In connection with the products and/or services (“Solutions”) identified in the agreement in effect between EXABEAM and CONTRACTOR (“Agreement”), the parties anticipate that CONTRACTOR, and where applicable its subcontractors, may from time to time process Protected Data in respect of which EXABEAM, its Affiliates, or clients or customers of EXABEAM or its Affiliates may be a data controller under the Data Protection Legislation (as defined below). CONTRACTOR and EXABEAM agree to the terms of this Data Security Policy (“Policy”), as updated by EXABEAM from time to time, in order to ensure that adequate safeguards are put in place with respect to the protection of such Protected Data as required by the Data Protection Legislation.
1. DEFINITIONS Unless otherwise defined herein, capitalized terms used in this Policy shall have the same meaning as set forth in the Agreement.
1.1 “Affiliates” means an entity directly or indirectly controlling, controlled by or under common control with a party. For purposes of this definition, “control” means the ownership or control, directly or indirectly, of at least fifty percent (50%) or more of all the voting shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
1.2. “Business Associate” has the definition given to it under HIPAA.
1.3 “Breach” has the definition given to it under HIPAA. For purposes of this Agreement, the term “Breach” further relates to compromises of PII.
1.4 “Confidential Information” means any and all information related to Exabeam, its Affiliates, clients, or customers (including software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information, credit card or other financial information, and proprietary of third parties provided to the other party in confidence) that is labeled or identified as “confidential” or “proprietary”; and, if disclosed orally or otherwise in tangible form, is confirmed as such in writing within thirty (30) days of such disclosure; or otherwise is of such type of disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary. Without limiting the foregoing, all software and documentation shall be deemed “Confidential Information” of EXABEAM, and all Customer Data shall be deemed “Confidential Information” of Exabeam and its customers.
1.5 “Customer Data” means any data made available to CONTRACTOR during the term of the Agreement, including but not limited to data uploaded to the SaaS environment, including any PII, and any output from Exabeam, its Affiliates, clients, or customer’s use of the SaaS environment.
1.6 “Data Protection Legislation” means all privacy laws and regulations applicable to any Protected Data processed under or in connection with this Policy and the Agreement, including without limitation, the Data Protection Directive 95/46/EC (as the same may be superseded by the GDPR, the Privacy and Electronic Communications Directive 2002/58/EC, CCPA, and all national legislation implementing or supplementing the foregoing.
1.7 “GDPR” means the 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 Protected Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.8 “PCI DSS” means the data security standard published and updated from time to time by the Payment Card Industry Security Standards Council, or any successor council or agency that includes requirements for security management, policies, procedures, network architecture, software design, and other critical protective measures for electronic data.
1.9 “Personal Data” means all data which is defined as ‘Personal Data’ in the Data Protection Legislation and that is provided directly or indirectly by EXABEAM to CONTRACTOR, or accessed, stored or otherwise processed by CONTRACTOR or its sub-processors (as applicable) for the purposes of delivering the Solution to EXABEAM.
1.10 “Protected Data” means all Confidential Information, Customer Data, and Personal Data of Exabeam, its Affiliates, clients and customers.
1.11 “Processing”, “Data Controller”, Data Processor “, “Data Subject” and “Supervisory Authority” shall have the meanings ascribed to them in the Data Protection Legislation.
1.12 “Standard Contractual Clauses / SCC” means the Standard Contractual Clauses document attached as Attachment 1.
2. DATA PROCESSING.
2.1 Scope and Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Protected Data, EXABEAM is the Data Controller, CONTRACTOR is the Data Processor.
2.2 Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of its obligations under this Policy, including the Data Protection Legislation.
2.3 Processing Instructions. CONTRACTOR will process Protected Data in accordance with the Agreement then in effect between EXABEAM and CONTRACTOR and with EXABEAM’s reasonable written instructions, where such instructions are consistent with the terms of the Agreement and this Policy.
3. DATA TRANSFERS.
3.1 Neither CONTRACTOR, nor any of its sub-processors, shall access, transfer, or process Protected Data outside of the country of origin without EXABEAM’s prior written approval.
