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This Data Processing Agreement (“DPA”) forms part of the LearnUpon Subscription Agreement (the “Principal Agreement”) entered into by and between LearnUpon and You and is incorporated by reference therein. The services or items provided under the Principal Agreement (“Services”) may include the processing, collection, or storage of personal data on Your behalf. The terms “personal data”, “controller”, “processor”, “data subject”, “personal data breach” and “processing” shall have the same meaning as in the Data Protection Laws (defined below).
Where LearnUpon is engaged as a sub-processor for and on behalf of You where You are acting as a processor, this DPA shall be read as though any reference to controller means processor and any reference to processor means sub-processor.
1. Definitions.
In this DPA, capitalized terms not otherwise defined elsewhere or in the Principal Agreement shall have the following meanings:
“California Consumer Privacy Act of 2018” or “CCPA/CPRA” shall mean the California Civil Code Sec. 1798.100 et seq (also known as the California Consumer Privacy Act of 2018) and its implementing regulations, as amended effective January 1, 2023, by the California Privacy Rights Act and its implementing regulations of 2020 (Cal. Civ Code §§ 1798.100 to 1798.199.100), together with the CCPA Regulations (Cal. Code Regs. Tit. 11, §§7000 to 7102) which may be amended from time-to-time.
"Consumer", "Business", "Sell" and "Service Provider" will have the meanings given to them in the CCPA/CPRA.
“Data Protection Laws” means to the extent applicable, (i) 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”) (“EU GDPR”); (ii) the Data Protection Act 2018 and EU GDPR as saved into United Kingdom law by virtue of Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (“UK GDPR”); (iii) the EU ePrivacy Directive (Directive 2002/58/ED); (iv) the Swiss Federal Act on Data Protection (“FADP”); (v) the CCPA/CPRA; (vi) Other State Laws (defined below) and (vii) any other data protection legislation applicable to the respective party in its role in processing of Customer Personal Data under the Principal Agreement.
"Other State Laws” may include the Colorado Privacy Act effective July 1, 2023 (as amended, restated or supplemented from time-to-time, the “CPA”); the Connecticut Data Privacy Act effective July 1, 2023 (as amended, restated or supplemented from time-to time, the “CTDPA”); the Iowa Consumer Data Protection Act effective January 1, 2023 (as amended, restated or supplemented from time-to-time, the “ICDPA“); the Utah Consumer Privacy Act effective December 31, 2023 (as amended, restated or supplemented from Virginia Consumer Data Protection Act effective January 1, 2023 (as amended, restated or supplemented from time-to-time, the “VCDPA”).
“Restricted Transfer” means a transfer of Personal Data from Customer to Supplier, where such transfer would constitute a transfer to a third country that would be prohibited by European Data Protection Laws in the absence of appropriate safeguards.
"Security Breach" means any act or omission that compromises the security, confidentiality, or integrity of personal information or the physical, technical, administrative, or organizational safeguards put in place to protect it under the CCPA/CPRA and Other State Laws.
“Standard Contractual Clauses” means the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021 currently found at https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data protection/standard-contractual-clauses scc/standard-contractual-clauses-international transfers_en, as may be amended, superseded or replaced.
“Supervisory Authority” means, as applicable, a Supervisory Authority as defined under European Data Protection Laws or a relevant regulatory authority with regard to other Data Protection Laws.
2. Processing of Personal Data.
The Parties shall at all times comply with applicable Data Protection Laws and may take such actions as they, in their sole discretion, deem necessary to comply with Data Protection Laws. The parties shall reasonably cooperate in good faith to make any changes to this Addendum or their actions hereunder which are necessary in connection with such compliance.
The Parties acknowledge that for the purposes of the Data Protection Laws, You are either the “data controller” or “processor” with respect to Customer Personal Data, and LearnUpon is the “data processor”. Annex 1 sets out the scope, nature and purpose of processing by LearnUpon, the duration of the processing, the types of personal data and categories of data subject and Annex 2 sets out the minimum-security measures that LearnUpon shall adhere to when processing personal data on Your behalf.
LearnUpon shall, as a data processor and in relation to personal data that it processes on behalf of You comply with its obligations set out in this clause 3. You shall comply with Your obligations as set out in this clause 2:
LearnUpon shall act only in accordance with this DPA, the Principal Agreement and with Your instructions in relation to the processing of personal data (including instructions in relation to the return or destruction of personal data). In the event that a legal requirement prevents LearnUpon from complying with such instructions or requires LearnUpon to disclose the personal data to a third party LearnUpon shall, unless such legal requirement prohibits it from doing so, inform You of the relevant legal requirement before carrying out the relevant processing activities.
