Data Processing Addendum
This Data Processing Addendum ("Addendum"), effective as of the DPA Effective Date (defined below), is entered into by and between 8012 Labs, LLC ("Company") and you ("Customer") (collectively the "Parties"). This Addendum (a) forms part of the Terms of Service along with other agreements you may have entered with Company governing the provision of Company's STATUS HERO application and any other related services (collectively the "Services") provided to you by Company (this "Agreement"), (b) constitutes the agreement governing the processing of Customer data by Company, and (c) shall not be construed to impose any obligations beyond those required by the GDPR.
a) Agreement to Terms. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you are lawfully able to enter into contracts and that you have the authority to bind such entity to this Addendum. In that case, "Customer" will refer to that company or other legal entity.
b) Subject Matter. This Addendum reflects the commitment of Company and Customer to abide by Applicable Data Protection Laws concerning the Processing of Customer Personal Data in connection with the Services. Customer will be the Controller or Processor of Customer Personal Data and Company will be the Processor of Customer Personal Data under Applicable Data Protection Law(s). All capitalized terms that are not expressly defined in this Data Processing Addendum will have the meanings given to them in the Agreement. Except as expressly provided herein, nothing in this Addendum shall be deemed to waive or modify any of the provisions of the Agreement, which otherwise remains in full force and effect. If and to the extent language in this Addendum or any of its Exhibits conflicts with the Agreement, this Addendum shall control.
c) Duration and Survival. This Addendum will become legally binding upon the Effective Date of the Agreement or, if later, upon the date that Customer electronically accepts, agrees or opts-in to this Addendum, and will terminate upon the later to occur of (i) termination by either party of the Agreement pursuant to the terms thereof, and (b) the Company ceasing to Processes Customer Personal Data. Notwithstanding the foregoing, any termination of this Addendum shall be without prejudice to the survival of accrued rights and liabilities of the parties and any obligations of the parties with either expressly or by implications survive termination.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
a) "Applicable Data Protection Law(s)" means the relevant data protection and data privacy laws, rules and regulations to which the Customer Personal Data are subject. "Applicable Data Protections Law(s)" shall include, but not be limited to, the EU General Data Protection Regulation 2016/679 ("GDPR") and Privacy Shield principles and requirements.
b) "Customer Personal Data" means Personal Data pertaining to Customer's end users or employees located in the European Economic Area that is Processed by Company. The Customer Personal Data and the specific uses of the Customer Personal Data are detailed in Exhibit A attached hereto, as required by the GDPR.
c) "Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
d) "DPA Effective Date" means either (i) May 25, 2018; and (ii) the date on which you accept or otherwise agree or opt-in to this Addendum, if that date is after May 25, 2018.
e) "Personal Data" shall have the meaning assigned to the terms "personal data" or "personal information" under the GDPR.
f) "Privacy Shield" means the EU-US and Swiss-US Privacy Shield Framework established by the US Department of Commerce and the European Commission.
g) "Process" or "Processing" means any operation or set of operations which is performed on data or sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
h) "Processor" means a natural or legal person, public authority, agency or other body which Processes Customer Personal Data on behalf of Customer subject to this Addendum.
i) "Security Incident(s)" means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data Processed by Company.
j) "Services" means any and all services that Company performs under the Agreement.
k) "Third Party(ies)" means any person, contractor, agent, vendor or third party company appointed by Company - or acting on behalf of Processor (i.e., sub-processors) to Process Customer Personal Data on behalf of Customer pursuant to this Agreement.
3. Data Use and Processing
a) Compliance with Laws. Customer shall ensure that it has obtained any and all authorizations and lawful bases for processing (including verifiable consent where necessary) in accordance with Applicable Data Protection Law(s) in order to provide Customer Personal Data to Company for Processing. Customer Personal Data shall be Processed in compliance with the terms of this Addendum and all Applicable Data Protection Law(s). Customer, in its use of the Services, will Process Personal Data in accordance with all Applicable Data Protection Laws. In addition, Customer shall be solely responsible for the accuracy, quality and legality of Personal Data provided to Company, and the means by which such Personal Data was obtained by Customer.
b) Documented Instructions. Company and its Third Parties shall Process Customer Personal Data only for the purpose of providing the Services as specifically authorized under the Agreement, this Addendum, or any applicable Statement of Work, and at all times in accordance with the documented instructions of Customer (unless contrary to Applicable Data Protection Laws). Unless legally prohibited from doing so, Company will inform Customer in writing if it reasonably believes that there is a conflict between Customer's instructions and Applicable Data Protection Laws or if any Third Party seeks to Process Customer Personal Data in a manner that is inconsistent with Customer's instructions.
