This Data Processing Agreement (“DPA“) forms an integral part of and is subject to the IMGN Terms of Service, entered into by and between the Company accepting the Terms of Service (“Controller“) and IMGN Software Ltd. (“Processor” and the “Agreement“, respectively). Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
Whereas, in connection with the performance of its obligations under the Agreement, Processor may Process Controller Personal Data (both as defined below) on behalf of the Controller; and
Whereas, the parties wish to set forth the mutual obligations with respect to the processing of Controller Personal Data by the Processor;
Now, therefore, intending to be legally bound, the parties hereby agree as follows:
1.1. “Applicable Law” means whichever of the following legal regimes is applicable to the processing of Personal Data under this DPA:
1.1.1. Regulation 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) (“GDPR“) and laws implementing or supplementing the GDPR;
1.1.2. The California Consumer Privacy Act of 2018, Cal. Civil Code Title 1.81.5 and the regulations thereunder (collectively, “CCPA“);
1.1.3. The Israel Protection of Privacy Law, 1981, all related regulations enacted thereunder, and the Israel Privacy Protection Authority’s Guidelines and the Israeli Protection of Privacy Regulations (Information Security) – 2017 (collectively, “Israeli Privacy Law“).
1.2. “Controller Personal Data” means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Agreement.
1.3. “Data Protection Laws” means Applicable Law and, to the extent applicable, the data protection or privacy laws of any other applicable country where the Services are delivered or as agreed in writing between the Parties.
1.4. “Sub Processor” means any person (excluding an employee of Processor) appointed by or on behalf of Processor to Process Controller Personal Data on behalf of the Controller in connection with the Agreement.
1.5. “Data Subject” shall mean the person whose Personal Data is Processed and both Data Subject as defined under the GDPR and Consumer as defined under the CCPA.
1.6. “Personal Data” shall mean Personal Data as defined under the GDPR, ‘Personal Information’ as defined under the CCPA, and ‘Information’ (‘meida’) as defined under Israeli Privacy Law, in each case, as applicable.
1.7. “Processing” shall be as defined in the GDPR, the CCPA, and Israeli Privacy Law, in each case as applicable.
1.8. The terms “Controller“, “Personal Data Breach“, “Processor“, and “Supervisory Authority” shall have the meanings ascribed to them in the GDPR.
1.9. The terms “Business“, “Sell“, “Share“, and “Service Provider“, shall have the meanings ascribed to them in the CCPA.
2.1. For Processing subject to the GDPR: When Controller Personal Data is subject to the GDPR, Controller serves as a Controller of such Personal Data and Processor serves as a Processor on its behalf. In such case, the Applicable Law shall be as described in Section 1.1.1 and this DPA shall be interpreted accordingly.
2.2. For Processing subject to the CCPA: When Controller Personal Data is subject to the CCPA, Controller serves as a Business with respect to such Personal Data and Processor serves as a Service Provider on its behalf. In such case, the Applicable Law shall be as described in Section 1.1.2 and this DPA shall be interpreted accordingly.
2.3. For Processing subject to Israeli Privacy Law: When Controller Personal Data is subject to Israeli Law, Controller shall be considered the party controlling the database of Controller Personal Data and Processor serves as an outsourced service provider on its behalf. In such case, the Applicable Law shall be as described in Section 1.1.3 and this DPA shall be interpreted accordingly.
3.1. Processor shall Process Controller Personal Data on Controller’s behalf and at Controller’s instructions as specified in the Agreement and in this DPA, including without limitation with regard to transfers of Controller Personal Data to a third country or international organization. Any other Processing shall be permitted only in the event that such Processing is required by any Data Protection Laws to which the Processor is subject. In such event, Processor shall unless prohibited by such Data Protection Laws on important grounds of public interest, inform Controller of that requirement before engaging in such Processing.
3.2. Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) (i) to Process Controller Personal Data for the provision of the services as detailed in the Agreement (“Services“) and as otherwise set forth in the Agreement and in this DPA, and/or as otherwise directed by Controller; and (ii) to transfer Controller Personal Data to any country or territory as reasonably necessary for the provision of the Services and in accordance with Applicable Law.