2.1. Processing of Personal Data under the CCPA/CPRA LearnUpon shall, as a data processor and in relation to personal data that it processes on Your behalf, agrees as follows: Where the CCPA/CPRA applies, the terms “business,” “combine,” “commercial purpose,” “consumer,” “contractor,” “personal information,” “processing,” “sell,” “share,” and “service provider” shall have the meanings given to such terms in CCPA/CPRA; and where the Other State Laws apply, the terms “consumer,” “controller,” “processing,” “processor,” “sell” (and its corresponding “sale”) and “targeted advertising” shall have the meanings given to such terms in the applicable Other State Laws, and the term “personal information” shall have the same meaning as the term “personal data” as such term is defined in the applicable Other State Laws. LearnUpon shall comply with all requirements of the CCPA/CPRA that are applicable to service providers and contractors and all requirements of the applicable Other State Law that are applicable to processors.
Without limiting the foregoing, during the term of the Principal Agreement and thereafter, LearnUpon shall: (i) not retain, use, share, combine, or disclose the personal information for any purpose (including any commercial purpose) other than for the specific purpose of performing the Services contemplated by the Principal Agreement; (ii) not retain, use, share, combine, or disclose the personal information outside of the direct business relationship between LearnUpon and the Customer; (iii) not sell or share the personal information to any third parties; (iv) not process the personal information for the purposes of targeted advertising; (v) promptly (and in any case within ten days of receipt) comply with the Customer’s written instructions associated with responding to any consumer’s request to exercise the consumer’s rights under the CCPA/CPRA or the applicable Other State Law; and (vi) implement, maintain and adhere to a written data security program (as set out in Annex 2) that features reasonable security policies, procedures and practices appropriate to the nature of the information and consistent with industry best practices, in order to protect the personal information from unauthorized access, use, modification, exfiltration, theft or disclosure.
2.2 Relationship of the Parties Under the CCPA and Other State Laws. The parties acknowledge and agree that the Customer is a business and LearnUpon is a service provider or contractor to the Customer under the CCPA/CPRA, and Customer is a controller and LearnUpon is a processor under the Other State Laws. LearnUpon will only process, retain, use, or disclose the Personal Information to the extent, and in such a manner, as is necessary for the business purpose in accordance with the Customer’s written instructions.
3. Confidentiality and Security.
LearnUpon shall take reasonable steps to ensure the reliability of staff having access to the personal data and that all staff to whom it discloses personal data are made aware that the personal data is confidential information of Yours and subject to this DPA and shall ensure that the staff have committed themselves to confidentiality.
LearnUpon shall have and maintain technical and organisational measures appropriate to the risks that are presented by the processing, in accordance with Data Protection Laws, to prevent unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. LearnUpon shall maintain such security measures for as long as it is processing the personal data on Your behalf; Customer is responsible for implementing its own appropriate measures to ensure a level of security appropriate to the Customer Personal Data.
LearnUpon shall, at Your expense, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject rights laid down in the Data Protection Laws.
LearnUpon shall notify You within 72 hours if it discovers any Security Breach involving the personal data and shall promptly investigate the cause and effects of the Security Breach. Each party will co operate with the other, to the extent reasonably requested, in relation to any notifications to Supervisory Authorities or to data subjects which are required following such Security Breach.
4. Assistance to Customer.
LearnUpon shall promptly provide You with reasonable cooperation and assistance in respect of the Security Breach and all information in LearnUpon's possession concerning the Security Breach.
LearnUpon shall notify You if it receives a request from a data subject regarding the personal data. Upon Your reasonable request and at Your expense, Supplier shall provide You with assistance as necessary to Your fulfillment of its obligations under applicable Data Protection Laws to respond to data subject requests relating to the personal data.
LearnUpon shall, at Your expense, provide reasonable assistance to You in ensuring compliance with Your obligations set out under Articles 32–36 of the GDPR to:
Ensure the security of processing;
Notify the relevant Supervisory Authority, and any data subject(s), where relevant, of any Security Breach;
Carry out any data protection impact assessments (each a "DPIA") of the impact of the processing on the protection of personal data; and
Consult the relevant Supervisory Authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by You to mitigate the risk.
