Data Processing Addendum
Last modified: June 4, 2023
This Data Processing Addendum (“DPA”) forms part of the signed written or electronic agreement(s) (collectively with all other agreements, documents, order(s), certificates and instruments , the “Agreement”) entered into by and between Client and the D2L entity identified on the Agreement (“D2L” or “Processor”). This DPA governs the Processing of Personal Data that Client uploads or otherwise provides or makes available to D2L in connection with the Services and sets forth each party’s respective duties and obligations under applicable Data Protection Laws. Any term not defined in this DPA shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this DPA and the Agreement, the terms and conditions of this DPA shall supersede and control to the extent of such conflict and so far as the subject matter concerns the processing of Personal Data.
- DEFINITIONS. In this DPA, the following terms shall have the meanings set out below:
- “Authorized Employee” means an employee of Processor who is authorized by the Processor to access, disclose or use Personal Data to enable Processor to perform its obligations under the Agreement.
- “Authorized Individual” means an Authorized Employee or Authorized Sub-processor.
- “Authorized Sub-processor” means a third-party vendor, agent, or reseller who (i) provides Processing services to Processor in furtherance of Processor’s Processing of Personal Data on behalf of Controller under the Agreement, and (ii) has a need to know or access Personal Data to enable Processor to perform its obligations under the Agreement.
- “Client” means the entity identified on the Agreement and that executed the Agreement.
- “Data Protection Laws” means all laws, regulations, and other legal requirements applicable to the collection and Processing of Personal Data under the Agreement at any time and from time to time, including, without limitation, the GDPR.
- “GDPR” means General Data Protection Regulation (EU) 2016/679, as amended, and the policies, orders, instructions, rules, and regulations promulgated thereunder.
- “Instructions” means the directions, either in writing, in textual form (e.g. by e-mail) or by using a software or online tool, issued by Controller to Processor and directing Processor to Process Personal Data.
- “Standard Contractual Clauses” means the contractual clauses issues by the European Commission’s decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to processors established in third countries pursuant to Regulation (EU) 2016/679.
- The terms, “Controller“, “Data Subject“, “Personal Data“, “Personal Data Breach“, “Process”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
- PROCESSING OF PERSONAL DATA
- Controller’s Obligations. Controller shall, in its use of the Services, at all times, provide Instructions for the Processing of Personal Data, in compliance with applicable Data Protection Laws, and shall ensure that the Processing of Personal Data in accordance with Controller’s Instructions will not cause Processor to be in breach of the Data Protection Laws. Controller is solely responsible for the accuracy, quality, and lawfulness of (i) the Personal Data uploaded or otherwise provided or made available to Processor by or on behalf of Controller, (ii) the means by which Controller acquired any such Personal Data, and (iii) the Instructions it provides to Processor regarding the Processing of such Personal Data. Controller shall not upload or otherwise provide or make available to Processor any Personal Data in violation of the Agreement or applicable Data Protection Laws or which is otherwise inappropriate for the nature of the Services. Controller shall indemnify, defend, and hold harmless Processor from and against all claims or losses due to Controller’s non-compliance with its obligations in this section.
- Processor’s Obligations. Processor shall Process Personal Data only (i) for the purposes set forth in the Agreement (including, without limitation, for the purposes of providing, supporting and/or improving the Services), (ii) in accordance with the terms and conditions set forth in this DPA and any other documented Instructions provided by Controller, and (iii) in compliance with applicable Data Protection Laws.
- Nature and Scope of Processing. The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA. Each party agrees to Process Personal Data under this Agreement only for the purposes and in the manner as described in Exhibit A to this DPA.
- Termination. Following completion of the Services, except as required to be retained by applicable law, D2L may delete or destroy Client Data residing on D2L networks at the end of the Term, unless otherwise agreed in writing. Prior to the end of the Term, Client may use certain export tools within the Services to allow Client to export course content materials in a standard packaged format as well as to export grades and other specific data elements in the Services. If Client requires additional support, D2L shall provide such data export services for a fee on a time and materials basis under an Agreement. For greater clarity, D2L shall be entitled to (and nothing in the foregoing shall be construed as restricting its right to) Process Personal Data under the Agreement that has been aggregated and/or anonymized in such a manner that the Data Subject(s) are not or no longer identifiable for purposes solely of improving the Services.
