Data Privacy

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DATA PROCESSING AGREEMENT (“DPA”)

INTRODUCTION TO THIS AGREEMENT

Processing personal data in a secure, fair and transparent way is extremely important to Raintank Inc., d/b/a Grafana Labs (“Grafana” or “we”).  As part of this effort, we process personal data in accordance with the EU’s General Data Protection Regulation (defined below), and EU/US Privacy Shield principles, the laws of the United States governing the handling of various types of data.

We are providing these terms to govern Grafana and your handling of personal data (as defined below), which amends and supplements your agreement with Grafana (“Contract”). If you do not agree to this DPA, you must discontinue use of Grafana’s services.

You and Grafana acknowledge and agree that:

  1. Definitions
  1. “You” or “Customer” refers to the company or organization that signs up to use Grafana’s software products and any related cloud hosting services.
  2. Applicable Privacy Law(s)” means all worldwide data protection and privacy laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law.
  3. Authorized Persons” means any person who processes Personal Data on Grafana's behalf, including Grafana's employees, officers, partners, principals, contractors and Subcontractors.
  4. EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data and all applicable member state implementations thereof; and (ii) on and after 25 May 2018, 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 (General Data Protection Regulation) (“GDPR”) and all applicable member state implementations thereof.
  5. EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom, and Switzerland.
  6. Model Clauses” means the standard contractual clauses for Processors as approved by the European Commission set forth in Annex A and as they may be subsequently updated by the European Commission.
  7. Personal Data” means information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, genetic, mental, economic, cultural or social identity.  For the avoidance of doubt, Personal Data includes personally identifiable information.
  8. Security Incident” means any unauthorized or unlawful breach of security leading to, or reasonably believed to have led to, the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure or access to, Personal Data.
  9. Subcontractor” means any third party (including any Grafana affiliates) engaged directly by Grafana to process any Personal Data relating to this DPA and/or the Contracts.  The term “Subcontractor” shall also include any third party appointed by a Subcontractor to process any Personal Data relating to this DPA and/or the Contracts.
  10. The terms “Controller,” “Data Subject,” “Processor,” and “processing,” have the meanings given to them in Applicable Privacy Laws.  If and to the extent that Applicable Privacy Laws do not define such terms, then the definitions given in EU Data Protection Law will apply.  
  1. Roles and Scope of Processing
  1. Each party agrees that Personal Data shall be treated as confidential information under this DPA.  In addition, each party shall at all times comply with Applicable Privacy Laws relating to data protection in the relevant jurisdiction with respect to each other’s Personal Data.
  2. Customer represents and warrants that it has all necessary rights to provide Grafana any Personal Data for Processing in connection with the provision of the Grafana services.  To the extent required by Applicable Privacy Law, Customer is responsible for ensuring that any Data Subject consents that may be necessary for Processing are obtained and for ensuring that a record of such consents is maintained, including any consent to Process Personal Data that is obtained from third parties. Should such a consent be revoked, Customer is responsible for communicating such revocation to Grafana, and Grafana shall implement any instruction from Customer regarding deletion of Personal Data.
  3. Personal Data shall remain the property of the disclosing party. Grafana acknowledges that Customer is the Controller and maintains control over its Personal Data.
  4. Grafana shall process Personal Data under the Contract(s) only as a Processor acting on behalf of Customer (whether the Customer is a Controller or itself a Processor on behalf of third-party Controllers).  
  5. Grafana will at all times: (i) process the Personal Data only for the purpose of providing the Services to Customer under the Contract(s) and in accordance with Customer’s documented instructions; and (ii) not process the Personal Data for its own purposes or those of any third party.
  1. Sub-processing
  1. The parties acknowledge that Grafana may engage a Subcontractor in connection with the Contract. For any Subcontractor which Grafana engages, Grafana will enter into a written agreement containing data protection obligations no less protective than those in this DPA and as required to protect Data Subject’s Personal Data to the standard required by Applicable Privacy Laws.  
  2. Grafana shall make available to customers the current list of Subcontractors upon request.
  1. Cooperation
  1. Grafana shall reasonably cooperate with Customer to enable Customer (or its third party Controller) to respond to any requests, complaints or other communications from data subjects and governmental, regulatory or judicial bodies relating to the processing of Personal Data under the Contract(s), including requests from Data Subjects seeking to exercise their rights under Applicable Privacy Laws.  In the event that any such request, complaint or communication is made directly to Grafana, Grafana shall promptly pass this onto Customer and shall not respond to such communication without Customer’s express authorization.
  2. If Grafana receives a subpoena, court order, warrant or other legal demand from a third party (including law enforcement or other governmental, regulatory or judicial authorities) seeking the disclosure of Personal Data, Grafana shall not disclose any information but shall immediately notify Customer in writing of such request, and reasonably cooperate with Customer if it wishes to limit, challenge or protect against such disclosure, to the extent permitted by Applicable Privacy Laws.
  3. To the extent Grafana is required under Applicable Privacy Laws, Grafana will assist Customer (or its third party Controller) to conduct a data protection impact assessment and, where legally required, consult with applicable data protection authorities in respect of any proposed processing activity that present a high risk to data subjects.
  1. Data Access & Security Measures
  1. Grafana shall ensure that any Authorized Person is subject to a duty of confidentiality (whether a contractual or statutory duty) and that they process the Personal Data only for the purpose of delivering the Services under the Contract(s) to the Customer.  
  2. Grafana will implement and maintain reasonable technical, physical and organizational security measures to protect from Security Incidents and to preserve the security, integrity and confidentiality of Personal Data.
  3. Grafana shall not transfer any Personal Data outside of the US or to other locations not deemed to be “adequate” under EU Law without providing reasonable notice to the Customer.
  1. Security Incidents
  1. In the event of a Security Incident, Grafana shall promptly (and in no event later than 72 hours of becoming aware of such Security Incident) inform Customer and provide written details of the Security Incident, including the type of data affected and the identity of affected person(s) as soon as such information becomes known or available to Grafana.  
  2. Furthermore, in the event of a Security Incident, Grafana shall:
  1. provide timely information and cooperation as Customer may require to fulfil Customer’s data breach reporting obligations under Applicable Privacy Laws; and