4.1 Assistance to Customer under CCPA/CPRA or Other State Laws. LearnUpon shall reasonably cooperate with the Customer in responding to any consumer’s request to exercise the consumer’s rights under the CCPA/CPRA and/or Other State Laws, as applicable. In the event that any consumer makes a request directly to LearnUpon with respect to exercising its rights under the CCPA/CPRA and/or an Other State Law, LearnUpon shall notify the Customer without unreasonable delay, consistent with: (i) the legitimate needs of law enforcement, and (ii) any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system, and forward a copy of the consumer’s request to the Customer, unless legally prohibited from doing so. LearnUpon shall not respond directly to any such consumer request without the Customer’s prior authorization, except and only to the extent LearnUpon is legally compelled to do so. If LearnUpon is legally compelled to respond to such a consumer request, then LearnUpon shall provide the Customer with a copy of LearnUpon’s response.
5. Customer’s Responsibilities under CCPA/CPRA or Other State Laws.
The Customer retains control of the Personal Information and remains responsible for its compliance obligations under the applicable Privacy and Data Protection Requirements, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to LearnUpon.
6. Deletion or Return of Personal Data.
LearnUpon shall, at Your choice, destroy or return all personal data to You at the end of the provision of services relating to processing and, within a reasonable amount of time, delete existing copies unless applicable law requires the storage of the personal data.
7. Audits.
LearnUpon shall make available to You, at Your expense, all information necessary to demonstrate compliance with the obligations laid down in Data Protection Laws and this DPA. In addition, LearnUpon shall allow for and contribute to audits. Such audits shall be at Your expense and may include inspections conducted by You or another auditor authorised by You. Such inspections and/or audits shall be agreed in advance with LearnUpon and carried out on reasonable notice, at reasonable intervals and during normal business hours of LearnUpon and upon production of appropriate identity evidencing authority. You undertake to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of LearnUpon’s business and/or damage or injury to LearnUpon’s equipment, premises, personnel.
8. Restricted Transfers.
You acknowledge and accept that the provision of the LearnUpon Services under the Principal Agreement may require the processing of personal data in countries outside the European Economic Area (“EEA”) or the UK from time to time.
If, in the performance of this DPA and/or the Principal Agreement, LearnUpon transfers any personal data to You or a sub-processor outside of the EEA or the UK to which no specifically approved safeguard(s) for data transfers (as recognized under Data Protection Laws) and/or a European Commission finding of adequacy applies, the Standard Contractual Clauses (Processor-Controller) will apply with respect to all such transfers to You outside of the EEA and the UK Standard Contractual Clauses will apply for Restricted Transfers outside the UK and the Standard Contractual Clauses (Processor-Processor) shall apply to such transfers to sub-processors outside the EEA and the UK Standard Contractual Clauses will apply for Restricted Transfers outside the UK.
9. Subprocessing.
LearnUpon uses sub-processors for the purposes of providing access to, ongoing support and development of the Platform. LearnUpon maintains a list of all the sub-processors it uses at the following URL: https://www.learnupon.com/subprocessors/, which may be updated from time to time upon thirty days’ notice to You provided by email. You provide your general consent to the use by LearnUpon of these sub-processors. If You have a reasonable objection to any new or replacement sub-processor, You shall notify LearnUpon of such objections in writing within ten (10) days of the notification and the Parties will seek to resolve the matter in good faith. If LearnUpon is able to provide the Services to You in accordance with the Principal Agreement without using the sub-processor and decides in its discretion to do so, then You will have no further rights under this clause in respect of the proposed use of the sub-processor. If LearnUpon requires to use the sub processor and is unable to satisfy You as to the suitability of the sub-processor or the documentation and protections in place between LearnUpon and the sub-processor within sixty (60) days from Your notification of objections, You may within thirty (30) days of the end of the sixty (60) day period referred to above terminate the Principal Agreement or applicable Order Form only in relation to the Services to which the proposed new sub-processor's processing of personal data relates or would relate by providing written notice to LearnUpon having effect thirty (30) days after receipt by LearnUpon. LearnUpon may use a new or replacement sub processor whilst the objection procedure in this clause is in process. LearnUpon shall, where it engages a sub-processor for carrying out specific processing activities on behalf of You, use reasonable endeavours to ensure that the same data protection obligations as set out in this DPA shall be imposed on that sub-processor by way of contract or other legal act under Data Protection Laws ("Relevant Terms"). LearnUpon shall procure the performance by such sub-processor of the Relevant Terms and shall be directly liable to You for any breach by such person of any of the Relevant Terms. If, in the performance of this DPA and/or the Principal Agreement, LearnUpon permits processing of any personal data by a sub processor (which shall include without limitation any Affiliates of LearnUpon) located outside of the EEA to which no specifically approved safeguard(s) for data transfers (as recognized under Data Protection Laws) and/or a European Commission finding of adequacy applies, LearnUpon shall put in place the European Commission's Standard Contractual Clauses as set out in the Annex to Commission Decision 2021/914 for transfer of personal data from the EEA and the UK Standard Contractual Clauses for Restricted Transfers outside the UK to processors established in third countries (Processor-to-Processor).
