Version 1.0 (May 2018)
The parties have agreed to enter into this DPA to ensure that adequate safeguards are put in place with respect to the protection of such Personal Data as required by EU Data Protection Laws.
If the Customer entity is not a party to the Main Agreement directly with Appenate, but is instead a customer indirectly via an authorized vendor of Appenate services, this DPA is not valid and is not legally binding. Such entity should contact the authorized vendor to discuss whether any amendment to its agreement with that vendor may be required.
DATA PROCESSING TERMS
In the course of providing the Service to the Customer pursuant to the Main Agreement, Appenate may Process Personal Data on behalf of the Customer. Appenate agrees to comply with the following provisions with respect to any Personal Data submitted by or for the Customer to Appenate or collected and processed by or for the Customer using Appenate’s services.
The parties agree that the obligations under this DPA that are specific to the GDPR shall not apply until the GDPR has come into full force and effect.
1.1. The following definitions are used in this DPA:
a) “Adequate Country” means a country or territory that is recognized under EU Data Protection Laws as providing adequate protection for Personal Data;
b) “Affiliate” means, with respect to a party, any corporate entity that, directly or indirectly, Controls, is Controlled by, or is under Common Control with such party (but only for so long as such Control exists);
c) “Appenate Group” means Appenate and any of its Affiliates;
d) “Customer Group” means the Customer and any of its Affiliates established and/or doing business in the EEA, or UK;
e) “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR ;
f) “GDPR” means the General Data Protection Regulation (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-flow of data);
g) “Personal Data” means all data which is defined as ‘personal data’ under EU Data Protection Laws and to which EU Data Protection Laws apply and which is provided by the Customer to Appenate, and accessed, stored or otherwise processed by Appenate as a data processor as part of its provision of the Service to the Customer; and
h) “Processing”, “data controller”, “data subject”, “supervisory authority” and “data processor” shall have the meanings ascribed to them in EU Data Protection Laws.
1.2 An entity “Controls” another entity if it: (a) holds a majority of the voting rights in it; (b) is a member or shareholder of it and has the right to remove a majority of its board of directors or equivalent managing body; (c) is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or (d) has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are treated as being in “Common Control” if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.
2. Status of the parties
2.1 The type of Personal Data processed pursuant to this DPA and the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, are described in Annex 1.
2.2 Each party warrants in relation to Personal Data that it will comply (and will procure that any of its personnel comply and use commercially reasonable efforts to procure that its sub-processors’ comply), with EU Data Protection Laws. As between the parties, the Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Customer acquired Personal Data.
2.3 In respect of the parties’ rights and obligations under this DPA regarding the Personal Data, the parties hereby acknowledge and agree that the Customer is the data controller and Appenate is the data processor, and accordingly Appenate agrees that it shall process all Personal Data in accordance with its obligations pursuant to this DPA.
2.5 Each party shall appoint an individual within its organization authorized to respond from time to time to enquiries regarding the Personal Data and each party shall deal with such enquiries promptly.