3.2 To the extent any processing of Protected Data by CONTRACTOR takes place in any country outside the EEA (except if in an Adequate Country), the parties agree that the standard contractual clauses (as set out in Schedule 1 of this Policy) will apply in respect of that processing and CONTRACTOR will comply with the obligations of the ‘data importer’ in the standard contractual clauses and EXABEAM will comply with the obligations of ‘data exporter’.
3.3 If, in the performance of the Agreement, CONTRACTOR transfers any Protected Data to a sub-processor (which may include without limitation any affiliates of CONTRACTOR) and without prejudice to Section 7, where such sub-processor will process Protected Data outside the EEA, CONTRACTOR shall in advance of any such transfer ensure that a mechanism to achieve adequacy in respect of that processing is in place such as: (i) the requirement for CONTRACTOR to execute or procure that the third party execute on behalf of EXABEAM standard contractual clauses approved by the EU authorities under Data Protection Legislation and set out in Attachment 1; (ii) the requirement for the third party to be certified under the Privacy Shield framework; or (iii) the existence of any other specifically approved safeguard for data transfers (as recognized under the Data Protection Legislation) and/or a European Commission finding of adequacy.
4. SECURITY; AUDITS.
4.1 Security. CONTRACTOR represents and warrants that will maintain appropriate technical and organizational safeguards against the unauthorized and unlawful Processing of Protected Data, and against accidental loss or destruction of, and damage to Protected Data, and that CONTRACTOR has developed and continues to maintain a comprehensive written security program reflecting the foregoing, which shall be provided to EXABEAM annually. Without limiting the foregoing, such security program shall detail required common controls, such as periodic secure coding training, static and dynamic testing performed, risk determinations for vulnerabilities and applications, and checkpoints in the software delivery process to ensure security testing is performed. Safeguards shall include, but are not limited to, installation of back-up and data-loss prevention software on endpoints that receive access to Protected Data. CONTRACTOR shall maintain controls to ensure its security posture is maintained, such as patch management, virus and malware prevention, backups, and standard equipment builds and configurations. Solutions must be updated to ensure that only most current versions are used. CONTRACTOR agrees to comply with all EXABEAM policies and procedures, which may be communicated to CONTRACTOR from time to time.
4.2 CONTRACTOR shall minimize the use of Protected Data to the extent possible, maintain Encryption of Protected Data at rest and in transit, on any device that stores or processes information, regardless of whether Protected Data is intended to be on the device or not. For the purposes of this Policy, “Encryption” means accepted industry standard solutions that are commercially reasonable and commercially available from industry recognized vendors, with preference given to a current minimum of AES (advanced encryption standard) and a minimum key length of 128 bits. CONTRACTOR shall periodically review the encryption standard that is being used to ensure compliance with this Section. Without limiting the foregoing, CONTRACTOR shall not transfer any Protected Data electronically from one location to another unless CONTRACTOR utilizes a digital certificate on the web server to enable the use of SSL and HTTPS protocols such that all internet transfers of data and screen images shall be encrypted. The data packets containing Protected Data shall only be decrypted inside CONTRACTOR’s firewall; all data must be transferred across the internet via encrypted packets. A digital certificate on the web server shall be used to enable the use of TLS 1.2 or higher as previous versions will become obsolete and HTTPS protocols to allow for all internet transfers of data and screen images to be encrypted. CONTRACTOR shall not transmit Protected Data via any wireless technology, e-mail, or the internet unless the connection is encrypted using industry standard algorithms or mechanisms that have not been deprecated or otherwise been shown to be vulnerable to attack. CONTRACTOR shall maintain appropriate technological, procedural, and administrative measures so that all Protected Data is encrypted when in transit across the public internet between CONTRACTOR and EXABEAM. Data stores for passwords and PINs must be configured to provide the highest level of integrity possible. Passwords and PINs (including nonhuman and temporary passwords/PINs) must be stored in an encrypted format.
