Last Updated: August 2023
This Data Processing Addendum (“Addendum”) supplements the Master Services Agreement and Terms and Conditions (collectively, the “Agreement”) entered into by and between Blue Sky eLearn, LLC (“Processor”) and the Customer (“Controller”) for the purchase of online services (including associated Blue Sky eLearn services) from Blue Sky eLearn (identified either as “Services” or otherwise in the applicable agreement, and hereinafter defined as “Services”) (the “Agreement”) to reflect the parties’ agreement with regard to the Processing of Personal Data. Any terms not defined in this Addendum shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and the Agreement, the terms and conditions of this Addendum shall supersede and control.
1.1 “Authorized Employee” means an employee of Processor who has a need to know or otherwise access Personal Data to enable Processor to perform their obligations under this Addendum or the Agreement.
1.2 “Authorized Individual” means an Authorized Employee or Authorized Sub-processor.
1.3 “Authorized Sub-processor” means a third-party subcontractor, agent, reseller, or auditor who has a need to know or otherwise access Personal Data to enable Processor to perform its obligations under this Addendum or the Agreement, and who is either (1) listed on the Blue Sky eLearn sub-processor webpage available at https://www.blueskyelearn.com/subprocessors or (2) authorized by Controller to do so under Section 4.2 of this Addendum.
1.4 “Data Subject” means an identified or identifiable person to whom Personal Data relates.
1.5 “Instruction” means a direction, 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.
1.6 “Personal Data” means any information relating to Data Subject (and as further defined by GDPR) which Processor Processes on behalf of Controller.
1.7 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored, or otherwise processed.
1.8 “Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
1.9 “Services” shall have the meaning set forth in the Agreement.
1.10 “Standard Contractual Clauses” means the agreement executed by and between Controller and Processor for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, attached hereto as Exhibit B; as may be amended, superseded, or replaced.
1.11 “Supervisory Authority” means a supervisory authority concerned by the processing of Personal Data (and as further defined by GDPR)
2.1 The rights and obligations of the Controller with respect to this Processing are described herein. Controller shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with EU Directive 95/46/EC (the “Directive”), and, when effective, the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR” and together, “Data Protection Laws”)). Controller shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and 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 legality of (i) the Personal Data provided 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 provide or make available to Processor any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Processor from all claims and losses in connection therewith.
2.2 Processor shall Process Personal Data only (i) for the purposes set forth in the Agreement, (ii) in accordance with the terms and conditions set forth in this Addendum and any other documented instructions provided by Controller, and (iii) in compliance with the Directive, and, when effective, the GDPR. Controller hereby instructs Processor to Process Personal Data for the following purposes as part of any Processing initiated by Controller in its use of the Services.
2.3 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 Addendum.
2.4 Following completion of the Services, at Controller’s choice, Processor shall return or delete the Personal Data, except as required to be retained by the laws of the European Union or European Union member states.
3.1 Processor shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
3.2 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 engagement with Processor, any Personal Data except in accordance with their obligations in connection with the Services.
3.3 Processor shall take commercially reasonable steps to limit access to Personal Data to only Authorized Individuals.
4.1 Controller acknowledges and agrees that Processor may engage Authorized Sub-processors to access and process Personal Data in connection with the Services. Processor may also, from time to time, engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data.
4.2 A list of Processor’s current Authorized Sub-processors (the “List”) is available at https://www.blueskyelearn.com/subprocessors. The website will include a mechanism to subscribe to notifications of new Sub-processors for each applicable Service, to which Customer shall subscribe. Processor shall provide notification of new Sub-processor(s) before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services. Controller may object to such an engagement in writing within ten (10) business days of receipt of the aforementioned notice by Controller as outlined in this section.
4.2.1 If Controller reasonably objects to an engagement in accordance with Section 4.2, Processor shall provide Controller with a written description of commercially reasonable alternative(s), if any, to such engagement, including without limitation modification to the Services. If Processor, in its sole discretion, cannot provide any such alternative(s), or if Controller does not agree to any such alternative(s) if provided, Processor may terminate this Addendum with respect only to those Services which cannot be provided by the Processor without the use of the objected-to new Sub-processor by providing written notice to the Controller. Termination shall not relieve Controller of any fees owed to Processor under the Agreement.
4.2.2 If Controller does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) business days of notice by Processor as outlined in section 4.2, such third party will be deemed an Authorized Sub-processor for the purposes of this Addendum.
4.3 Processor shall, by way of contract or other legal act under European Union or European Union member state law (including without limitation approved codes of conduct and 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 Addendum.
4.4 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 Addendum had it conducted such acts or omissions, except as otherwise set forth in the Agreement.
5.1 Processor shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data. Processor will not materially decrease the overall security of the Services during an Agreement term.
6.1 Any transfer of Personal Data made subject to this Addendum 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 the laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, be undertaken by Processor on documented instructions from the Controller (unless required otherwise by law). Such transfers shall be made in accordance with the appropriate safeguards, including the use of Standard Contractual Clauses (SCCs) as set forth in Exhibit B to this Addendum.
7.1 Processor shall, to the extent permitted by law, promptly notify Controller upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, restriction of Processing, 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)”).
7.2 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.
8.1 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 GDPR to 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.
8.2 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.
8.3 Processor shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum. Controller shall, with reasonable notice to Processor, have the right to review, audit and copy such records at Processor’s offices during regular business hours.