c) Authorization to Use Third Parties. To the extent necessary to fulfill Company's contractual obligations under the Agreement or any Statement of Work, Customer hereby authorizes (i) Company to engage Third Parties and (ii) Third Parties to engage sub-processors. Any Third Party Processing of Customer Personal Data shall be consistent with Customer's documented instructions and shall comply with all Applicable Data Protection Laws.
d) Company and Third Party Compliance. Company agrees to enter into a written agreement with any Third Parties it appoints to Process Customer Personal Data that imposes on such Third Parties (and their sub-processors) data protection and security requirements for Customer Personal Data that are not less protective than those set forth in the Agreement and/or this Addendum with respect to the protection of Customer Personal Data, to the extent applicable to the nature of the services provided by such Third Party. Company shall be liable for the acts and omissions of Third Parties appointed by Company to the same extent Company would be liable if it were performing such services directly under the terms of this Addendum. Company will provide copies of any agreements with Third Parties that Customer may reasonably request from time-to-time, subject to redaction of commercial terms and other proprietary information.
e) Right to Object to Third Parties. Prior to engaging any new Third Parties that Process Customer Personal Data, Company will notify Customer of these changes by posting its proposed new Third Parties to the following website https://statushero.com/gdpr/. Company will allow Customer ten (10) calendar days to object after notice is given. It is Customer's responsibility to check this website regularly for updates. If Customer has legitimate objections to the appointment of any new Third Party that relates to Company's compliance with this Addendum, Company will make reasonable efforts to address Customer's objection. After this process, if a resolution has not been agreed to within five (5) calendar days, Company will proceed with engaging the Third Party. Failing any such resolution, Customer may terminate the part of the service performed under the Agreement that cannot be performed by Company without use of the objectionable Third Party. No refunds shall be given for any prepaid portion of the Services.
f) Confidentiality. Any person or Third Party authorized to Process Customer Personal Data must agree to maintain the confidentiality of such information or be under an appropriate statutory or contractual obligation of confidentiality.
g) Personal Data Inquiries and Requests. Company agrees to promptly comply with all reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Data granted to them under Applicable Data Protection Law(s) ("Privacy Request"). At Customer's request, Company agrees to assist Customer in answering or complying with any Privacy Request in so far as it is possible. Company may invoice Customer for costs arising from such assistance.
h) Data Protection Impact Assessment and Prior Consultation. Company agrees to provide reasonable assistance at Customer's sole expense to Customer where, in Customer's judgement, the type of Processing performed by Company is likely to result in a high risk to the rights and freedoms of natural persons (e.g., systematic and extensive profiling, Processing sensitive Personal Data on a large scale and systematic monitoring on a large scale, or where the Processing uses new technologies) and thus requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
i) Demonstrable Compliance. Company agrees to keep records of its Processing in compliance with Applicable Data Protection Law(s) and provide any necessary records to Customer to demonstrate compliance upon reasonable request.
4. Cross-Border Transfers of Personal Data
a) Cross-Border Transfers of Personal Data. Customer authorizes Company and its Third Parties to transfer Customer Personal Data across international borders, including without limitation from the European Economic Area to the United States. Any cross-border transfer of Customer Personal Data must be supported by an approved adequacy mechanism.
b) Privacy Shield Certification. Company is currently Privacy Shield certified, will maintain its Privacy Shield certification during the term of the Agreement and will Process the Customer Personal Data in accordance with at least the same level of protection as required under the applicable Privacy Shield principles. Company will provide written notification to Customer before it withdraws from or otherwise no longer maintains a current certification to the Privacy Shield. Company shall promptly notify Customer if it can no longer meet its obligations under this Section.
5. Information Security Program
a) Information Security Program. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall implement and maintain appropriate technical and organizational measures set forth in Exhibit A hereto in such a manner that its Processing of Personal Data will meet the requirements of Applicable Data Protection Law(s), ensure the protection of the rights of the data subjects, and ensure a level of security appropriate to the risk (an "Information Security Program").