4.3 CONTRACTOR will use multi-factor authentication for any access to Protected Data, including but not limited to any remote access connections or any application or service involving externally facing customer data.
4.4 CONTRACTOR will maintain a record retention process and business continuity plan for all Protected Data. CONTRACTOR shall provide these policies and plans to EXABEAM upon request.
4.5 CONTRACTOR shall provide commercially reasonable assistance as EXABEAM reasonably requests (taking into account the nature of processing and the information available to CONTRACTOR) to EXABEAM in relation to: (i) EXABEAM’s obligations under Data Protection Legislation with respect to data protection impact assessments (as such term is defined in the GDPR); (ii) notifications to the Supervisory Authority and/or communications to Data Subjects by EXABEAM in response to any Security Incident (as defined below); and (iii) EXABEAM’s compliance with its obligations under the GDPR with respect to the security of processing.\
4.6 CONTRACTOR will segregate the internet environment used to provide the Solution to EXABEAM from the internet environment used by internal CONTRACTOR personnel. CONTRACTOR shall keep all Protected Data physically and logically separated from other Protected Data. For clarity, CONTRACTOR shall maintain physical and logical separation for each client, customer, or Affiliate’s Protected Data provided by EXABEAM. CONTRACTOR will create its firewall rules based on the principle of least access needed. For clarity, firewall(s) will only pass the traffic necessary for the Solution to function and any unnecessary traffic will be blocked.
4.7 CONTRACTOR, at its sole cost and expense, will retain an independent third party to conduct penetration testing of the environment on at least annual basis with remediation and patching of discovered vulnerabilities. CONTRACTOR will use a reputable third party to conduct such testing that is certified by recognized industry standards as being qualified to perform such penetrating testing. CONTRACTOR shall provide the results of any such testing to EXABEAM and promptly take appropriate action to remedy any weaknesses, including, but not limited to, complying with EXABEAM’s recommendations to remediate and patch vulnerabilities in accordance with the following timelines based on level of criticality: 3 days for critical, 4 weeks for high, and 6 months for medium.
4.8 CONTRACTOR shall not use any mobile device, such as smartphone, USB Drive, flash memory card, and/or floppy drive for storage or processing of Protected Data without prior written approval from EXABEAM.
4.9 CONTRACTOR shall monitor network traffic patterns and correlate logs to monitor for suspicious traffic via one or more processes (e.g. Security Information and Event Management or SIEM software).
4.10 CONTRACTOR shall ensure that audit trails are enabled and active for systems and applications used to access, store, process, or transmit Protected Data. CONTRACTOR shall also establish a process for linking all access to such systems and applications. Additionally, CONTRACTOR shall ensure that security policies and procedures are in place to review security logs on a daily or weekly basis that follow-up to exceptions is required. System security reports for CONTRACTOR’s network and Solution will be provided to EXABEAM upon EXABEAM’s request. Upon EXABEAM’s request, CONTRACTOR will make available independent third-party audit reports pertaining to the systems involved in supporting the processing of Protected Data.
4.11 CONTRACTOR will notify EXABEAM in advance of any material changes in its system or technology environment, including changes to the physical location where data is stored or primary services are performed. EXABEAM will assess changes to identify whether the change impacts its compliance with applicable regulatory requirements. EXABEAM will notify CONTRACTOR of remediation efforts necessary to address any changes which result in noncompliance.
4.12 CONTRACTOR shall maintain controls to ensure the physical safety and security of its facilities and systems, such as uniquely identifying perimeter access controls (e.g. smartcards or biometric systems) and surveillance. Access to areas containing Protected Data shall be restricted based on the principle of least privilege. Access to server rooms and data centers shall be secured by multi-factor authentication.
4.13 Certifications. CONTRACTOR shall use external auditors to verify the adequacy of its security measures. This audit will be performed: (i) at least annually; (ii) according to Service Organization Control (SOC) 2 Trust Services Principles or such other comparable standards and (iii) by an independent third party authorized to perform such audits in the relevant industry at CONTRACTOR’s selection and expense. CONTRACTOR shall provide updates on workstation compliance and certification status to EXABEAM on a quarterly basis. CONTRACTOR will use only securely configured, corporate-owned devices (i.e. non-BYOD or hybrid work/personal-use devices) to connect to EXABEAM networks and systems or to access, process, or use Protected Data.