8.4 Upon Controller’s request and at Controller’s choice, Processor shall, no more than once per calendar year, make available for Controller’s review copies of certifications or reports demonstrating Processor’s compliance with prevailing data security standards applicable to the Processing of Controller’s Personal Data.
8.5 In the event of a Personal Data Breach, Processor shall, without undue delay and no later than 72 hours after becoming aware of the breach, notify Controller of the Personal Data Breach. The notification shall include, to the extent known or reasonably ascertainable, the following information: (a) a description of the nature of the breach, including the categories and approximate number of affected Data Subjects and Personal Data records involved; (b) the likely consequences of the breach; (c) the measures taken or proposed to be taken by the Processor to address the breach, including any remedial actions; and (d) contact information for the Processor's data protection officer or other designated point of contact.
8.6 In the event of a Personal Data Breach, Processor shall, 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 the General Data Protection Regulation (GDPR). This shall include, but not be limited to, providing Controller with relevant information and documentation necessary for Controller to fulfill its obligation to notify (i) the relevant Supervisory Authority and (ii) the affected Data Subjects, without undue delay.
8.7 Processor shall assist Controller in the preparation of any necessary notifications to the relevant Supervisory Authority and affected Data Subjects. Processor shall provide reasonable cooperation in drafting the content of the notifications, as well as any additional information or documentation required to comply with the obligations under the GDPR. In cases where a personal data breach is caused by the fault of the Controller or the Controller's Users, the Processor's assistance shall be provided at the Controller's cost.
8.8 Processor shall maintain appropriate records of all Personal Data Breaches, including the facts surrounding the breach, its effects, and the remedial actions taken. Processor shall make these records available to Controller upon request to support Controller's compliance with its obligations under the GDPR.
8.9 The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Controller or the Controller’s Users.
9.1 The processing of Personal Data by the Processor shall be based on the lawful basis of performance of a contract between the Controller and the Processor, as outlined in Article 6(1)(b) of the General Data Protection Regulation (GDPR). The Controller acknowledges and confirms that the processing activities conducted by the Processor are necessary for the performance of the Agreement between the parties.
10.1 Processor shall have no liability to the Controller for any loss, damage, costs, expenses, or other claims for compensation arising from any Personal Data or instructions supplied by the Controller which are incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or otherwise not fitting any relevant description. The Processor shall not be liable for issues arising from the late arrival or non-arrival of data, or any other fault of the Controller.
10.2 The Processor will not be liable for any claim brought by a Data Subject arising from any action or omission by the Controller to the extent that such action or omission resulted from the Processor's fulfillment of the Controller's instructions.
10.3 The total liability of each of Controller and Processor (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Addendum, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
By executing the Blue Sky eLearn Master Services Agreement (MSA), both Blue Sky eLearn, LLC and the party identified as the customer in the Agreement ("Customer") signify their acceptance of the terms and conditions of this Data Processing Addendum (DPA), including its schedules and the Standard Contractual Clauses (SCCs).
This DPA is fully incorporated into and forms an essential component of the MSA between the parties. Both parties acknowledge and commit to comply with the SCCs contained within this DPA, as necessary for the transfer of personal data. No separate signature is required for this DPA, as the signing of the MSA shall constitute agreement to all terms contained herein.
Blue Sky eLearn will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Controller in its use of the Services.
Subject to Section 2.4 of the Addendum, Blue Sky eLearn will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Controller may submit Personal Data to the Services, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Controller may submit Personal Data to the Services, the extent of which is determined and controlled by Controller in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ( ) for the transfer of data to a third country. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified.
Name of the data exporting organization:
Exporting organization address and contact details as defined in the executed MSA.
(the data exporter)
Name of the data importing organization: Blue Sky eLearn, LLC
Address: 5405 Morehouse Drive, STE 340, San Diego, CA 92121, USA
Tel.: +1 858 900 2223; fax: +1 619 839 3706; e-mail: firstname.lastname@example.org
Other information needed to identify the organization: Not applicable
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I, unless on further instructions from the data exporter.
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
The data exporter agrees and warrants:
The data importer agrees and warrants:
This Addendum shall be governed by and construed in accordance with the laws of England and Wales. If it is or becomes a requirement that this Addendum must be governed by the laws of a Member State of the European Union, and the governing law specified in this Addendum does not or ceases to satisfy this requirement, this Addendum shall be governed by and construed in accordance with the laws of Ireland.
The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
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.
An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing Appendix III and signing.
Once it has completed the Appendix III and signing, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Appendix III.
The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is (please specify briefly your activities relevant to the transfer):
Data Exporter is the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and that has purchased Services on the basis of one or more Agreement(s).
The data importer is (please specify briefly activities relevant to the transfer):
Blue Sky eLearn, LLC is a provider of learning management solutions which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
The personal data transferred concern the following categories of data (please specify):
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
The personal data transferred concern the following special categories of data (please specify):
Data exporter may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
The personal data transferred will be subject to the following basic processing activities (please specify):
The nature, objective, and purpose of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.
The period for which personal data will be retained only for the period in which is it necessary for the data important to perform the Services pursuant to the Agreement.
The categories of data subjects who personal data is transferred are specified in Appendix I to the Standard Contractual Clauses.
The categories of personal data transferred are specified in Appendix I to the Standard Contractual Clauses. Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
The frequency of the transfer is as needed based on onboarding schedule.
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Documentation applicable to the specific Services purchased by data exporter, and available on the Agreement or otherwise made reasonably available by data importer. Data Importer will not materially decrease the overall security of the Services during an Agreement term.
Controls will be maintained as described in our Cyber Security Policy.