9.1 Subprocessing under CCPA/CPRA or Other State Laws. If LearnUpon authorizes any subprocessor to process, retain or use any personal information received from the Customer, accessed in connection with the Services or collected on the Customer’s behalf in connection with the Services, then prior to any disclosure of such personal information to such LearnUpon Subprocessor, LearnUpon shall enter into a written agreement with such subprocessor that (i) includes all required or necessary terms to ensure that such subprocessor is deemed a service provider or contractor within the meaning of the CCPA/CPRA, and (ii) requires subprocessor to be bound by terms that are substantially the same as LearnUpon’s restrictions, duties and obligations under this DPA. Without limiting the foregoing, LearnUpon shall remain primarily liable for any breach or non compliance of the CCPA/CPRA and/or the Other State Laws by the subprocessor.
10. Additional CCPA Obligations.
For purposes of this Section 10, “Customer Personal Data” shall include “personal information” (as that term is defined under CCPA) that Customer uploads into the Services that is processed by LearnUpon. LearnUpon is a “service provider” as defined in CCPA.
LearnUpon will not: (a) retain, use, or disclose Customer Personal Data for any purpose other than providing the Services; (b) retain, use, or disclose Customer Personal Data outside of the direct business relationship between LearnUpon and Customer; (c) sell or share Customer Personal Data (as the terms “sell” and “share” are defined in CCPA); or (d) combine Customer Personal Data with personal information that LearnUpon has received from another LearnUpon customer, except as permitted under CCPA.
LearnUpon will notify You if LearnUpon determines that LearnUpon can no longer comply with its obligations as a service provider under CCPA. You have the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information that is protected under CCPA.
11. Consents.
You warrant and represent that You have obtained and/or have in place, all necessary consents, approvals and/or valid legal basis for the lawful transfer of personal data to LearnUpon for the purposes of this DPA and the provision of services by LearnUpon.
12. Third-Party Services.
You may choose from time to time to use third party products or services in conjunction with the Services made available to You under the Principal Agreement (“Third Party Services”). If You elect to enable, access, or use such Third Party Services, Your access and use of such Third Party Services is governed solely by the terms and conditions and privacy policies of such Third Party Services, and LearnUpon does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation their content or the manner in which they handle personal data or any interaction between You and the provider of such Third Party Services.
13. Obligations under the Principal Agreement.
Nothing in this DPA reduces either Party’s obligations under the Principal Agreement in relation to the protection of personal data. In the event of any conflict or inconsistency between this DPA and any Standard Contractual Clauses or the UK Standard Contractual Clauses between the Parties, the Standard Contractual Clauses or the UK Standard Contractual Clauses shall prevail.
14. Order of precedence.
Subject to clause 6 above, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the Parties, including the Principal Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the Parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
15. Severance.
Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
16. Variation.
The Parties may amend, replace or vary the terms of this DPA to reflect any changes in Data Protection Laws or a new requirement under such law by executing a signed addendum.
17. Miscellaneous.
Without prejudice to clauses 17 (Governing Law) and 18 (Choice of Forum and Jurisdiction) of the Standard Contractual Clauses or the UK Standard Contractual Clauses, this DPA shall be governed by and construed in accordance with the laws of the country of territory stipulated for this purpose in the Principal Agreement and each of the parties agrees to submit to the Choice of jurisdiction as stipulated in the Principal Agreement in respect of any claim or matter arising under this DPA. To the extent this DPA is not governed exclusively by CCPA/CPRA or an Other State Law, it shall be governed by and construed in accordance with the laws set forth under the Principal Agreement.
For the avoidance of doubt, each reference to the DPA in this DPA means this DPA including its Schedules.
NATURE AND PURPOSE OF PROCESSING
LearnUpon will process Personal Data as necessary to perform the Services pursuant to the Principal Agreement, as further specified in the Documentation, and as further instructed by You in Your use of the Services.
