DPA (GDPR) and CCPA
Data Protection Addendum
Last Updated: January 31, 2021
This Data Protection Addendum ("Addendum") forms part of the Terms of Service to which this Addendum is attached (the "Terms of Service") between Exigence Ltd. ("Exigence") and the customer that is a party to the Terms of Service ("Customer").
Whereas, the EU General Data Protection Regulation 2016/679 ("GDPR") effective as of 25 May 2018 (and, possibly, equivalent requirements of other Data Protection Laws), requires Controller(s) and Processor(s) of Personal Data (all, as defined in the GDPR) to define in a contract each party's responsibilities with respect to the protection of Personal Data; and
Whereas, Customer may be the Controller and/or Processor of certain Customer Personal Data (as defined below);
Whereas, in the course of the provision of the Services (as defined below), Exigence may be required to process Customer Personal Data as a Processor or a subprocessor on behalf of Customer.
Now, therefore, in consideration of the mutual obligations set out herein, the parties hereby assign the responsibilities between them with respect to protection of Customer Personal Data and agree that the terms and conditions set out below shall be added as an Addendum to the Terms of Service. Except where the context requires otherwise, references in this Addendum to the Terms of Service are to the Terms of Service as amended by, and including, this Addendum.
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms of Service. Except as modified below, the Terms of Service shall remain in full force and effect.
The terms, "Commission", "Controller", "Data Subject", "Personal Data", "Personal Data Breach", "Processing", "special categories of personal data" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
In this Addendum, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
"Applicable Laws" means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which Customer is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which Customer is subject to any other Data Protection Laws;
"Customer Personal Data" means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with the Terms of Service, including Customer Data (as such term is defined in the Terms of Service);
"Contracted Processor" means Exigence or a Subprocessor;
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
"EEA" means the European Economic Area;
"EU Data Protection Laws" means the GDPR and laws of Member States implementing or supplementing the GDPR, formerly the EU Directive 95/46/EC;
"Restricted Transfer" means:
a transfer of Customer Personal Data from Customer to a Contracted Processor; or
an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
In each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses. For the avoidance of doubt, where a transfer of Personal Data is of a type authorized by Data Protection Laws in the exporting country, for example in the case of transfers from the European Union to a country or scheme (such as the EU-US Privacy Shield) which is approved by the Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer;
"Services" means the services and other activities to be supplied to or carried out by or on behalf of Exigence for Customer pursuant to the Terms of Service;
"Standard Contractual Clauses" means the contractual clauses issued by the Commission from time to time;
"Subprocessor" means any person (including any third party, but excluding an employee of Exigence or any of its sub-contractors) appointed by or on behalf of Exigence to Process Personal Data on behalf of Customer in connection with the Terms of Service;
The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Principles Relating to Processing of Customer Personal Data
Customer shall comply with all applicable Data Protection Laws, including the principles relating to processing of Personal Data detailed in Article 5 of the GDPR, such as, but not limited to, collection of Personal Data lawfully and for legitimate purposes, obtaining any required consents from Data Subjects, and, if applicable, appointing a data protection officer.
3. Exigence Processing of Customer Personal Data
Exigence shall not Process Customer Personal Data other than on Customer’s documented instructions unless Processing is required by Applicable Laws. Customer warrants and represents that Customer's instructions shall at all times comply with all applicable Data Protection Laws, and that the Processing of Customer Personal Data in accordance with Customer’s instructions will not cause Exigence to be in breach of any applicable Data Protection Laws.
Customer instructs Exigence (and authorizes Exigence to instruct each Subprocessor) to Process Customer Personal Data, and, in particular, transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Terms of Service.
Customer warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in this sub-section on behalf of all relevant affiliates of Customer.
Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of the Customer Personal Data as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to Exigence from time to time as Customer reasonably considers necessary to meet those requirements.
