Data Processing Addendum

Data Processing Addendum

Capitalized terms not defined in this Data Processing Addendum (“DPA”) shall have the meanings set forth in the SSA.

1. Definitions

Agreement” means AppDirect’s Subscription Services Agreement, which governs the provision of the Services to Company, as such terms may be updated by AppDirect from time to time.

Customer Data” means any Personal Data that AppDirect processes on behalf of Company, its Customers and/or its End Users as a Data Processor in the course of providing Services, as more particularly described in this DPA.

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq.

Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law and the CCPA.

Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.

Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.

EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).

EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.

“Model Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission in the form set out in Annex B.

Processing,” “process”, “processes” and “processed” mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.

Services” means any product or service provided by AppDirect to Company pursuant to the Agreement.

Sub-processor” means any Data Processor engaged by AppDirect or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or AppDirect’s Affiliates.

2. Relationship with the Agreement

    2.1 The parties agree that this DPA shall replace any existing DPA, including the Model Clauses (as applicable), the parties may have previously entered into in connection with the Services.

    2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

    2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.

    2.4 Any claims against AppDirect or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. In no event shall any party limit its liability with respect to any individual’s data protection rights under this DPA or otherwise. Company further agrees that any regulatory penalties incurred by AppDirect in relation to the Customer Data that arise as a result of, or in connection with, Company’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce AppDirect’s liability under the Agreement as if it were liability to the Company under the Agreement.

    2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

    2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

    2.7 This DPA and the Model Clauses shall terminate simultaneously and automatically with the termination or expiration of the Agreement.

3. Scope and Applicability of this DPA

    3.1 This DPA applies where and only to the extent that AppDirect processes Customer Data on behalf of Company as Data Processor in the course of providing Services pursuant to the Agreement.

Part A: General Data Protection Obligations

4. Roles and Scope of Processing

    4.1 Role of the Parties. As between AppDirect and Company, Company is the Data Controller of Customer Data, and AppDirect shall process Customer Data only as a Data Processor acting on behalf of Company. In terms of Data Protection Laws, Company remains the responsible party (“owner of the data”).

    4.2 Company Processing of Customer Data. Company agrees that (i) it shall treat Customer Data that it receives, collects or processes as part of its obligations under the Agreement, whether from AppDirect or from Customers or End Users, in accordance with Data Protection Laws; (ii) it shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to AppDirect; and (iii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for AppDirect to process Customer Data and provide the Services pursuant to the Agreement and this DPA. Should third parties assert claims against AppDirect based on the collecting, processing or usage of Controller Data, Company shall indemnify AppDirect from all such claims.

    4.3 AppDirect Processing of Customer Data. AppDirect shall process Customer Data only for the purposes described in this DPA and only in accordance with Company’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Company’s complete and final instructions to AppDirect in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Company and AppDirect.

    4.4 Details of Data Processing

        (a) Subject matter: The subject matter of the data processing under this DPA is the Customer Data.

        (b) Duration: As between AppDirect and Company, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.

        (c) Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Company and the performance of AppDirect’s obligations under the Agreement (including this DPA) or as otherwise agreed by the parties.

        (d) Nature of the processing: AppDirect provides the cloud service commerce platform and the support services for the platform. The platform allows Company, its Customers and End Users accessing the platform to purchase and manage subscriptions for Products and any of their End Users to access and use the platform, as described in the Agreement.

        (e) Categories of data subjects: Any individual accessing and/or using the Services through the Company’s account; and any individual whose information is stored on or collected via the Services.

        (f) Types of Customer Data: Identification and contact data (e.g. name, address, title, contact details, username etc.); financial information (e.g. credit card details, account details, payment information etc.); employment details (e.g. employer, job title, geographic location, area of responsibility etc.); order data (e.g. documentation of all orders done incl. all order data e.g. item, product, quantity, price etc.); automatic mail traffic (e.g. with order process or changes in the user structure etc.).

    4.5 AppDirect will not:

        (a) Sell Customer Data. For purposes of this paragraph, “sell” shall have the meaning set forth in the CCPA.

        (b) Process Customer Data for any purposes other than for the specific purposes set forth herein. For the avoidance of doubt, AppDirect will not process Customer Data outside of the direct business relationship between Company and AppDirect.

    4.6 Notwithstanding anything to the contrary in the Agreement (including this DPA), Company acknowledges that AppDirect shall have a right to use and disclose data relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Data Protection Laws, AppDirect is the Data Controller of such data and accordingly shall process such data in accordance with the AppDirect Privacy Notice and Data Protection Laws. AppDirect and Company acknowledge that no aspect of the Services (or other valuable consideration) contemplated in the Agreement is or shall be provided in exchange for the right to use Customer Data in the manner described in this Section 4.6.

    4.7 AppDirect certifies that it understands its restrictions and obligations set forth in this DPA and will comply with them.

5. Cooperation

    5.1 The Services provide Company with a number of controls that Company may use to retrieve, correct, delete or restrict Customer Data, which Company may use to assist it in connection with its obligations under the Data Protection Laws, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Company is unable to independently access the relevant Customer Data within the Services, AppDirect shall (at Company’s expense) provide reasonable cooperation to assist Company to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to AppDirect, AppDirect shall not respond to such communication directly without Company’s prior authorization, unless legally compelled to do so. If AppDirect is required to respond to such a request, AppDirect shall promptly notify Company and provide it with a copy of the request unless legally prohibited from doing so.

    5.2 If a law enforcement agency sends AppDirect a demand for Customer Data (for example, through a subpoena or court order), AppDirect shall attempt to redirect the law enforcement agency to request that data directly from Company. As part of this effort, AppDirect may provide Company’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then AppDirect shall give Company reasonable notice of the demand to allow Company to seek a protective order or other appropriate remedy unless AppDirect is legally prohibited from doing so.