3. Appenate obligations
3.1 With respect to all Personal Data, Appenate warrants that it shall:
(a) only process Personal Data in order to provide the Service, and shall act only in accordance with: (i) this DPA, (ii) the Customer’s written instructions as represented by the Main Agreement and this DPA, and (iii) as required by applicable laws;
(b) as soon as reasonably practicable upon becoming aware, inform the Customer if, in Appenate’s opinion, any instructions provided by the Customer under clause 3.1(a) infringe the GDPR;
(c) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of Personal Data, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. Such measures include, without limitation, the security measures set out in Annex 3;
(d) take reasonable steps to ensure that only authorized personnel have access to such Personal Data and that any persons whom it authorizes to have access to the Personal Data are under obligations of confidentiality;
(e) as soon as reasonably practicable upon becoming aware, notify the Customer of any breach of security leading to the accidental loss, destruction or damage or unlawful processing, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by Appenate, its sub-processors, or any other identified or unidentified third party (a “Security Breach”);
(f) promptly provide the Customer with reasonable cooperation and assistance in respect of a Security Breach and all reasonable information in Appenate’s possession concerning such Security Breach insofar as it affects the Customer, including the following to the extent then known:
(i) the possible cause and consequences for the Data Subjects of the Security Breach;
(ii) the categories of Personal Data involved;
(iii) a summary of the possible consequences for the relevant data subjects;
(iv) a summary of the unauthorised recipients of the Personal Data; and
(v) the measures taken by Appenate to mitigate any damage and adverse effects ;
(g) not make any public announcement about a Security Breach (a “Breach Notice”) without the prior written consent of the Customer, unless required by applicable law;
(h) promptly notify the Customer if it receives a request from a data subject to access, rectify or erase that individual’s Personal Data, or if a data subject objects to the processing of, or makes a data portability request in respect of, such Personal Data (each a “Data Subject Request”). Appenate shall not respond to a Data Subject Request without the Customer’s prior written consent except to confirm that such request relates to the Customer, to which the Customer hereby agrees. To the extent that the Customer does not have the ability to address a Data Subject Request, then upon the Customer’s request Appenate shall provide reasonable assistance to the Customer to facilitate such Data Subject Request to the extent able and in line with applicable law. The Customer shall cover all costs incurred by Appenate in connection with its provision of such assistance;
(i) other than to the extent required to comply with applicable law, as soon as reasonably practicable following termination or expiry of the Main Agreement or completion of the Service, Appenate will delete all Personal Data (including copies thereof) processed pursuant to this DPA;
j) taking into account the nature of processing and the information available to Appenate, provide such assistance to the Customer as the Customer reasonably requests in relation to Appenate’s obligations under EU Data Protection Laws with respect to:
(i) data protection impact assessments (as such term is defined in the GDPR);
(ii) notifications to the supervisory authority under EU Data Protection Laws and/or communications to data subjects by the Customer in response to any Security Breach; and
(iii) the Customer’s compliance with its obligations under the GDPR with respect to the security of processing; provided that the Customer shall cover all costs incurred by Appenate in connection with its provision of such assistance.
4.1 The Customer grants a general authorization to Appenate to appoint third party data center operators, and outsourced marketing, business, engineering and customer support providers as sub-processors to support the performance of the Service.
4.2 Appenate shall maintain a list of current sub-processors for the Service, including a history of revisions, the identities of those sub-processors and their country of location at /sub-processors. Upon the appointment of new or replacement of sub-processor(s), Appenate shall update the list of current sub-processors and shall send email notification to the Customer prior to the new or replacement sub-processor(s) processing any Personal Data in connection with the provision of the Service.
(a) If the Customer has a reasonable objection to any new or replacement sub-processor, it shall notify Appenate of such objections in writing within ten (10) days of the notification and the parties will seek to resolve the matter in good faith. If Appenate is reasonably able to provide the Service to the Customer in accordance with the Main Agreement without using the sub-processor and decides in its discretion to do so, then the Customer will have no further rights under this clause 4.2 in respect of the proposed use of the sub-processor. If Appenate requires use of the sub-processor in its discretion and is unable to satisfy the Customer as to the suitability of the sub-processor or the documentation and protections in place between Appenate and the sub-processor within ninety (90) days from the Customer’s notification of objections, the Customer may within thirty (30) days following the end of the ninety (90) day period referred to above, terminate the applicable Service subscription(s) with at least thirty (30) days written notice, solely with respect to the service(s) to which the proposed new sub-processor’s processing of Personal Data relates. If the Customer does not provide a timely objection to any new or replacement sub-processor in accordance with this clause 4.2, the Customer will be deemed to have consented to the sub-processor and waived its right to object. Appenate may use a new or replacement sub-processor whilst the objection procedure in this clause 4.2 is in process.
4.3 Appenate will ensure that any sub-processor it engages to provide an aspect of the Service on its behalf in connection with this DPA does so only on the basis of a written contract which imposes on such sub-processor terms substantially no less protective of Personal Data than those imposed on Appenate in this DPA (the “Relevant Terms”).
