Wisetail Data Processing Agreement

BETWEEN:

(1)

THE CLIENT (the “Data Controller”); and

(2)

Wisetail (the “Data Processor”),

(each a “Party”, and together the “Parties”).

WHEREAS:

(A)

The Data Processor is to provide Services to the Data Controller pursuant to this Agreement.

(B)

This Agreement is entered into to ensure adequate safeguards with respect to the protection of privacy and security of Personal Data passed from the Data Controller to the Data Processor for Processing or accessed by the Data Processor on the authority of the Data Controller for Processing or otherwise received by the Data Processor for Processing on the Data Controller’s behalf.

(C)

This Agreement further defines certain service levels to be applied to all Personal Data related Services (as defined below) provided by the Data Processor to the Data Controller.

IT IS AGREED THAT:

1.0

DEFINITIONS

1.1

In this Agreement, the following expressions shall have the following meanings unless the context otherwise requires:

Data Controller

shall mean the entity which determines the purposes and means of the Processing of Personal Data;

Data Processor

shall mean the entity which Processes Personal Data on behalf of the Data Controller;

Data Subject

shall mean an identified or identifiable natural person who is the subject of Personal Data;

Instruction

shall mean the written instruction, submitted by the Data Controller to the Data Processor, and directing the same to perform a specific action with regard to Personal Data (including depersonalizing, blocking, deleting, making available, etc.);

Personal Data

shall mean any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to his or her physical, physiological, genetic, mental, economic, cultural or social identity;

Personal Data Breach

shall mean a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;

Process” / “Processing

shall mean any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

Schedule

means the schedule annexed to and forming part of this Agreement;

Services

means Processing of the Personal Data by the Data Processor in connection with and for the purposes of the provision of the services to be provided by the Data Processor to the Data Controller relating to the Master Services Agreement between Wisetail and CLIENT, including as described in Schedule 1 to this Agreement;

“Standard Contractual Clauses”

means the agreement executed by and between Data Controller and Data Processor, attached hereto as Schedule 3 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection;

Subprocessor

means any processor engaged by the Data Processor (or by any other Subprocessor of the Data Processor) who agrees to receive from the Data Processor (or from any other Subprocessor of the Data Processor) Personal Data exclusively intended for Processing such Personal Data on behalf of the Data Controller after the transfer in accordance with its Instructions and the terms of the written subcontract;

Term

means the Term of as defined in the Master Services Agreement between Wisetail and CLIENT.

2.0
SCOPE AND APPLICATION OF THIS AGREEMENT

2.1
The scope, manner and purpose as well as the categories of Personal Data and the Data Subjects affected are set out in Schedule 1 to this Agreement.

2.2
This Agreement shall apply, in relation to the Services, to:

2.2.1
all Personal Data sent by or on behalf of the Data Controller to the Data Processor for Processing;

2.2.2
all Personal Data accessed by the Data Processor on the authority of the Data Controller for Processing; and

2.2.3
all Personal Data otherwise received by the Data Processor for Processing on the Data Controller’s behalf.

3.0
DATA PROCESSING

The Data Processor agrees to Process the Personal Data to which this Agreement applies by reason of clause 2 in accordance with the terms and conditions set out in this Agreement, and in particular the Data Processor agrees:

3.1
to Process the Personal Data only on behalf of the Data Controller and at all times in compliance with the Data Controller’s Instructions based on this Agreement, and all applicable data protection laws and solely for the purposes (connected with provision of the Services by the Data Processor) and in the manner specified from time to time by the Data Controller in writing and for no other purpose or in any manner except with the express prior written consent of the Data Controller. Instructions orally given shall be promptly confirmed in writing. If the Data Processor cannot provide such compliance for whatever reasons, it agrees to promptly notify the Data Controller of its inability to comply, in which case the Data Controller is entitled to suspend the transfer of Data and/or terminate this Agreement. Where the Data Processor believes that compliance with any instructions by the Data Controller would result in a violation of any applicable law on data protection, the Data Processor shall notify the Data Controller thereof in writing within a reasonable period of time;

3.2
that it has no reason to believe that any applicable law prevents it from fulfilling the Instructions received from the Data Controller and its obligations under this Agreement and that in the event of a change of any applicable law which is likely to have a substantial adverse effect on the obligations provided under this Agreement, it will promptly notify the Data Controller of the change as soon as it is aware of such change, in which case the Data Controller is entitled to suspend the transfer of Personal Data and/or terminate this Agreement;