4.14 Audit Procedure. CONTRACTOR shall provide reasonable cooperation and assistance to EXABEAM and/or its auditors to allow EXABEAM to meet applicable requirements under the Data Protection Legislation. In order for EXABEAM to exercise its right of audit under the Data Protection Legislation, CONTRACTOR will provide upon request: (i) an audit report not older than 12 months by a registered and independent external auditor demonstrating that CONTRACTOR’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard such as ISO 27001 or SOC2); and (ii) additional information in CONTRACTOR’s possession or control which relates to the data processing activities carried out by CONTRACTOR under this Policy, as required, and requested by an EU supervisory authority.
EXABEAM shall have the right, no more than once annually, to audit and inspect CONTRACTOR, and CONTRACTOR’s subcontractors (if any), to ensure compliance with the terms of the Agreement including, but not limited to, compliance with this Policy; provided, however, that EXABEAM may audit more than once annually in the event of a security breach. CONTRACTOR agrees to cooperate with EXABEAM with respect to any such audit or inspection, which may include providing EXABEAM with all information necessary to demonstrate compliance with this Policy.
EXABEAM shall give CONTRACTOR reasonable notice of any audit or inspection to be conducted under this Policy and shall make reasonable endeavors to avoid causing (or, if cannot avoid, to minimize) any disruption to CONTRACTOR’s business while its personnel are on those premises in the course of such audit or inspection; provided, however, that the aforementioned notice requirement will not apply in the event of a security breach, or if CONTRACTOR is in material breach of any of its obligations under this Policy, the Agreement, or any Data Protection Legislation.
4.15. Records. CONTRACTOR shall, as required by Data Protection Legislation, make available to EXABEAM such information in CONTRACTOR’s possession or control as EXABEAM may reasonably request in order to demonstrate CONTRACTOR’s compliance with the obligations of data processors under the Data Protection Legislation in relation to its processing of Protected Data.
4.16 Deletion. As soon as reasonably practicable following, and in any event within thirty (30) days (or sooner upon request by EXABEAM) of termination or expiration of the Agreement or any applicable term thereunder, CONTRACTOR will delete all of CUSTOMER’s Protected Data (including copies thereof) received, accessed, or processed pursuant to this Policy. Notwithstanding, CONTRACTOR shall delete all Protected Data upon written request by EXABEAM. CONTRACTOR shall provide a certification of data destruction promptly, but in no event later than ten (10) days, upon destruction.
Measures to delete Protected Data shall, at a minimum, include:
(a) burning, pulverizing, or shredding papers containing Protected Data so that the information cannot practicably be read or reconstructed;
(b) ensuring the destruction or erasure of electronic media containing Protected Data so that the information cannot practicably be read or reconstructed; and/or
(c) Ensuring that any third party who performs the activities described in (a) and (b) on behalf of CONTRACTOR above does so in a manner consistent with this Policy.
CONTRACTOR shall ensure that it does not retain Protected Data unless otherwise mandated under this Policy or applicable law. Subject to the foregoing, CONTRACTOR’s disposal policy shall require that such information is reviewed and destroyed on a routine basis, which shall be no less than weekly.
4.17 PCI DSS. CONTRACTOR shall maintain compliance with the PCI DSS in accordance with the published PCI DSS. CONTRACTOR shall maintain such PCI compliance on an annual basis, at CONTRACTOR’s own cost, and, upon request, provide EXABEAM with the following adequate documentation to demonstrate its compliance with such standards. EXABEAM shall have the right to audit CONTRACTOR annually in order to validate PCI DSS compliance, including completing any third-party audit required as part of a forensic investigation. This right to audit shall be in addition to any other audit rights set out herein.