DURATION OF PROCESSING
LearnUpon will process Personal Data for the duration of the Principal Agreement, unless otherwise agreed upon in writing.
CATEGORIES OF DATA SUBJECTS
Subject to the restrictions set forth in the Principal Agreement, You may submit Personal Data to LearnUpon, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
● Authorised Users ● Your employees ● Your consultants ● Your customers ● Your contractors ● Third Parties with which You conduct business.
CATEGORIES OF PERSONAL DATA
Subject to the restrictions set forth in the Principal Agreement You may submit Personal Data to LearnUpon, the extent of which is determined and controlled by You in Your sole discretion, and which may include, but is not limited to the following categories of Personal Data:
● First and last name ● Email ● IP address ● Learning history ● Profile images ● Other fields, as determined by the data controller in its sole discretion
CCPA/CPRA AND OTHER STATE LAW CRITERIA To the extent applicable, this Annex 1 describes the general Personal Information categories and related types of Data Subjects LearnUpon may process to fulfill the business purpose of the Principal Agreement. The Customer discloses Personal Information to LearnUpon only for the limited and specified business purpose.
SECURITY POLICIES AND MANAGEMENT
LearnUpon shall ensure senior management assigns security responsibility and reviews the implementation of security requirements through an organization-wide security policy (“Information Security Policy”). The Information Security Policy shall include a data classification system, which shall protect Your Confidential Information (“Confidential Information”) with at least the same level of protection that LearnUpon uses for similarly classified information. These security requirements, the Information Security Policy, and related guidelines shall be communicated to all LearnUpon employees and authorized subcontractors.
LearnUpon shall also communicate any additional security requirements required by You. LearnUpon shall conduct/review annual security risk assessments as part of its normal business operations and as part of its incident response process as described below, and shall modify its security related processes, procedures, and guidelines based on the findings in such security risk assessments.
LearnUpon’s personnel, its subcontractors, and external service providers shall sign non-disclosure agreements with terms at least as restrictive as those contained in this Agreement with LearnUpon, prior to being given access to Your Confidential Information. LearnUpon shall ensure there is an appropriate exit procedure for LearnUpon personnel, which includes disabling user access and returning assets when terminating employment or ending relationships.
TRAINING
LearnUpon shall conduct information security training during employee induction and at least once per year thereafter to all existing employees. LearnUpon shall ensure that emphasis is given to the proper handling of Your Confidential Information. LearnUpon shall have a policy to define acceptable usage of LearnUpon systems for email, messaging systems, internet access, etc.
SECURITY INCIDENT RESPONSE AND BUSINESS CONTINUITY
LearnUpon shall maintain a 24/7 security incident response plan (“Plan”) that complies with applicable laws and relevant industry standards applicable to the services and represents and warrants that it complies with Plan procedures. LearnUpon shall notify You in the event of a breach of security within 72 hours upon becoming aware of the incident unless directed otherwise by an appropriate/authorised law enforcement agency. LearnUpon will maintain a disaster identification and recovery system to deal with business continuity in the case of a security incident.
ACCESS CONTROLS
LearnUpon shall implement and maintain reasonable and appropriate access controls to protect Your Confidential Information against unauthorized or accidental access, use, disclosure, deletion, loss, or alteration in a manner that at minimum meets industry standards applicable to the Services. Measures will include but are not limited to:
Logical Segmentation. LearnUpon shall maintain Your Confidential Information so that it is logically segmented from LearnUpon and other customers’ information so that only authorized users (i.e., employees, subcontractors or other external service providers) can access Your Confidential Information.
Physical Access Controls. LearnUpon shall take reasonable measures to ensure physical and logical security controls to mitigate the risk of unauthorised intrusion into LearnUpon’s premises;
System Access Controls. LearnUpon shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall vary based on the nature of processing undertaken and may include:
Data Access Controls. LearnUpon shall take reasonable measures to ensure that access to the Confidential Information under its control is restricted to those individuals whom are explicitly authorised to access such Confidential Information. Access shall be limited to those with a business need for such access and to those access privileges required to fulfil that need only. Access shall be assigned using unique logon credentials to ensure accountability is maintained.
Transmission Controls. LearnUpon shall take reasonable measures to ensure secure transfer of Personal Data by means of data transmission. These controls may include:
Data Backup. LearnUpon shall take reasonable measures to ensure a back-up of the databases in the Service are taken on a regular basis and to restore the availability and access to Confidential Information in a timely manner in the event of a physical or technical incident (including, without limitation, measures relating to business continuity and disaster recovery) if required.