3.3
that within the Data Processor’s area of responsibility, the Data Processor shall structure its internal corporate organization to ensure compliance with the specific requirements of the protection of Personal Data. The Data Processor shall take the technical and organizational measures to adequately protect the Data Controller‘s Personal Data against misuse and loss. An overview of the technical and organizational measures has been attached as Schedule 2 (Description of Technical and Organizational Measures) to this Agreement. The Data Processor regularly monitors compliance with these measures;

3.4
to ensure that each of its employees, agents and Subprocessors are made aware of its obligations under this Agreement with regard to the security and protection of the Personal Data and shall require that they enter into binding obligations with the Data Processor in order to maintain the levels of security and protection provided for in this Agreement;

3.5
to ensure that any personnel entrusted with the Processing of the Data Controller’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The obligation to maintain data secrecy shall survive the termination of the respective employment relationship;

3.6
not to divulge the Personal Data whether directly or indirectly to any person, firm or company or otherwise without the express prior written consent of the Data Controller except to those of its employees, agents and Subprocessors who are engaged in the Processing of the Personal Data and are subject to the binding obligations referred to in clause ‎3.4 or 3.5 or except as may be required by any law or regulation;

3.7
that it will promptly notify the Data Controller about:

3.7.1
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;

3.7.2
any substantial disruption of the Services or serious interruptions of the operations, any infringements by the Data Processor or its employees, of applicable data protection laws or of this Agreement, or any material irregularity in relation to the Processing of the Personal Data belonging to the Data Controller;

3.7.3
any Personal Data Breach of which it becomes aware. Such notification shall include, taking into account the nature of the Processing and the information available to the Data Processor, any information relevant to assist the Data Controller with its own notification obligations under applicable law:

3.7.4
any request received directly from the Data Subjects without responding to that request, unless it has been otherwise authorized to do so in writing by the Data Controller;

3.8
in the event of the exercise by Data Subjects of any of their rights under applicable law in relation to the Personal Data (including rights to access, rectification, erasure, blocking, objection, restriction, data portability, and the right not to be subject to a decision based solely on automated Processing, including profiling), to inform the Data Controller as soon as possible, and the Data Processor further agrees to assist the Data Controller with all Data Subject requests which may be received from any Data Subject in relation to any Personal Data;

3.9
taking into account the nature of the Processing, to assist the Data Controller by appropriate technical and organisational measures, insofar this is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down by applicable law;

3.10
to deal promptly and properly with all inquiries from the Data Controller relating to its Processing of the Personal Data, including making available to the Data Controller all information necessary to demonstrate compliance with the obligations laid down in this Agreement or information necessary for the Data Controller to apply with applicable laws;

3.11
that any Processing services carried out by a Subprocessor will be carried out in accordance with clause 6;

3.12
that the Data Processor has appointed a data protection officer to the extent this is required by applicable law. The Data Processor will provide the contact details of the appointed person; and

3.13
to assist the Data Controller in ensuring compliance with applicable law, including the obligation to carry out data protection impact assessments and prior consultations with supervisory authorities, taking into account the nature of the Processing and the information available to the Data Processor.

4.0
OBLIGATIONS OF THE DATA CONTROLLER
Within and restricted to the scope of this Agreement, the Data Controller agrees that it shall ensure that any disclosure of Personal Data made by it to the Data Processor is made with the Data Subject’s consent or is otherwise lawful.

5.0
TERMINATION

5.1
This Agreement shall terminate automatically upon the later of (a) termination or expiry of the Data Processor’s obligations in relation to the Services and (b) at the choice of the Data Controller to terminate the Agreement. On termination of this Agreement, the Data Processor shall forthwith deliver to the Data Controller or destroy, at the Data Controller’s sole option, all the Data Controller’s Personal Data in its possession or under its control. Upon the request of the Data Controller, the Data Processor shall confirm compliance with such obligations in writing and delete all existing copies, unless applicable law requires storage of the Personal Data.

5.2
The Data Controller shall be entitled to terminate this Agreement forthwith by notice in writing to the Data Processor if the Data Controller receives notice from the Data Processor in accordance with clause ‎3.1 or ‎3.2 of this Agreement.