4.18 CCPA. If CONTRACTOR processes Protected Data of California residents, CONTRACTOR will strictly comply with CCPA. Specifically, CONTRACTOR agrees that: (a) CONTRACTOR acts solely as service provider (as defined in CCPA) in relation to Protected Data of California residents, and EXABEAM alone determines the purposes and means of the processing of Protected Data: (b) CONTRACTOR will not sell (as defined in CCPA) Protected Data of California residents, and the parties acknowledge and agree that EXABEAM does not sell Protected Data to CONTRACTOR in connection with the services. For the purposes of CCPA compliance, CONTRACTOR certifies that CONTRACTOR understands and will comply with the requirements and restrictions set forth in this Policy and, with respect to any Protected Data subject to CCPA, will not retain, use, or disclose the Protected Data: (1) for any purpose other than for the specific purpose of performing the services specified in the Agreement; or (2) outside the direct business relationship between EXABEAM and CONTRACTOR.
5. BREACH NOTIFICATION.
CONTRACTOR maintains security incident response policies and procedures and shall, to the extent permitted by law: (i) promptly, and in no event more than twenty-four (24) hours after becoming aware, notify EXABEAM of any actual or suspected breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Protected Data transmitted, stored or otherwise processed by CONTRACTOR (a “Security Incident”); (ii) taking into account the nature of processing and the information available to CONTRACTOR at the time it became aware of the Security Incident, take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident; and (iii) provide commercially reasonable cooperation and assistance during such investigation to remediate such occurrence.
6. CONTRACTOR PERSONNEL.
6.1 CONTRACTOR shall ensure its personnel involved in the processing of Protected Data are informed of the confidential nature of the Protected Data, have received appropriate training regarding their responsibilities, and have executed written confidentiality agreements. Without limiting the foregoing, CONTRACTOR shall implement and maintain an ongoing security awareness program to educate and train employees and authorized subcontractors, no less than annually, that materially address the security requirements of this Policy and applicable law.
6.2 CONTRACTOR shall ensure that access to Protected Data is limited to personnel involved in the provision of the Solution and in accordance with this policy and the Agreement. User authorization will not follow less than industry best practices, adhering to the concepts of least privilege access, business need to know individual accountability, and separation of duties when utilizing and maintaining a strong authentication mechanism. Application and operation systems default accounts and passwords must be disabled or changed on production systems that support the Solution provided to EXABEAM prior to CUSTOMER putting such system(s) into production. Upon request from EXABEAM, a report(s) will be provided of current system users and their access. Users no longer requiring access to the system will be removed immediately.
6.3 CONTRACTOR shall take commercially reasonable steps to ensure the reliability of any CONTRACTOR personnel engaged in the Processing of Protected Data.
6.4 CONTRACTOR has appointed a data protection officer and governance team that it shall provide to EXABEAM.
6.5 CONTRACTOR shall comply with all applicable local, state, and federal laws in conducting background check verifications. CONTRACTOR agrees that it shall, at a minimum, conduct the following background verifications for all CONTRACTOR personnel: (a) identification verification; (b) legal right to work in assigned country; (c) address verification; (d) employment verification of the longer the last two (2) employers or last three (3) years; (e) politically exposed person checks (PEP); (f) credit/bankruptcy checks; (f) dictatorship and media checks; (g) regulatory checks: (h) education verification, including verification of degrees, certificates, and/or diplomas; (i) federal United States felony search for the past seven (7) years (or the local equivalent for international CONTRACTOR personnel); (j) federal and country misdemeanor and felony check for the past seven (7) years (or the local equivalent for international CONTRACTOR personnel; (k) ensure that each CONTRACTOR personnel has been screened for the following: Department of Justice Sex Offender, Healthcare Sanctions (FCIS) (including the Health and Human Services Office of Inspector General, General Services Administration, Drug Enforcement Administration, Food and Drug Administration, Office of Research Integrity, TRICARE, and FDA Debarment), Global sanctions and enforcement (including Federal Bureau of Investigation, US Drug Enforcement Administration, US Department of Justice, United Nations Sanctions, US Embargo, US Defense Trade Controls, European Asset Freeze, Office of Foreign Assets Control, Federal Deposit Insurance Corporation, Financial Industry Regulatory Authority, Inc., US Securities and Exchange Commission, European Union Asset Freeze, and World Bank).