5. Audit and records
5.1 Appenate shall, in accordance with EU Data Protection Laws, make available to the Customer such information in Appenate’s possession or control as the Customer may reasonably request with a view to demonstrating Appenate’s compliance with the obligations of data processors under EU Data Protection Law in relation to its processing of Personal Data.
5.2 The Customer may exercise its right of audit under EU Data Protection Laws in relation to Personal Data, through Appenate providing:
(a) an audit report not older than eighteen (18) months, prepared by an independent external auditor demonstrating that Appenate’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard; and
b) additional information in Appenate’s possession or control to an EU supervisory authority when it requests or requires additional information in relation to the processing of Personal Data carried out by Appenate under this DPA.
6. Data transfers
6.1 To the extent any processing of Personal Data by Appenate takes place in any country outside the EEA (except if in an Adequate Country), the parties agree that the standard contractual clauses approved by the EU authorities under EU Data Protection Laws and set out in Annex 2 will apply in respect of that processing, and Appenate will comply with the obligations of the ‘data importer’ in the standard contractual clauses and the Customer will comply with the obligations of the ‘data exporter’.
6.2 The Customer acknowledges and accepts that the provision of the Service under the Main Agreement may require processing of Personal Data by sub-processors in countries outside the EEA.
6.3 If, in the performance of this DPA, Appenate transfers any Personal Data to a sub-processor located outside of the EEA (without prejudice to clause 4), Appenate shall in advance of any such transfer ensure that a legal mechanism to achieve adequacy in respect of that processing is in place, such as:
(a) the requirement for Appenate to execute or procure that the sub-processor execute to the benefit of the Customer standard contractual clauses approved by the EU authorities under EU Data Protection Laws and set out in Annex 2;
(b) the requirement for the sub-processor to be certified under the EU-U.S. Privacy Shield Framework; or
(c) the existence of any other specifically approved safeguard for data transfers (as recognised under EU Data Protection Laws) and/or a European Commission finding of adequacy.
6.4 The following terms shall apply to the standard contractual clauses set out in Annex 2:
(a) The Customer may exercise its right of audit under clause 5.1(f) of the standard contractual clauses as set out in, and subject to the requirements of, clause 5.2 of this DPA; and
(b) Appenate may appoint sub-processors as set out, and subject to the requirements of, clauses 4 and 6.3 of this DPA.
7.1 This DPA is without prejudice to the rights and obligations of the parties under the Main Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Main Agreement, the terms of this DPA shall prevail so far as the subject matter concerns the processing of Personal Data.
7.2 Appenate’s liability under or in connection with this DPA (including under the standard contractual clauses set out in Annex 2) is subject to the limitations on liability contained in the Main Agreement.
7.3 This DPA does not confer any third-party beneficiary rights, it is intended for the benefit of the parties hereto and their respective permitted successors and assigns only, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
7.4 With the exemption of clauses 7 and 9 in Annex 2, this DPA and any action related thereto shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, without giving effect to any conflicts of laws principles. With the exemption of the jurisdiction clauses in Annex 2, the parties consent to the personal jurisdiction of, and venue in, the courts of Brisbane, Queensland.
7.5 This DPA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA. Each party represents and warrants to the other that the execution and delivery of this DPA, and the performance of such party’s obligations hereunder, have been duly authorized and that this DPA is a valid and legally binding agreement on each such party, enforceable in accordance with its terms.
Annex 1 – Details of Personal Data and Processing Activities
This Annex provides details of the Processing of Personal Data as required by Article 28(3) GDPR.
(a) The personal data comprises: in relation to visitors of the Customer’s online properties identification data, professional life data, personal life data, connection data, or localization data (including IP addresses). The Customer, its online visitors and/or other partners may also upload content to the Customer’s online properties which may include personal data and special categories of data, the extent of which is determined and controlled by the Customer in its sole discretion. Such special categories of data include, but may not be limited to, information revealing racial or ethnic origins, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning an individual’s health or sexual and gender orientation.