6.0
APPOINTMENT OF SUBPROCESSORS

The Data Processor may only authorize a Subprocessor to Process any Personal Data with Data Controller’s prior written approval. In the case of a general written authorization, the Data Processor shall inform the Data Controller of any intended changes concerning the addition or replacement of other Subprocessors, thereby giving the Data Controller the opportunity to object to such changes.

6.1
Any such Processing by a Subprocessor shall be done pursuant to a signed agreement that is no less restrictive than this Agreement.

6.2
No Processing by a Subprocessor will release the Data Processor from its responsibility for its obligations under this Agreement, and the Data Processor will be fully liable for the work and activities of each of its Subprocessors.

7.0
STANDARD CONTRACTUAL CLAUSES

7.1
In the course of the provision of Services by the Data Processor to the Data Controller, it may be necessary to transfer Personal Data of the Data Controller to the Data Processor located in the United States.

7.2
With regard to the data transfers referred to in clause ‎7.1, the Standard Contractual Clauses executed by the Data Controller as data exporter and the Data Processor as data importer as set out in Schedule 3.

7.3
Subprocessors shall be appointed pursuant to Clause 5(h) of the Standard Contractual Clauses as further specified in clause ‎6 of this Agreement.

7.4
In the event of any conflict between the body of this Agreement and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Schedule 3, the provision protecting the rights and freedoms of Data Subjects to a greater extent shall prevail.

8.0
MISCELLANEOUS PROVISIONS

8.1
Amendments or additions to this Agreement must be made in writing to be effective. This shall also apply to amendments of this written form requirement. The written form requirement in this clause does not include faxes or any non-transitory form of visible reproduction of words (like emails).

8.2
Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining terms. The Parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the Agreement.

8.3
Any Data Controller obligations arising from statutory provisions or according to a judicial or regulatory decision shall remain unaffected by this Agreement.

8.4
This Agreement shall be governed by the same law that is governing the Statement of Work pursuant to the Master Services Agreement between Wisetail and Client.

Schedule 1

DESCRIPTION OF THE PROCESSING

Subject-Matter
Wisetail provision of the Services as defined in Section 1.1 of the Data Processing Agreement.

Duration of the Processing
Data will not be kept for any longer than is necessary for achieving the purposes for which it was collected, processed or used, or as it is established in the applicable laws related to data retention periods.

The Term plus the period from the expiry of the Term until deletion of all Personal Data by Wisetail in accordance with the Terms, in accordance with Section 5.1 of the Data Processing Agreement.

Extent, Type, and Purpose of the Processing
Wisetail will process Personal Data for the purposes of providing the Services.

Data Subjects
The Data Processor may process the Personal Data of the customers of the Data Controller’s subsidiary, CLIENT. The Data Processor also may process the Personal Data provided by the end users of the Services, which may include the Personal Data of current employees, former employees, and end users.

Categories of Data
Data relating to individuals provided by Wisetail via the Services, by (or at the direction of) Customer or by Customer End Users.

  • Contact data, such as first name, last name, phone, and email address.
  • Employment status, such as department, job title, location, and supervisor.

Schedule 2

Description of Technical and Organizational Measures

As from the Terms Effective Date, Wisetail will implement and maintain the Security Measures set out in this Schedule 2. Wisetail may update or modify such Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