4. Exigence Personnel
To the extent required by Applicable Law, Exigence shall take reasonable steps to ensure the reliability of any employee, agent or contractor of Exigence who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Terms of Service, and to comply with Applicable Laws in the context of that individual's duties to Exigence, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
To the extent required by Applicable Law, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing by Exigence, and in order to ensure a level of security appropriate to the risks presented by such Processing, including, as appropriate, the measures referred to in Article 32(1) of the GDPR, Exigence shall implement in relation to the Services the technical and organizational measures summarized in Annex 2 of this Addendum. From time to time, Exigence may make reasonable amendments to Annex 2 by written notice to Customer (either via email or by posting notice of such changes on Exigence's website, or by any other reasonable means). Exigence does not warrant and hereby specifically disclaims any representation that the security measures implemented by it in connection with the Services are appropriate for special categories of personal data or other types of data that are sensitive in nature.
Customer acknowledges and agrees that the Services are not designed (or intended) for Exigence to access any Customer data, including the Customer Personal Data, and Exigence does not have any knowledge as to what types of Customer Personal Data, if any, are processed by Exigence on behalf of Customer, and that therefore Exigence is not in the position to assess what measures are appropriate to the Customer Personal Data. Customer represents and warrants to Exigence that Customer shall not upload or otherwise transfer to the Services any Customer Personal Data that may constitute special categories of personal data pursuant to any applicable Data Protection Laws. Customer further represents and warrants that it has assessed the security measures implemented by Exigence and has found them appropriate to any Customer Personal Data, and agrees to be solely responsible (as between the parties and towards data subjects and supervisory authorities) if those measures, in themselves, do not meet the standard of appropriateness with respect to the security of the Customer Personal Data that may be required by any applicable Data Protection Laws.
Customer further acknowledges and agrees that the Customer Personal Data will be stored by Exigence on the infrastructure of a third-party infrastructure provider (the "Cloud Infrastructure Provider") and that the Cloud Infrastructure Provider implements its own security measures with respect to the cloud infrastructure, at its discretion. If Customer has any specific requirements as to the security measures in connection with the cloud infrastructure implemented, Customer shall notify Exigence of such requirements and the parties shall approach the Cloud Infrastructure Provider for possible solutions.
6.1. Customer authorizes Exigence to appoint (and permits each Subprocessor appointed in accordance with this section 6 to appoint) Subprocessors for the Processing of Customer Personal Data in accordance with this section 6 and any restrictions in the Terms of Service.
6.2. Exigence may continue to use those Subprocessors already engaged by Exigence as of the date of this Addendum, including the Cloud Infrastructure Provider, subject to Exigence in each case as soon as practicable meeting the obligations set out in section 6.4.
6.3. If and to the extent required by Applicable Law, Exigence shall give Customer prior written notice of the appointment and/or replacement of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 14 days of receipt of that notice, Customer notifies Exigence in writing of any objections (on reasonable grounds) to the proposed appointment, Customer may terminate the Terms of Service with immediate effect by written notice to Exigence, to the extent that it relates to services which require the use of the proposed Subprocessor. Upon such termination, Exigence shall refund to Customer the unused portion, if any, of the fees paid by Customer to Exigence for the services that were terminated due to Customer's objection to the appointment of a Subprocessor. If no notice of objection was received by Exigence from Customer in the period specified above, Customer shall be deemed to accept and consent to the appointment of the Subprocessor.
6.4. To the extent required by Applicable Law, with respect to each Subprocessor, Exigence shall:
ensure that the arrangement between Exigence and the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Addendum;
if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are incorporated into the agreement between Exigence and the Subprocessor, or before the Subprocessor first Processes Customer Personal Data, procure that it enters into an agreement incorporating the Standard Contractual Clauses with Customer or has alternative appropriate safeguards in place.
6.5. Exigence shall ensure that each Subprocessor performs the obligations under sections 3, 4, 5, 7.1, 8, 9 and 11, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this Addendum in place of Exigence.
6.6. To the extent required by Applicable Law, Exigence acknowledges that if a Subprocessor fails to fulfil its data protection obligations, Exigence shall remain fully liable to the Customer for the performance of the Subprocessor’s obligations.
7. Data Subject Rights
7.1. Taking into account the nature of the Processing carried out by Exigence and the limited information available to it, Exigence shall assist Customer, at Customer's expense, with the fulfillment of Customer's obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws, insofar as and to the extent that this is possible and cannot be reasonably attained without Exigence's assistance.
7.2. Exigence shall:
promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or as required by Applicable Laws to which the Contracted Processor is subject.