(b) The duration of the processing will be: until the earliest of (i) expiry/termination of the Main Agreement, or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Main Agreement (to the extent applicable);
(c) The processing will comprise: Only processing necessary to provide the Service to the Customer, pursuant to the Main Agreement;
(d) The purpose(s) of the processing is/are: necessary for the provision of the Service;
(e) Personal data may concern the following data subjects:
- Prospective customers, customers, resellers, referrers, business partners, and vendors of the Customer (who are natural persons);
- Employees or contact persons of the Customer’s prospective customers, customers, resellers, referrers, sub-processors, business partners, and vendors (who are natural persons);
- Employees, agents, advisors, and freelancers of the Customer (who are natural persons); and/or
- Natural persons authorized by the Customer to use the Service.
Annex 2 – Standard Contractual Clauses (processors)
The European Commission decision 2010/87/EU sets out the following standard contractual clauses for the transfer of personal data to data processors established in third countries which do not ensure an adequate level of data protection.
Both 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:
a) “personal data”, “special categories of data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority” shall have the same meaning as in EU Data Protection Laws 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;
b) the “data exporter” means the entity who transfers the personal data;
c) the “data importer” means the processor who agrees to receive from the data exporter personal 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 EU Data Protection Laws 95/46/EC;
d) 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 personal 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 the written subcontract;
e) the “Applicable Laws” means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which any Company Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which any Company Group Member is subject to any other Data Protection Laws; and
f) “technical and organisational security measures” means those measures aimed at protecting personal data against accidental or unlawful processing or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2. Details of the transfer
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.
3. Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4.1(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), 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(a) to (e) and (g), 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 expressly wishes and if permitted by national law.
4. Obligations of the data exporter
The data exporter agrees and warrants:
a) that the processing, including the transfer itself, of the personal 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;
b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 3 to this contract;
d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised 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;
e) that it will ensure compliance with the security measures;
f) 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 EU Data Protection Laws 95/46/EC;
g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, 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 information, in which case it may remove such commercial information;
i) 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 personal data and the rights of data subject as the data importer under the Clauses; and
j) that it will ensure compliance with Clause 4(a) to (i).
5. Obligations of the data importer
The data importer agrees and warrants:
a) to process the personal 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 inform promptly the 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;
b) 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;
c) that it has implemented the technical and organisational security measures specified in Appendix 3 before processing the personal data transferred;
d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal 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 unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
f) 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;
g) 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 information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
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 paragraph 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 or 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 paragraphs 1 and 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.
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:
a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
b) 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.
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 paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
9. Governing law
The Clauses shall be governed by the laws of the Member State in which the data exporter is established.
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 Clause.
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 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 fulfil 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 laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 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 paragraph 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 5.1(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
12. Obligation after the termination of personal 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 personal data transferred and the copies thereof to the data exporter or shall destroy all the personal 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 personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and is agreed 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.
Data exporter The data exporter is: the (i) legal entity that has created an account with Appenate Pty Ltd (“Appenate”) for the provision of the Service, and executed the Clauses as a data exporter and, (ii) all affiliates of such entity established within the EEA, which have purchased services from Appenate or its Affiliates.
Data importer The data importer is: Appenate which processes Personal Data upon the instruction of the data exporter in accordance with the terms of the Main Agreement between the data exporter and Appenate.
Data subjects The personal data transferred concern the following categories of data subjects: The data exporter may submit Personal Data to Appenate and its Affiliates, the extent of which is determined and controlled by the 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:
- Prospective customers, customers, resellers, referrers, business partners, and vendors of the data exporter (who are natural persons);
- Employees or contact persons of the data exporter’s prospective customers, customers, resellers, referrers, subcontractors, business partners, and vendors (who are natural persons);
- Employees, agents, advisors, and freelancers of the data exporter (who are natural persons); and/or
- Natural persons authorized by the data exporter to use the services provided by Appenate to the data exporter.