- AUTHORIZED EMPLOYEES
- Processor shall take reasonable steps to ensure the reliability and appropriate training of, and to limit access to Personal Data only to, Authorized Employees.
- Processor shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their employment with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
- Processor has appointed a data protection officer where such appointment is required by Data Protection Laws. The appointed person may be reached at [email protected].
- AUTHORIZED SUB-PROCESSORS
- Subject to the applicable terms of the Standard Contractual Clauses incorporated by reference into this DPA, Controller acknowledges and agrees that Processor may (i) engage the Authorized Sub-processors who are under a covenant of confidentiality with D2L, to assist with the provision of the Services and to access and Process Personal Data in connection with the Services, and (ii) from time to time engage additional third parties for the purpose of providing the Services, including, without limitation, the Processing of Personal Data. D2L will notify Controller from time to time as to changes in its Authorized Sub-processors or will provide such details upon request.
- Processor shall ensure that all Authorized Sub-processors have executed confidentiality agreements that prevent them from disclosing or otherwise Processing any Personal Data both during and after their engagement by Processor.
- Processor shall, by way of contract or other legal act under applicable Data Protection Laws (including, as applicable, approved codes of conduct and/or Standard Contractual Clauses), ensure that every Authorized Sub-processor is subject to obligations regarding the Processing of Personal Data that are no less protective than those to which the Processor is subject under this DPA.
- Processor shall be liable to Controller for the acts and omissions of Authorized Sub-processors to the same extent that Processor would itself be liable under this DPA had it conducted such acts or omissions.
- SECURITY OF PERSONAL DATA
- Processor shall maintain appropriate technical and organizational measures to protect against a Personal Data Breach and ensure a level of security and privacy appropriate to the risk of Processing Personal Data, including the security and privacy measures described in Exhibit B to this DPA.
- In the event of a Personal Data Breach, Processor shall (i) notify Controller of the Personal Data Breach without undue delay and in accordance with applicable legislative timelines, after becoming aware of the same. Notice of the Personal Data Breach shall include information required by Data Protection Laws, investigation analysis of the Personal Data Breach, and further outline reasonable steps to mitigate the impact and minimize potential damage resulting from the Personal Data Breach.
- Processor shall cooperate with Controller and any third parties designated by the Controller to respond to and report the Personal Data Breach to appropriate authorities, as applicable. If a Personal Data Breach has occurred warranting disclosure, the Processor will communicate this information via written record (i.e. email).
- TRANSFERS OF PERSONAL DATA
- Any transfer of Personal Data regulated by the GDPR made subject to the Agreement from member states of the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom to any countries which do not ensure an “adequate” level of data protection within the meaning of applicable Data Protection Laws of these countries shall, to the extent such transfer is subject to such Data Protection Laws, be undertaken by Processor pursuant to the Standard Contractual Clauses (the terms of which are hereby incorporated by reference to this DPA). For greater clarity, the parties agree that Module 2 of the Standard Contractual Clauses governing controller-to-processor transfers shall apply and, without limiting the generality of the foregoing, (i) the Data Protection Commission of Ireland shall be the competent Supervisory Authority pursuant to Clause 13 of the Standard Contractual Clauses, (ii) Data Subjects for whom the Processor Processes EU Personal Data are third-party beneficiaries under the Standard Contractual Clauses, (iii) the Standard Contractual Clauses shall be governed by the law of Ireland, which allows for third-party beneficiary rights pursuant to Clause 17 of the Standard Contractual Clauses, (iv) any dispute arising from the Standard Contractual Clauses shall be resolved by the courts of Ireland pursuant to Clause 18 of the Standard Contractual Clauses, and (v) Exhibits A and B to this DPA shall apply as Annexes I and II of the Standard Contractual Clauses, respectively.