8. Personal Data Breach
If and to the extent required by Applicable Law, Exigence shall notify Customer without undue delay upon Exigence or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws, to the extent such information is available to Exigence.
To the extent required by Applicable Law, Exigence shall co-operate with Customer and take, at Customer's expense, such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach, insofar as and to the extent that this is possible and cannot be reasonably attained without Exigence's assistance.
9. Data Protection Impact Assessment and Prior Consultation
If and to the extent required by Applicable Law, Exigence shall provide reasonable assistance to Customer, at Customer's expense, with any data protection impact assessments, and prior consultations with Supervisory Authorities or other competent data protection authorities, which Customer reasonably considers to be required of it by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case insofar as and to the extent that this is possible and solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Customer Personal Data
On expiration or termination of Customer’s right to use the Services, Exigence shall delete or return to Customer the Customer Personal Data and copies thereof in accordance with the terms and timelines specified in the Terms of Service, unless Applicable Laws require storage of Customer Personal Data. If Exigence retains Customer Personal Data pursuant to Applicable Laws, Exigence shall maintain the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
Customer acknowledges and agrees that a copy of Customer Personal Data generated by Exigence's automated computer archival back-up systems may be retained by Exigence for a period of up to 5 years after expiration or termination of the Services and thereafter such copy shall be deleted. Exigence shall ensure the confidentiality of such copy of the Customer Personal Data.
11. Audit rights
11.1. If and to the extent required by Applicable Law and subject to section 11.2, Exigence shall make available to Customer, upon request and at Customer's expense, all information reasonably necessary to demonstrate compliance with this Addendum, and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.
11.2. Notwithstanding the foregoing, with respect to the Cloud Infrastructure Provider, Exigence shall provide to Customer only such information and audit rights, if any, that are made available or granted to Exigence by the Cloud Infrastructure Provider.
11.3. Customer may only mandate an auditor for the purposes of section 11.1 if Exigence has given its consent to such auditor, such consent not to be unreasonably withheld or delayed.
11.4. Customer shall give Exigence reasonable notice of any audit or inspection to be conducted under section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to Exigence's premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection.
Exigence need not give access to its premises for the purposes of such an audit or inspection:
to any individual unless he or she produces reasonable evidence of identity and authority;
outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer undertaking an audit has given notice to Exigence that this is the case before attendance outside those hours begins; or
for the purposes of more than one audit or inspection in any calendar year, except for any additional audits or inspections which: (i) Customer reasonably considers necessary because of genuine concerns as to Exigence's compliance with this Addendum; or (ii) Customer is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory, where Customer has identified its concerns or the relevant requirement or request in its notice to Exigence of the audit or inspection.
11.5. Audits conducted by Customer pursuant to section 11.1 above shall be at Customer's expense and provided that Customer and/or the auditor mandated by Customer to conduct an audit have signed a confidentiality undertaking towards Exigence. If Customer notifies Exigence of its will to conduct an audit, Exigence may, in its sole discretion, choose to conduct the audit by itself or an auditor mandated by it and provide Customer with the report of such audit.
12. Restricted Transfers
If required by Applicable Law, with respect to any Restricted Transfer from Customer to Exigence, the parties shall enter into the Standard Contractual Clauses.
In the event of any conflict or inconsistency between this Addendum and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail with regard to the subject matter of such Restricted Transfer.
13. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXIGENCE'S LIABILITY UNDER THIS ADDENDUM OR ANY DATA PROTECTION LAWS SHALL BE SUBJECT TO THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THE TERMS OF SERVICE. CUSTOMER AGREES THAT ANY REGULATORY PENALTIES INCURRED BY EXIGENCE IN RELATION TO THE CUSTOMER PERSONAL DATA THAT ARISE AS A RESULT OF, OR IN CONNECTION WITH, CUSTOMER’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS ADDENDUM AND THE GDPR SHALL COUNT TOWARDS AND REDUCE EXIGENCE’S LIABILITY UNDER THE TERMS OF SERVICE AS IF IT WERE LIABILITY TO THE CUSTOMER UNDER THE TERMS OF SERVICE.