6. Security Incidents
a) Security Incident Procedure. Upon becoming aware of a Security Incident, Company shall use commercially reasonable efforts to notifu Customer and provide written details of the Security Incident within forty eight (48) hours with the sufficient level of detail reasonably required to fulfill Customer's Security Incident reporting obligations under Applicable Data Protection Law(s). Where possible, such details shall include, the nature of the Security Incident, the categories and approximate number of data subjects concerned and the categories and approximate number of Customer Personal Data records concerned, the likely consequences of the Security Incident, and the measures taken or proposed to be taken to mitigate the Security Incident's possible adverse effects.
a) Audits. If Applicable Data Protection Law affords Customer an audit right, Customer (or its appointed representative) may, no more than once annually (or more frequently if required by Applicable Data Protection Laws), carry out an inspection of Company's operations and facilities for the purpose of verifying that Company is processing Personal Data in accordance with its obligations hereunder. Notwithstanding the foregoing, such audit shall consist solely of: (i) the provision by Company of written information (including, without limitation, questionnaires and information about security policies) that may include information relating to Third Parties; and (ii) interviews with Company IT employees and subcontractors. Such audit may be carried out by Customer or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality. For the avoidance of doubt no access to any part of Company’s IT system, data hosting sites or centers, or infrastructure will be permitted. Customer must provide Company no less than forty-five (45) days written notice of such intention to audit (or such shorter period if required by Applicable Data Protection Law), conduct its audit during normal business hours, and take reasonable measures necessary to prevent unnecessary disruption to Company's operations. Prior to any audit being conducted, the Parties will agree Any such audit shall be subject to Company's security and confidentiality terms and guidelines. Customer shall be responsible for all costs and expenses arising from such audit, including the reasonable costs and expenses of Company in complying with any such audit request.
8. Data Deletion
a) Data Deletion. At the expiry of termination of the Agreement, Company will, at Customer's option, delete or return all Customer Personal Data to Customer, except where Company is required to retain copies under applicable laws, in which case Company will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
Technical and Organizational Data Security Measures
The purpose of this document is to describe the principles of the technical and organizational data security measures of the Company, which Company provides for all Customers as required by the Regulation (EU 2016/679), the General Data Protection Regulation ("GDPR"). Specific Services level security descriptions are available upon request if not otherwise set forth herein. Customer specific security measures shall be subject to a separate agreement between the parties.
Company shall take the following technical and organizational security measures to protect Customer Personal Data:
1. Organizational management and dedicated staff responsible for the development, implementation, and maintenance of Company’s information security program.
2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to the Company organization, monitoring and maintaining compliance with Company policies and procedures, and reporting the condition of its information security and compliance to senior internal management.
3. Maintain Information security policies and make sure that policies and measures are regularly reviewed and where necessary, improve them.
4. Communication with Company applications utilizes cryptographic protocols such as TLS to protect information in transit over public networks. At the network edge, stateful firewalls, web application firewalls, and DDoS protection are used to filter attacks. Within the internal network, applications follow a multi-tiered model which provides the ability to apply security controls between each layer.
5. Data security controls which include logical segregation of data, restricted (e.g. role-based) access and monitoring, and where applicable, utilization of commercially available and industry-standard encryption technologies.
6. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
7. Password controls designed to manage and control password strength, and usage including prohibiting users from sharing passwords.
8. System audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review.
9. Physical and environmental security of data center, server room facilities and other areas containing client confidential information (if any) designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of Company facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
10. Operational procedures and controls to provide for configuration, monitoring, and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Company possession.
11. Change management procedures and tracking mechanisms to designed to test, approve and monitor all changes to Company technology and information assets.
12. Incident / problem management procedures to enable Company to investigate, respond to, mitigate and notify of events related to Company technology and information assets.
13. Network security controls that provide for the use of enterprise firewalls and layered DMZ architectures, and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
14. Vulnerability assessment, patch management, and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
15. Business resiliency/continuity and disaster recovery procedures, as appropriate, designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
Exhibit B – Details of Processing
Subject Matter of Processing: The provision of the Service to the Customer, and related technical support.
Duration of the Processing: The Processing will continue until the expiration or termination of the Agreement.
Nature and Purpose of the Processing: Company will process Personal Data submitted to, stored on, or sent via the Service for the purpose of providing the Service and related technical support in accordance with this Addendum.
Types of Customer Personal Data: Personal data submitted to, stored on, or sent via the Service may include, without limitation, the following categories of data: IP addresses, browser agents, email addresses, usernames, full names, browser and operating system identifiers, and any other personal data that Customer chooses to send us related during the course of our provision of the Service and technical support.
Categories of Data Subjects: Personal data submitted, stored, sent or received via the Service may concern the following categories of data subjects, without limitation: Customer's employees, contractors, and agents; the personnel of Customer's customers, suppliers and subcontractors; and any other person who transmits data via the Service.