  1. Data Center and Network Security
    1. Data Centers.
      • Infrastructure
        • Geographically distributed data centers.
        • All production data stored in physically secure data centers.
      • Redundancy. Infrastructure systems have been designed to eliminate single points of failure and minimize the impact of anticipated environmental risks. Redundant lines of communication exist to telecommunication providers to protect against availability issues. In addition, fully redundant routing and switching equipment is utilized for the core network infrastructure.
      • Power. Processing capacity is monitored on a daily basis by data center personnel via the Data Center Operations Metrics dashboard. Data center capacity utilization is reviewed on a monthly basis by data center leadership. The data center facilities are equipped with redundant HVAC units to maintain consistent temperature and humidity levels and to protect against environmental risks. Data centers are equipped with sensors to detect environmental hazards, including smoke detectors and floor water detectors, where chilled water systems are used as coolant. The data center facilities are equipped with raised flooring. To prevent and mitigate the risk of loss of data and equipment due to a fire, data center facilities are equipped with fire detection and suppression systems, and fire detection systems, sprinkler systems, and chemical fire extinguishers are inspected at least annually. To mitigate data loss due to power failures and/or fluctuations, data centers are equipped with uninterruptible power supplies (UPS) systems and diesel generators.
      • Server Operating Systems. The servers use a Linux and Windows based implementation customized for the application environment. Data is stored using proprietary processes to augment data security and redundancy.
      • Businesses Continuity. Wisetail has developed and maintains a process to address its business continuity plan throughout the organization. This plan addresses the information security requirements needed for the company’s continuity in a disaster scenario. It plans for the maintenance and/or restoration of operations to ensure availability of information and continuity of critical business processes.
    2. Networks and Transmission.
      • Data Transmission. Data centers are connected via MPLS private links to provide secure data transfer between data centers. This is designed to prevent data from being read, copied, altered or removed without authorization during electronic transfer or transport or while being recorded onto data storage media. Wisetail transfers data via Internet standard protocols.
      • External Attack Surface. Intrusion detection system (IDS) is used to detect and act upon the detection of anomaly network behavior due to unauthorized software or malicious attacks. Also, data loss prevention software is used to scan for sensitive information in outgoing transmissions to ensure the confidentiality of this type of data.
      • Intrusion Detection. Intrusion detection is intended to provide insight into ongoing attack activities and provide adequate information to respond to incidents. Wisetail intrusion detection involves:
        1. devices are utilized primarily to perform advanced traffic inspection (inclusive of both network layer and application layer inspection) to detect malicious attacks over network connections.
        2. intelligent detection controls at data entry points; and
        3. technologies that automatically remedy certain dangerous situations.
      • Incident Response. Wisetail Incident Management process exists to respond to and document physical and cyber security incidents. The Incident Management team provides documented procedures, which establishes point of contact(s) and threshold of incident levels.
      • Encryption Technologies. Wisetail makes HTTPS encryption (also referred to as SSL or TLS connection) available. To reinforce our objective to secure data, the company’s Secure File Transfer and Physical Media Handling Standards define mandatory security measures for when full encryption of removable media is required.
  2. Access and Site controls
    1. Site Controls.
      • On-site Data Center Security Operation. Wisetail System’s implements various physical security mechanisms to protect its personnel, hardware, network and data from damage or loss due to unauthorized access. Controlled building access and secure access to specific areas are enforced through the administration of cards and biometric devices.
      • Data Center Access Procedures. Access to the data center is restricted using biometric authentication devices (e.g. hand geometry scanner) and key-card/badge devices. Two-factor authentication is used to gain access to the data center, and proximity cards are used at data center facilities to restrict access to only authorized personnel.
      • On-site Data Center Security Devices. Physical safeguards are in place to restrict to the server room within the data center. Physical access (badge access/biometric access) events are logged and retained for at least 12 months. Closed circuit video surveillance has been installed at entrance points on the interior and exterior of the buildings housing data centers and is monitored by authorized personnel. For added security, the data center facilities are not identifiable from the outside of the building or accessible to unauthorized personnel, and security guards are present at the facilities to monitor physical activity and to respond to security incidents. In addition, the data centers have an alarm system at exit and entry points to alert security personnel if a door is forced open or left open.
    2. Access Control.
      • Infrastructure Security Personnel. Authorized personnel are responsible for designing, developing, implementing, operating, maintaining, and monitoring of the system affecting security and availability have the qualifications and resources to fulfill their responsibilities. New Employees go through initial security training during the new hire process. Wisetail has instituted a security awareness policy, and the workforce is periodically trained on security expectations. Wisetail infrastructure security personnel are responsible for the ongoing monitoring of Wisetail security infrastructure, the review of the Services, and responding to security incidents.
      • Access Control and Privilege Management. Wisetail network administrators must authenticate themselves via a central authentication system or via a two-factor system in order to administer the Services.
      • Internal Data Access Processes and Policies – Access Policy. Logical access security software, infrastructure, and architecture have been implemented to support (1) identification and authentication of authorized persons to access data they are authorized to access; (2) ensure that personal data cannot be read, copied, altered or removed without authorizing during processing, use and after recording; and (3) prevention and detection of unauthorized access. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include password expiry, restrictions on password reuse and sufficient password strength. For access to extremely sensitive information (e.g. PII data).
  3. Data
    1. Data Storage, Isolation, and Logging. The data and file system architecture are replicated between multiple geographically dispersed data centers. Wisetail also logically isolates the Customer’s data. Customer will be given control over specific data sharing policies. Those policies, in accordance with the functionality of the Services, will enable Customer to determine the product sharing settings applicable to Customer End Users for specific purposes.
    2. Decommissioned Disks and Disk Erase Policy. The data and file system architecture are replicated between multiple geographically dispersed data centers. Wisetail also logically isolates the Decommissioned Disks and Disk Erase Policy. Customers subscribed to offsite retention have media sent to an offsite storage facility in a locked container. Backup tapes are securely destroyed when their useful life expires. This control operates when an established number of tapes requiring destruction is met. Wisetail performs periodic monitoring of the retention of services. The offsite retention media is sent to an offsite storage facility in a locked container. Backup tapes are securely destroyed when their useful life expires. This control operates when an established number of tapes requiring destruction is met. During the period, this condition did not exist; therefore, this control did not operate.
  4. Personnel Security
    Wisetail employee competence is a key element of the control environment. Wisetail is committed to training and developing its employees. This commitment to competence is expressed in the company’s personnel policies and related human resource programs. At least annually, the Human Resources Team/Management performs a review of key talent by individual and role to ensure that critical talent is retained and to ensure that the organizational structure is aligned in a way that will support achievement of the company’s objectives and strategies. Wisetail ensures that personnel have the knowledge and training needed to perform their duties. New employees go through initial Security training during the New Hire Process. Wisetail personnel are required to conduct themselves in a manner consistent with the company’s guidelines regarding confidentiality, business ethics, appropriate usage, and professional standards. Wisetail conducts reasonably appropriate backgrounds checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, Wisetail confidentiality and privacy policies. Personnel are provided with security training. Personnel handling Customer Data are required to complete additional requirements appropriate to their role (eg., certifications). Wisetail personnel will not process Customer Data without authorization.
  5. Subprocessor Security
    Before onboarding Subprocessors, Wisetail conducts an audit of the security and privacy practices of Subprocessors to ensure Subprocessors provide a level of security and privacy appropriate to their access to data and the scope of the services they are engaged to provide. Once Wisetail has assessed the risks presented by the Subprocessor, then subject to the requirements of the Data Controller’s Requirements for Subprocessor Engagement, the Subprocessor is required to enter into appropriate security, confidentiality and privacy contract terms, in accordance with Section 6 of the Data Processing Agreement.
Schedule 3