3.3. Controller sets forth the details of the Processing of Controller Personal Data, as required by Article 28(3) of the GDPR in Schedule 1 (Details of Processing of Controller Personal Data), attached hereto.
3.4. For Processing subject to the CCPA: Processor undertakes that it shall not Sell or Share Personal Data when processing Personal Data as a Service Provider and shall not retain, use, or disclose Personal Data for any commercial purpose other than providing the Services to Controller and as otherwise permitted under the Agreement.
6.1. Processor shall implement appropriate technical and organizational measures to ensure an appropriate level of security of the Controller Personal Data as set forth in the Binding Security Document attached hereto as Schedule 2. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by the nature of the Processing and the information available to the Processor.
6.2. For Processing subject to Israeli Privacy Law: Processor shall implement information security measures and take all necessary measures as per the Israeli Privacy Law, in order to maintain the integrity, availability, confidentiality, survival, and reliability of Controller Personal Data, and comply with all provisions of the Israeli Privacy Law, including, and without limitation, the obligations of an “external party” under section 15 of the Protection of Privacy Regulations (Data Security), 5777-2017, with which a “database owner” must obligate an external party to comply within the framework of an outsourcing agreement (as such terms are defined in the Israeli Privacy Law), and all which are hereby explicitly incorporated in this DPA. If requested, Processor will report to the Controller on the manner in which it is complying with its obligations under the Israeli Privacy Law and this DPA.
7.1. Processor shall notify Controller without undue delay and, where feasible, not later than within 48 (forty-eight) hours upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data. In such event, the Processor shall provide Controller with reasonable and available information to assist the Controller in meeting any obligations to inform Data Subjects or Supervisory Authorities of the Personal Data Breach as required under Applicable Law.
7.2. At the written request of the Controller, Processor shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the parties or required under Applicable Law to assist in the investigation, mitigation and remediation of any Personal Data Breach.
8.1. Controller authorizes Processor to appoint (and permits each Sub Processor appointed in accordance with this Section 8 to appoint) Sub Processors in accordance with this Section 8.
8.2. Processor may continue to use those Sub Processors already engaged by Processor as identified to Controller as of the date of this DPA.
8.3. Processor may appoint new Sub Processors and shall give notice of any such appointment to Controller. If within seven (7) days of such notice, the Controller notifies the Processor in writing of any reasonable objections to the proposed appointment, Processor shall not appoint the proposed Sub Processor for the Processing of Controller Personal Data until reasonable steps have been taken to address the objections raised by Controller and Controller has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Controller’s reasonable objections, each Controller or Processor may, by written notice to the other party and with immediate effect, terminate the Agreement to the extent that it relates to the services requiring the use of the proposed Sub Processor. In such an event, the terminating party shall not bear any liability for such termination.
8.4. With respect to each new Sub Processor, Processor shall:
8.4.1. Prior to the Processing of Controller Personal Data by Sub Processor, take reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that Sub Processor is committed and able to provide the level of protection for Controller Personal Data required by this DPA; and
8.4.2. ensure that the arrangement between the Processor and the Sub Processor is governed by a written contract, including terms that offer a materially similar level of protection for Controller Personal Data as those set out in this DPA and meet the requirements of Applicable Law.
8.5. Processor shall remain fully liable to the Controller for the performance of any Sub Processor’s obligations.
9.1. Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Processor shall, at Controller’s sole expense, use commercially reasonable efforts to assist Controller in fulfilling Controller’s obligations with respect to such Data Subject requests, as required under Data Protection Laws.
9.2. Upon receipt of a request from a Data Subject under any Data Protection Laws in respect to Controller Personal Data, Processor shall promptly notify Controller of such request and shall not respond to such request except on the documented instructions of Controller or as required by Data Protection Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Data Protection Laws, inform Controller of such legal requirement prior to responding to the request.
12.1. Subject to Sections 12.2 and 12.3, Processor shall make available to an auditor mandated by Controller in coordination with Processor, upon prior written request, such information reasonably necessary to demonstrate compliance with this DPA and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor, provided that such third-party auditor shall be subject to confidentiality obligations.