CONTRACTOR’s personnel shall not: (a) use, possess, distribute, purchase, or sell drugs or alcohol (except with proper authorization) while on EXABEAM premises or while engaged in EXABEAM business; (b) report to and/or perform work for or on behalf of EXABEAM with unauthorized drugs or alcohol in excess of .04% B.A.C. in their body; or (c) refuse to submit to routine searches of their person, their personal property, and EXABEAM or CONTRACTOR assigned property while entering on or leaving EXABEAM premises. CONTRACTOR shall perform drug testing on personnel going on-site to EXABEAM’s premises or who are engaged in EXABEAM business.
CONTRACTOR agrees to remove and replace, for the purposes of fulfilling its obligations to EXABEAM under the Agreement, any of its personnel found to be in violation of, or reasonably suspected by EXABEAM to be in violation of, the foregoing.
7.1 Subcontracting. CONTRACTOR shall not appoint subcontractors or any third parties to fulfill its contractual obligations under the Agreement or this Policy without EXABEAM’s prior written consent.
8. DATA SUBJECT REQUESTS; DELETION.
Where required under Data Protection Legislation, CONTRACTOR shall promptly notify EXABEAM if it receives a request from a Data Subject to access, rectify or erase that person’s Protected Data or if a Data subject objects to the processing of, or makes a data portability request in respect of, such Protected Data (together, “Data Subject Request”). CONTRACTOR shall provide commercially reasonable efforts to assist EXABEAM in responding to a Data Subject Request, provided that EXABEAM has instructed EXABEAM to do so. CONTRACTOR will not independently respond to requests from EXABEAM’s end users without EXABEAM’s prior written consent, except to confirm that the request relates to EXABEAM. To the extent EXABEAM does not have the ability to address a Data Subject Request, CONTRACTOR shall, upon EXABEAM’s request, provide reasonable assistance to facilitate a response to such Data Subject Request. EXABEAM agrees to pay CONTRACTOR the applicable fees for providing such assistance, at CONTRACTOR’s standard rates provided by CONTRACTOR to EXABEAM.
9.1 Interpretation. Except as amended by this Policy, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this Policy, this Policy shall apply so far as the subject matter concerns the processing of Protected Data.
9.2 Severability. If any provision of this Policy is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed, and the remainder of terms will remain in full effect.
9.3 Governing law and jurisdiction. This Policy is governed by the law of the Agreement.
9.4 Indemnification. Notwithstanding any limitation of liability provided in this or any other agreements, including statements of work, between the parties, CONTRACTOR shall indemnify, defend, and hold harmless EXABEAM and its officers, trustees, employees, affiliates, agents, subcontractors, and any of its customers, from any and all claims, penalties, fines, costs, liabilities, or damages, including but not limited to reasonable attorney fees, incurred by EXABEAM arising from or in connection with: (i) CONTRACTOR’s violation of any obligations under this Policy; or (ii) any government fines and penalties, or third party claims, damages, fines, costs, or other related harm associated with a breach of violation of applicable law. CONTRACTOR further agrees to indemnify and hold EXABEAM, or in such case that EXABEAM functions as a processor to one or more customers, each and every one of its customers harmless from any and all liability, damages, costs (including reasonable attorney fees and costs) and expenses imposed upon or asserted against EXABEAM and any of its customers arising out of any claims, demands, awards, settlements, fines, or judgments relating to CONTRACTOR’s access, use, or disclosure of Protected Data contrary to the provisions of this Policy, Agreement, or applicable law. Notwithstanding anything to the contrary in the Agreement, any breach of this Policy by CONTRACTOR and the foregoing indemnification obligations shall not be subject to any limitation of liability set forth in the Agreement.
STANDARD CONTRACTUAL CLAUSES
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of Protected Data to processors established in third countries which do not ensure an adequate level of data protection.