- Notwithstanding the foregoing or anything to the contrary contained herein, in the event of any transfers of Personal Data made subject to the Agreement from the United Kingdom to any counties which do not ensure an “adequate” level of data protection within the meaning of the United Kingdom’s General Data Protection Regulation (as amended by the United Kingdom’s Data Protection Act 2018, the “UK GDPR”), (i) the UK Information Commissioner shall act as the exclusive Supervisory Authority for such transfers, and (ii) in the event that the United Kingdom’s Information Commissioner confirms that an International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is required for such transfers, then (i) the UK Addendum shall be deemed to be executed between the parties; and (ii) the Standard Contractual Clauses between the parties shall be deemed to be amended to the extent as specified in the UK Addendum in respect of such transfers.
- RIGHTS OF DATA SUBJECTS
- To the extent Controller, in its use of the Services, does not have the ability to correct, amend, block, or delete Personal Data, as required by Data Protection Laws, Processor shall provide assistance to a reasonable request by Controller to facilitate such actions to the extent Processor is legally permitted to do so. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
- Processor shall, to the extent permitted by law, notify Controller without undue delay upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Processor receives a Data Subject Request in relation to Controller’s data, Processor will advise the Data Subject to submit their request to Controller and Controller will be responsible for responding to such request, including, where necessary, by using the functionality of the Services.
- Processor shall, at the request of the Controller, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Controller in complying with Controller’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Controller is itself unable to respond without Processor’s assistance and (ii) Processor is able to do so in accordance with all applicable laws, rules, and regulations. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
- ACTIONS AND ACCESS REQUESTS
- Processor shall promptly inform Controller (i), if, in the opinion of Processor, an Instruction from Controller violates, or could reasonably be expected to violate, applicable Data Protection Laws, (ii) if Processor becomes aware of any material non-compliance by it or its Authorized Individuals with the provisions of this DPA relating to the protection of Personal Data Processed under the Agreement, (iii) if Processor becomes aware of any notice, inquiry or investigation by a Supervisory Authority with respect to Personal Data Processed under the Agreement, or (iv) to the extent permitted under applicable laws, if Processor becomes aware of any legally binding request for disclosure of Personal Data Processed under the Agreement by a Supervisory Authority.
- Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance, where necessary for Controller to comply with its obligations under the Data Protection Laws, conduct a data protection impact assessment and/or to demonstrate such compliance, provided that Controller does not otherwise have access to the relevant information. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
- Processor shall, taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance with respect to Controller’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Controller shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Processor.
- Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA.
- Processor shall make available for Controller’s review at https://www.d2l.com/security (i) copies of Processor’s certifications; and/or (ii) upon Controller’s request no more than once per calendar year, reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data. Should Controller have serious cause to believe that Processor is in material breach of its obligations hereunder, Processor shall allow Controller or its authorised representative, upon reasonable notice and at a mutually agreeable date and time, to conduct not more than one (1) audit or inspection per calendar year of Processor’s data security infrastructure that is sufficient to demonstrate Processor’s compliance with its obligations under this DPA, provided that Controller shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Processor’s business. Controller shall be responsible for the costs of any such audits or inspections. Notwithstanding the foregoing or anything to the contrary contained herein, if the requested audit scope is addressed in an ISO, SOC, or similar audit report performed by a qualified third-party auditor within twelve (12) months of Controller’s request and Processor confirms there are no known material changes in the controls audited, Controller agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
- Subject to the provisions of Section 8.7, in the event of a Personal Data Breach, Processor shall, without undue delay and in accordance with the timelines specified in applicable Data Protection Laws, (i) inform Controller of the Personal Data Breach via email communication and take such steps as Processor in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Processor’s reasonable control), and (ii) taking into account the nature of the Processing and the information available to Processor, provide Controller with reasonable cooperation and assistance necessary for Controller to comply with its obligations under applicable Data Protection Laws with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach.
- The obligations described in Section 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller. Processor’s obligation to report or respond to a Personal Data Breach under Section 8.6 will not be construed as an acknowledgement by Processor of any fault or liability with respect to the Personal Data Breach.
- The Processor’s Privacy Officer is responsible for ensuring D2L’s compliance with this DPA. If you have any ccomments, questions or concerns about this DPA, the data that we collect from you or how that data is being used, or to report suspected misuse of your information, please contact us at [email protected] or write to us at:
Attn: Privacy Officer
137 Glasgow St Suite 560
Kitchener, ON N2G 4X8
cc: Legal Department
- This DPA is without prejudice to the rights and obligations of the parties under the Agreement, which shall continue to have full force and effect.