14. General Terms
Governing law and jurisdiction
The parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Terms of Service with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, interpretation, validity or termination or the consequences of its nullity. This Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Terms of Service.
Order of precedence
Subject to section 12, with regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Terms of Service and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this Addendum, the provisions of this Addendum shall prevail.
Changes in Data Protection Laws, etc.
Customer may propose any variations to this Addendum which Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
The parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address such requirements as soon as is reasonably practicable.
This Addendum is entered into by duly authorized representatives of Customer and Exigence and constitutes a legal, valid and binding obligation of Customer and Exigence, enforceable against each of them in accordance with the terms of this Addendum.
Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Customer Personal Data as required by Article 28(3) GDPR.
Subject matter and duration of the Processing of Customer Personal Data
The subject matter and duration of the Processing of the Customer Personal Data are set out in the Terms of Service and this Addendum.
The nature and purpose of the Processing of Customer Personal Data
The nature and purpose of the Processing of the Customer Personal Data, if any, are rendering IT incidents management services (including storage and computing) and related services, as further detailed in the Terms of Service.
The types of Customer Personal Data to be Processed
The Services are not designed (or intended) for Exigence to access any Customer data, including any Customer Personal Data, and therefore Exigence does not have any knowledge as to what types of Customer Personal Data, if any, are processed by Exigence on behalf of Customer. Without prejudice to any of the foregoing, the security measures implemented by Exigence in connection with the Services are designed and intended for non-sensitive types of Personal Data and Personal Data that are not special categories of personal data, for example: email address, phone number, work place, location data and online identifier (IP address).
The categories of Data Subjects to whom the Customer Personal Data relates
As explained above, Exigence does not have any knowledge as to the nature of the Customer Personal Data and the Data Subjects to whom it relates, but Exigence assumes that such may include Customer's clients, potential clients, end users, contractors, suppliers, service providers, employees and agents.
The obligations and rights of Customer
The obligations and rights of Customer are set out in the Terms of Service and this Addendum, as may be amended from time to time in accordance with the terms thereof and hereof.
ANNEX 2: SUMMARY OF EXIGENCE'S SECURITY MEASURES
Exigence is hosted entirely by the Cloud Infrastructure Provider – Amazon Web Services Inc. ("AWS") – and implements the following measures:
Lock away your AWS account (root) access keys
Create individual IAM users
Use AWS-defined policies to assign permissions whenever possible
Use groups to assign permissions to IAM users
Grant least privilege
Configure a strong password policy for your users
Enable MFA for privileged users
Use roles for applications that run on Amazon EC2 instances
Rotate credentials regularly
Remove unnecessary credentials
Use policy conditions for extra security
Last Updated: January 31, 2021
This CCPA Addendum ("Addendum") forms part of the Terms of Service to which this Addendum is attached (the "Terms of Service") between Exigence Ltd. ("Exigence") and the customer that is a party to the Terms of Service ("Customer").
For the purpose of compliance of the parties hereto with Cal. Civ. Code Title 1.81.5, § 1798.100 – 1798.199. (the California Consumer Privacy Act of 2018), as amended (the “CCPA”), as far as the CCPA is applicable to the parties:
The Customer may disclose a Consumer’s Personal Information (as such terms are defined under the CCPA) to Exigence solely for the business purpose of performing the Terms of Service (such personal information, “CCPA Data”).
Exigence shall not:
Sell the CCPA Data.
Retain, use, or disclose the CCPA Data for any purpose other than for the specific purpose of performing the services specified in the Terms of Service, including retain, use, or disclose the CCPA Data for a commercial purpose other than providing the services specified in the Terms of Service.
Retain, use, or disclose the CCPA Data outside of the direct business relationship between Exigence and the Customer.
Exigence understands the restrictions applicable to it in in subparagraph (ii) and will comply with such restrictions.
It is the parties' understanding that for the purpose of the CCPA, if applicable to the parties, Exigence is not a "Business" or a "Third Party" as such terms are defined under the CCPA.
In the event Exigence receives, during the Term of the Terms of Service, a request from a Consumer in connection with CCPA Data, Exigence shall direct such Consumer to the Customer, and such request shall be processed and addressed by Customer in compliance with the CCPA.