EXABEAM (the data exporter)
And CONTRACTOR (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 Protected Data specified in Appendix 1.
Clause 1 Definitions.
For the purposes of the Clauses:
1.1 ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. “Protected Data” shall have the meaning ascribed to it in the Vendor Data Security Policy, which includes but is not limited to personal data;
1.2 ‘the data exporter’ means the controller who transfers the Protected Data;
1.3 ‘the data importer’ means the processor who agrees to receive from the data exporter Protected Data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
1.4 ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer, Protected Data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of any applicable written subcontract;
1.5 ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of Protected Data applicable to a data controller in the Member State in which the data exporter is established;
1.6 ‘technical and organizational security measures’ means those measures aimed at protecting Protected Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2 Details of the transfer.
The details of the transfer applicable are specified in Appendix 1, which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
3.1. The data subject can enforce against the data exporter this Clause, Clause 4.2 to 4.10, Clause 5.1 to 5.5, and 5.7 to 5.10, Clause 6.1 and 6.2, Clause 7, Clause 8.2, and Clauses 9 to 12 as a third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5.1 to 5.5 and 5.7, Clause 6, Clause 7, Clause 8.2, and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the sub-processor this Clause, Clause 5.1 to 5.5 and 5.7, Clause 6, Clause 7, Clause 8.2, and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so elects and if permitted by national law.
Clause 4 Obligations of the data exporter
The data exporter agrees and warrants:
4.1 that the processing, including the transfer itself, of the Protected Data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
4.2 that it has instructed and throughout the duration of the Protected Data-processing services will instruct the data importer to process the Protected Data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
4.3 that the data importer will provide sufficient guarantees with respect to its technical and organizational security measures;
4.4 that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect Protected Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
4.5 that it will ensure compliance with the security measures;
4.6 that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
4.7 to forward any notification received from the data importer or any sub-processor pursuant to Clause 5.2 and Clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
4.8 to make available to the data subjects upon request a copy of the Clauses and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial or confidential information, in which case it may remove such information;
4.9 that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the Protected Data and the rights of data subject as the data importer under the Clauses; and
4.10 that it will ensure compliance with Clause 4.1 to 4.9.
Clause 5 Obligations of the data importer
The data importer agrees and warrants:
5.1 to process the Protected Data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to promptly inform he data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
5.2 that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract, and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
5.3 that it has implemented the technical and organizational security measures in accordance with industry best practices before processing the Protected Data transferred;
5.4 that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the Protected Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorized access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;
5.5 to deal promptly and properly with all inquiries from the data exporter relating to its processing of the Protected Data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
5.6 at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications, bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
5.7 to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial or confidential information, in which case it may remove such information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where data subject is unable to obtain a copy from the data exporter;
5.8 that, in the event of sub-processing, it has previously informed the data exporter obtained its prior written consent;
5.9 that the processing services by the sub-processor will be carried out in accordance with Clause 11;
5.10 to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter as requested.
Clause 6 Liability
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with 6.1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in 6.1 and 6.2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Clause 7 Mediation and jurisdiction
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (i) to refer the dispute to mediation by an independent person or, where applicable, by the supervisory authority; or (ii) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8 Cooperation with supervisory authorities
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5.2.
Clause 9 Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
Clause 11 Sub-processing
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with to the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as set forth in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in 11.1 shall be governed by the law of the Member State in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5.10, which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12 Obligation after the termination of Protected Data-processing services
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the Protected Data transferred and the copies thereof to the data exporter or shall destroy all the Protected Data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the Protected Data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the Protected Data transferred and will not actively process the Protected Data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in 12.1.
TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix through a separate written agreement.
The data exporter is EXABEAM, INC. (“EXABEAM”).
The data importer is the party identified in the Agreement (“CONTRACTOR”)
CONTRACTOR is engaged in providing products and/or services to EXABEAM.
The Protected Data transferred may concern the following categories of data (only applicable if the data subjects are natural persons):
TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4.4 and 5.3:
As set forth in the Policy.