12.2. Any audit or inspection shall be at Controller’s sole expense and shall be subject to the terms of the Agreement, and subject to Processor’s reasonable security policies and obligations to third parties, including with respect to confidentiality. The results of any audit or inspection shall be considered the confidential information of the Processor and shall be treated with the same degree of care as Controller affords its own confidential information.
12.3. Controller and any auditor on its behalf shall use best efforts to minimize or avoid causing any damage, injury, or disruption to the Processors’ premises, equipment, employees, and business and shall not interfere with the Processor’s day-to-day business. Controller and Processor shall mutually agree upon the scope, timing, and duration of the audit or inspection and the reimbursement rate, for which Controller shall be responsible. Processor need not give access to its premises for the purposes of such an audit or inspection:
12.3.1. to any individual unless he or she produces reasonable evidence of identity and authority;
12.3.2. if Processor was not given prior written notice of such audit or inspection;
12.3.3. outside of normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis; or
12.3.4. for the purposes of more than one (1) audit or inspection in any calendar year, except for any additional audits or inspections which:
22.214.171.124. Controller reasonably considers necessary because of genuine concern as to Processor’s compliance with this DPA; or
126.96.36.199. Controller is required to carry out by Applicable Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Applicable Law in any country or territory, where Controller has identified its concerns or the relevant requirement or request in its prior written notice to Processor of the audit or inspection.
12.3.5. Processor shall immediately inform Controller if, in its opinion, an instruction received under this DPA infringes Applicable Law.
14.1. Governing Law and Jurisdiction. The parties to this DPA hereby agree that the competent courts in Malta shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of Malta.
14.2. Order of Precedence.
14.2.1. This DPA is not intended to, and does not in any way limit or derogate from Controller’s obligations and liabilities towards the Processor under the Agreement and/or pursuant to Data Protection Laws or any law applicable to Controller in connection with the collection, handling and use of Controller Personal Data by Controller or other processors or their sub-processors, including with respect to the transferor provision of Controller Personal Data to Processor and/or providing Processor with access thereto.
14.2.2. Subject to this Section 14.2, 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 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.
14.3. Changes in Data Protection Laws.
14.3.1. Controller may, by at least 45 (forty-five) calendar days prior written notice to Processor, 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 in order to allow Controller Personal Data to be Processed (or continue to be Processed) without breach of Data Protection Laws.
14.3.2. If Controller gives notice with respect to its request to modify this DPA under Section 14.3.1, (i) Processor shall make commercially reasonable efforts to accommodate such modification request and (ii) Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein.
14.4. Severance. Should any provision of this DPA be held invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (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.
Schedule 1: Details of Processing of Controller Personal Data
This Schedule 1 includes certain details of the Processing of Controller Personal Data.
Subject matter and duration of the Processing of Controller Personal Data.
The subject matter and duration of the Processing of the Controller Personal Data are set out in the Agreement, in the Processor’s Privacy Notice (“Privacy Notice“), and in this DPA.
The nature and purpose of the Processing of Controller Personal Data:
Rendering Services in the nature of facilitating film production processes by automating part of the process and by providing user-friendly management tools to oversee the production throughout all its stages, as detailed in the Agreement and the Privacy Notice.
The types of Controller Personal Data to be Processed are as follows:
As detailed in the Privacy Notice, including personal data provided in User Content, such as a screenplay, and which is not used to provide the Services.
The categories of Data Subject to whom the Controller Personal Data relates to are as follows:
Individuals involved in the film production project.
The obligations and rights of the Controller.
The obligations and rights of the Controller are set out in the Agreement and this DPA.
Schedule 2: Binding Security Document
Processor uses firewalls to protect our internet connection This will be your first line of defense against an intrusion from the internet.
Processor uses the most appropriate security settings for its devices and software. Most hardware and software will need some level of setup and configuration in order to provide effective protection.
Processor controls who has access to your data and services Restrict access to your system to users and sources you trust.
Processor protects itself from viruses and other malware.
Processor keeps its software and devices up-to-date. Hardware and software need regular updates to fix bugs and security vulnerabilities.
Processor regularly backs up its data. Regular backups of your most important data will ensure it can be quickly restored in the event of disaster or ransomware infection.