customer will receive only the auditor's report, without any SIMA ANALYTICS 'raw data' materials, will keep the audit results in strict confidentiality and will use them solely for the specific purposes of the audit under this section; (viii) at the request of SIMA ANALYTICS, Customer will provide it with a copy of the auditor's report; and (ix) as soon as the purpose of the audit is completed, Customer will permanently dispose of the audit report.
Upon termination or expiration of the Agreement, SIMA ANALYTICS shall delete or to the fullest extent technically feasible return all data processed under this Agreement, in its possession or control. SIMA ANALYTICS may retain some or all of the data to the extent required by applicable law or for legitimate business purposes, including retention on archived or back-up systems (e.g., in the form of audit logs which may be retained for up to 24 months from acquisition), which SIMA ANALYTICS shall securely isolate and protect from any further Processing, except to the extent required by applicable law. Customer acknowledges that the deletion process may take up to 60 days to be completed.
The parties agree to resolve any dispute related to this DPA through good-faith discussions prior to commencing legal proceedings. If the parties are unable to resolve the dispute through good-faith discussions within thirty (30) days, either party may pursue legal remedies in accordance with the Governing Law and Jurisdiction section of the Agreement. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
This DPA will commence and become legally binding on the earlier of: (i) your acceptance of the Agreement to which it relates, or (ii) the initiation of SIMA ANALYTICS's Processing of Personal Data on your behalf; and will continue until the Agreement expires or terminates.
Each party may by at least 45 days' prior written notice to the other party, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under, any Data Protection Laws, to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of that Data Protection Law. Pursuant to such notice: (a) SIMA ANALYTICS shall make commercially reasonable efforts to accommodate such modification requested by Customer or that SIMA ANALYTICS believes is necessary; and (b) Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by SIMA ANALYTICS to protect SIMA ANALYTICS against additional risks, or to indemnify and compensate SIMA ANALYTICS for any further steps and costs associated with the variations made herein at Customer's request. The parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer's or SIMA ANALYTICS's notice as soon as is reasonably practicable. In the event that the parties are unable to reach such an agreement within 30 days of such notice, then Customer or SIMA ANALYTICS may, by written notice to the other party, with immediate effect, terminate the Agreement to the extent that it relates to the Service which are affected by the proposed variations (or lack thereof), with no refund. Customer will have no further claims against SIMA ANALYTICS (including, without limitation, requesting refunds) pursuant to the termination of the Agreement and the DPA as described in this Section.
14.1. In the event of any conflict or inconsistency between certain provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement solely with respect to the Processing of Personal Data.
14.2. In the event of any conflict between certain provisions of this DPA and any of its Schedules and the Standard Contractual Clauses (if applicable), the Standard Contractual Clauses shall prevail.
This Part 2 is effective from the same date as the Standard Contractual Clauses. It is intended to provide appropriate safeguards for the purposes of transfers of Personal Data to a third country or an international organization in reliance on Articles 46 of the UK GDPR and with respect to data transfers from controllers to processors.
| UK Data Protection Laws | All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
| UK GDPR | The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018. |
| UK | The United Kingdom of Great Britain and Northern Ireland |
This Part 2 shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that it fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR. This Part 2 incorporates the Standard Contractual Clauses which are deemed to be amended to the extent necessary so they operate for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter's processing when making that transfer. Clause 17 is replaced to state "These Clauses are governed by the laws of England and Wales". Any dispute arising from these Clauses shall be resolved by the courts of England and Wales.
In the event of an EEA Transfer or a UK Transfer, the Parties agree to supplement these with the following safeguards and representations, where appropriate:
Once in every 12-month period, the Processor will inform the Controller, at the Controller's written request, to the extent permitted by applicable law, of the types of binding legal demands for Personal Data it has received and solely to the extent such demands have been complied with, including national security orders and directives, which shall encompass any process issued under section 702 of FISA.