Categories of data The personal data transferred concern the following categories of data: The data exporter may submit Personal Data to Appenate and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data:
- Names, titles, position, employer, contact information (email, phone, fax, physical address etc.), identification data, professional life data, personal life data, connection data, or localization data (including IP addresses).
Special categories of data (if appropriate) The personal data transferred concern the following special categories of data: The data exporter may submit special categories of data to Appenate and its Affiliates, the extent of which is determined and controlled by the data exporter in its sole discretion. Such special categories of data include, but may not be limited to, Personal Data with information revealing racial or ethnic origins, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning an individual’s health or sexual and gender orientation.
Processing operations The personal data transferred will be subject to the following basic processing activities: The objective of the processing of Personal Data by Appenate is to provide the Service, pursuant to the Main Agreement.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and is agreed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
See Annex 3
Annex 3 – Security Measures
Appenate (the data importer) currently observes the security practices described in this Annex 3. Notwithstanding any provision to the contrary otherwise agreed to by data exporter, Appenate may modify or update these practices at its discretion provided that such modification and update does not result in a material degradation in the protection offered by these practices.
Access Control: Preventing Unauthorised Service Access
- Outsourced processing: Appenate hosts the Service with outsourced cloud infrastructure providers. Additionally, Appenate maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Addendum. Appenate relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
- Physical and environmental security: Appenate hosts its Service infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.
- Authentication: Customers who interact with the Service via the user interface must authenticate before accessing non-public customer data. As of 25 May 2018, Appenate offers several password policy options for customer accounts which can apply strong password requirements to login credentials.
- Authorisation: Customer data is stored in multi-tenant storage systems accessible to Customers only via application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorisation model for the Service is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorisation to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
- Application Programming Interface (API): Our public Service APIs are accessed by using an API key, which is only available to Service administrator users.
Access Control: Preventing Unauthorised Service Use
Appenate implements industry standard access controls and detection capabilities for the internal networks that support its products.
- Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
- Intrusion detection and prevention: Appenate implemented a Web Application Firewall (WAF) solution to protect hosted customer websites and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
- Code review and analysis: Appenate employs a static code review process to increase the security of the code used to provide the Service. This code is reviewed and approved based on peer review prior to staging the code.
- Penetration testing: Appenate uses industry recognized penetration testing service providers to run fortnightly penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
Access Control: Limitations of Privilege & Authorization Requirements
- Service access: A subset of Appenate’s personnel have access to the products and to customer data via controlled interfaces. The intent of allowing access to these persons is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Employees are granted access by role, and reviews of high risk privilege grants are limited to only the most senior personnel. Personnel roles are reviewed at least every six months.
- Background checks: All Appenate employees undergo a background and references check prior to being extended a contractual offer, in accordance with the applicable laws. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
- Data in transit: Appenate uses HTTPS encryption (also referred to as SSL or TLS) for all communications and transport of data between servers and devices, both internally and externally to the Service. Appenate’s HTTPS implementation uses industry standard algorithms and certificates.
- Data at rest: Appenate uses 256 encryption to store user passwords, following industry standard practices for security. As of 25 May 2018, all stored data on the Service is encrypted at rest.
- Detection: Appenate has designed and configured Service infrastructure to log information about the system behaviour, traffic received, system authentication, and other application requests. Internal systems aggregate log data and alert appropriate employees of malicious, unintended, or anomalous activities. Appenate personnel, including security, operations, and support personnel, are responsive to known incidents.
- Response and tracking: Appenate maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, Appenate will take appropriate steps to minimize Service and Customer damage or unauthorized disclosure.
- Communication: If Appenate becomes aware of unlawful access to Customer data stored within the Service, Appenate will: 1) notify the affected Customers of the incident; 2) provide a description of the steps Appenate is taking to resolve the incident; and 3) provide status updates to the Customer contact, as Appenate deems necessary. Notification(s) of incidents, if any, will be delivered to one or more of the Customer’s contacts in a medium that Appenate selects, including via email or telephone.
- Infrastructure availability: Appenate’s infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.9% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
- Fault tolerance: Appenate’s backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple data centers.
- Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.