Standard Contractual Clauses (Processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: CLIENT is the data exporter who is receiving Services under the Terms of ServiceOther information needed to identify the organisation: n/a

Other information needed to identify the organisation: n/a

(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

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 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(b)
‘the data exporter’ means the controller 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 Directive 95/46/EC;

(d)
‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f)
‘technical and organisational security measures’ means those measures aimed at protecting 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.

Clause 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.

Clause 3

Third-party beneficiary clause

1.
The data subject can enforce against the data exporter this Clause, Clause 4(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.

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.
The data subject can enforce against the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.

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.

Clause 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 2 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 Directive 95/46/EC;

(g)
to forward any notification received from the data importer or any subprocessor 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 subprocessing 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 subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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).

Clause 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 2 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 subprocessing, 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i)
that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j)
to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

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 subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

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 subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

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.

2.
The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

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.

2.
The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, 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.

3.
The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor’s obligations under such agreement.

2.
The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.

3.
The provisions relating to data protection aspects for subprocessing 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.

4.
The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1.
The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor 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.

2.
The data importer and the subprocessor 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 must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

For all parts to Appendix 1, see description contained in Schedule 1 of the Data Processing Agreement.

Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
• Client is the data exporter who is receiving Services under the Terms of Service.

Data importer
The data importer is (please specify briefly activities relevant to the transfer):
• Wisetail is a provider of enterprise cloud computing solutions which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.

Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
• Prospective and existing customers of the data exporter

Categories of data
The personal data transferred concern the following categories of data (please specify):
• Data relating to individuals provided by Wisetail via the Services, by (or at the direction of) Customer or by Customer End Users.
Contact data, such as first name, last name, phone, and email address.
Employment status, such as department, job title, location, and supervisor.

Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
• None

Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
• None

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed 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) (or document/legislation attached):

See description contained in Schedule 2 of the Data Processing Agreement.