Wisetail Data Processing Agreement

THIS AGREEMENT is made on the day of April 20, 2018

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.

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;

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.

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.

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.

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.

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.

APPOINTMENT OF SUBPROCESSORS

6.1

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.

6.2

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

6.3

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.

MISCELLANEOUS PROVISIONS

7.1

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).

7.2

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.

7.3

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

7.4

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. dated April 20, 2018.

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.