- This DPA shall be governed by the laws of the jurisdiction identified in the Agreement.
- The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
- This DPA shall remain in effect until and unless the termination and/or expiration of all Agreements and D2L ceases to Process Personal Data for or on behalf of Client under the Agreement.
DETAILS OF PROCESSING
Categories of data subjects whose personal data is transferred
- Prospects, customers, business partners and/or vendors of data exporter (who are natural persons)
- Employees or contact persons of data exporters’ prospects, customers, business partners and/or vendors
- Data exporter’s users authorized by data exporter to use the Services, including employees, administrators and other representatives of such users
- Complainants or enquirers
Categories of personal data transferred
- First name
- Last name
- Contact information (e.g., email address, phone number, physical address, etc.)
- Log-on/log-off information, including username and passwords
- User records and related information (e.g., courses, programs, grades, etc.)
- Title/ position
- Employer/ institution
- Connection data, including IP address
- Localization data
- Personal details (e.g., family, lifestyle, social circumstances, financial details, etc.)
The frequency of the transfer
Continuous (depending on when the data exporter and/or its users upload its or their respective data)
Nature of the processing
To provide the Services to data exporter and its authorized users for use and access in accordance with the terms and subject to the conditions set forth in the Agreement
Purpose(s) of the data transfer and further processing
- Processing in accordance with the terms and subject to the conditions set forth in the Agreement
- Processing initiated by data exporter’s users in the course of their use and access of the Services
- Processing in compliance with other reasonable and documented instructions provided by data exporter in accordance with the terms hereof
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
During the term and any renewal term(s) of the Agreement
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Sub-processors are used for data hosting, report formatting, incident reporting and other functions that are related or ancillary to or otherwise form a part of the purposes described above
APPROPRIATE TECHNICAL AND ORGANIZATIONAL MEASURES
D2L has implemented security and privacy policies, processes and procedures that align with the following industry acceptable standard-setting organizations: International Organization of Standards (ISO), U.S. National Institute of Standards and Technology (NIST) and Open Web Application Security Project (OWASP) Foundation. Security and privacy controls implemented have been certified through annual external third-party audits to ISO/IEC 27001, ISO/IEC 27017, ISO/IEC 27018, SOC I Type 2 and SOC II Type 2.
D2L only collects and stores minimum information required to deliver and maintain its services. All data stored for this purpose is encrypted using the latest Advanced Encryption Standard (AES) established by NIST. All data transmitted for this purpose is encrypted using the latest Transport Layer Security (TLS) configuration supported by Amazon Web Services (AWS).
D2L uses multiple AWS to ensure ongoing confidentiality, integrity and availability of the processing system and services. Services are accessed and managed using the AWS management console. Access to this console is configured to follow the best practices principles of least privilege and need-to-know. In particular, employee access to this console is controlled via two-factor authentication.
D2L has a disaster recovery plan in place that is tested annually. D2L takes full monthly and incremental daily backups of all client data residing on the system.
The testing, assessment and evaluation of the effectiveness of D2L’s technical and organizational security and privacy measures are covered under the following:
- Annual internal audits;
- Annual external audits;
- Annual external third-party penetration tests; and
- Regular internal vulnerability scans.
AWS data centers are secured by AWS, and access is restricted to AWS staff. For more information about the physical security of AWS data centers, please visit aws.amazon.com/compliance/data-center/data-centers/.
With respect to D2L’s higher education institutional clients that utilizes the Higher Education Community Vendor Assessment Toolkit (HECVAT), D2L meets the requirements for HLAA-05 (e.g., events logging). Logging is enabled to track actions completed.
Developers are trained on security and privacy fundamentals, including only storing data with a clear purpose and deletion of data after its useful life. The lifecycle of customer data is controlled by the customer using a data purge utility built into the Learning Management System. In addition, D2L has a data purge process that allows for erasure requests to be actioned appropriately according to required regional laws and standards.
For more information about D2L’s technical and organizational security measures, please visit www.d2l.com/security.