  2. take such measures and actions as are appropriate to remedy or mitigate the effects of the Security Incident and shall keep the Customer up-to-date about all developments in connection with the Security Incident.
  1. The content and provision of any notification, public/regulatory communication or press release concerning the Security Incident shall be solely at Customer’s discretion, except as otherwise required by Applicable Privacy Laws.
  1. Security Reports & Inspections
  1. Upon request, Grafana shall provide copies of relevant external certifications, audit report summaries and/or other documentation reasonably required by Customer to verify Grafana's compliance with this DPA.
  2. While it is the parties’ intention ordinarily to rely on Grafana's obligations set forth in Section 7.1 to verify Grafana's compliance with this DPA, Customer (or its appointed representatives) may carry out an inspection of the Grafana's operations and facilities during normal business hours and subject to reasonable prior notice where Customer considers it necessary or appropriate (for example, without limitation, where Customer has concerns about Grafana's data protection compliance, following a Security Incident or following instruction from a data protection authority, supervisory authority or the relevant third party Controller).
  1. International Transfers
  1. Grafana shall not process or transfer any Personal Data in or to a territory other than the territory in which the Personal Data was first collected (nor permit the Personal Data to be so processed or transferred) unless: (i) it has first obtained Customer’s prior written consent; and (ii) it takes all such measures as are necessary to ensure such processing or transfer is in compliance with Applicable Privacy Laws (including such measures as may be communicated by Customer to Grafana).
  2. If Grafana processes Personal Data under this DPA that originates from the EEA, any such consent shall be conditional on the Grafana entering into and complying with (and requiring that any Subcontractor comply with) the Model Clauses, set forth in Annex A.  Purely for the purposes of the descriptions in the Model Clauses and only as between Grafana and Customer, Grafana agrees that it is a “data importer” and Customer is the “data exporter” under the Model Clauses.  
  3. It is not the intention of either party, nor the effect of this DPA, to contradict or restrict any of the provisions set forth in the Model Clauses.  Accordingly, if and to the extent the Model Clauses conflict with any provision of this DPA, the Model Clauses shall prevail.  In no event does this DPA restrict or limit the rights of any data subject or of any competent supervisory authority. Grafana acknowledges that Customer may disclose this DPA and any relevant privacy provisions to any data protection authority or supervisory authority.
  1. Deletion & Return  
  1. Upon Customer’s request, or upon termination or expiration of this DPA for whatever reason, you will ensure the deletion of all Personal Data within Grafana’s cloud hosting services.  To the extent that Grafana is required by Applicable Privacy Laws to retain the Personal Data you provided to Grafana when you either signed up for Grafana’s products or services or utilized its cloud hosting services, Grafana shall isolate and protect that Personal Data from any further processing except to the extent required by such law.
  1. General
  1. Except for the changes made by this DPA, the Contract(s) remain unchanged and in full force and effect. If there is any conflict between any provision in this DPA and any provision in the Contract(s), this DPA controls and takes precedence. With effect from the effective date, this DPA is part of, and incorporated into the Contract(s).
  2. This DPA shall come into effect on the Effective Date and shall continue until it is changed or terminated in accordance with the Contract.
  3. Termination or expiration of this DPA shall not discharge the parties’ confidentiality obligations.  
  4. Each party indemnifies the other and holds them harmless against any loss, damages and reasonable expenses incurred by the indemnified party based on third-party claims, actions, inquiries, demands or proceedings arising out of or related to a breach of this DPA.
  5. This DPA may not be modified except by a subsequent written instrument signed by both parties.
  6. If any part of this DPA is held unenforceable, the validity of all remaining parts will not be affected.

Accepted and agreed by the parties’ duly authorized representatives as of the Effective Date listed below.

Clause 1

Definitions

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 processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable may be specified in a separate document which, if utilized by the parties, forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1.        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.

2.        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 has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter 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.

3.        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 have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter 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.

4.        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.

Clause 4

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 organisational security measures;

(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 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).

Clause 5

Obligations of the data importer[1]

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 reasonable technical and organisational 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 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;

(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 transferred;

(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;

(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;

(j)        to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1.        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.

2.        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 in 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 of by operation of law, in which case the data subject can enforce its rights against such entity.

The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3.        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 exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by 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.

Clause 7

Mediation and jurisdiction

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.

2.        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.

Clause 8

Cooperation with supervisory authorities

1.        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.

2.        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.

3.        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).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely………………………………………………………………………….

Clause 10

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.

Clause 11

Subprocessing

1.        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 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.

2.        The prior written contract between the data importer and the subprocessor shall also 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 have 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.

3.        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, namely …………………………………… …………………………………………………………………………………………………………………………………………………………………………

4.        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.

Clause 12

Obligation after the termination of personal data processing services

1.        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 upon 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.

2.        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.


[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.