6. Subprocessing

    6.1 Authorized Sub-processors. Company agrees that AppDirect may engage Sub-processors to process Customer Data on Company’s behalf. Company agrees that AppDirect may employ or change Sub-processors at his own discretion. AppDirect may continue to use those Sub-processors already engaged by AppDirect as at the date of this DPA.

    6.2 Sub-processor Obligations. AppDirect shall: (i) enter into a written agreement with each Sub-processor that imposes obligations on the Sub-processor that are no less restrictive than those imposed on AppDirect under this DPA; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause AppDirect to breach any of its obligations under this DPA.

7. Security

     7.1 Security Measures. AppDirect shall implement and maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with AppDirect’s security standards described in Annex A (“Security Measures”).

     7.2 Updates to Security Measures. Company is responsible for reviewing the information made available by AppDirect relating to data security and making an independent determination as to whether the Services meet Company’s requirements and legal obligations under Data Protection Laws. Company acknowledges that the Security Measures are subject to technical progress and development and that AppDirect may update or modify the 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 purchased by the Company.

     7.3 Company Responsibilities. Notwithstanding the above, Company agrees that except as provided by this DPA, Company is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.

8. Security Reports and Audits

    8.1 Company acknowledges that AppDirect is regularly audited against PCI, SOC 1 and SOC 2 standards by independent third party auditors and internal auditors, respectively. Upon request, AppDirect shall supply (on a confidential basis) a summary copy of its audit report(s) (“Report”) to Company, so that Company can verify AppDirect’s compliance with the audit standards against which it has been assessed, and this DPA.

    8.2 AppDirect shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Company, including responses to information security and audit questionnaires that are necessary to confirm AppDirect’s compliance with this DPA, provided that Company shall not exercise this right more than once per year.

9. International Transfers

    9.1 Data center locations. AppDirect may transfer and process Customer Data anywhere in the world where AppDirect, its Affiliates or its Sub-processors maintain data processing operations. AppDirect shall at all times provide an adequate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.

    9.2 Model Clauses: To the extent that AppDirect processes any Customer Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that AppDirect shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Customer Data by complying with the Model Clauses. AppDirect agrees that it is a “data importer” and Company is the “data exporter” under the Model Clauses (notwithstanding that Company is an entity located outside of the EEA).

    9.3 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.2 shall not apply if and to the extent that AppDirect adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).

Part B: GDPR Obligations

10. Additional Security

    10.1 Confidentiality of processing. AppDirect shall ensure that any person who is authorized by AppDirect to process Customer Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

    10.2 Security Incident Response. Upon becoming aware of a Security Incident, AppDirect shall notify Company without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Company.

11. Changes to Sub-processors.

    11.1 AppDirect shall (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from Company; and (ii) notify Company (for which email shall suffice) if it adds or removes Sub-processors at least 10 days prior to any such changes.

     11.2 Company may object in writing to AppDirect’s appointment of a new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Company may suspend or terminate the Agreement (without prejudice to any fees incurred by Company prior to suspension or termination).

12. Return or Deletion of Data

     12.1 Upon termination or expiration of the Agreement, AppDirect shall (at Company’s election) delete or return to Company all Customer Data (including copies) in its possession or control, save that this requirement shall not apply to the extent AppDirect is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data AppDirect shall securely isolate and protect from any further processing, except to the extent required by applicable law; any such back-up data must be deleted at regular intervals not exceeding six (6) months from the date of termination.

13. Cooperation

     13.1 To the extent AppDirect is required under EU Data Protection Law, AppDirect shall (at Company’s expense) provide reasonably requested information regarding the Services to enable the Company to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

Annex A - Security Measures

I. Background

A. Purpose

This document describes the security measures that AppDirect has adopted for the purpose of protecting Personal Data and information, primarily with a view to meeting pre-defined requirements of applicable data protection and privacy laws across AppDirect’s services. These requirements have largely been derived from national legislation across AppDirect’s services mandating the security measures for the protection of Personal Data and are intended to provide a harmonized and single standard.

Information security techniques, and the threats to security, are continually evolving. Security must therefore be continually assessed in the light of the specific circumstances at hand to determine the appropriate level of protection.

B. Definitions

In this document, the following definitions are used:

Content - means the content of an electronic communication by a user of the AppDirect services, including the content of electronic messages, such as SMS, MMS and email, and web pages requested to the extent that it is not Traffic Data, and references to Personal Data shall include Content;

Information Systems - means all systems used to access, store or otherwise Process Personal Data, including temporary files;

Location Data - means any data Processed in an electronic communications network, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service, geographic location derived from mobile network cell ID data, and coordinates provided by GPS, pico-cell, femto-cell or WIFI hotspots with known or presumed coordinates for the cells or hotspots to which users are connected, and references to Personal Data shall include Location Data;

Media - means a physical object likely to be Processed in an Information System and on which data may be recorded or from which they may be retrieved;

Security Document - means the document containing the Security Plan;

Security Plan - means the measures adopted to comply with these security measures;

Traffic Data - means any data Processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof, and references to Personal Data shall include Traffic Data.

All other capitalized terms not defined in these Service Measures will have the meaning assigned to them in the Data Processing Addendum.

C. Security Categories

These security measures are divided into three categories to reflect the sensitivity of different types of data: Standard, Medium and High. The data types to which these three security categories apply are described below.

1. Standard Security Measures

The standard security measures apply to all Personal Data as identified by AppDirect, including those categories of Personal Data referred to below in relation to the Medium and High categories.

2. Medium Security Measures

The medium security measures apply to Personal Data as identified by AppDirect, including those categories of Personal Data referred to below in relation to the High category:

  • Enquiries or disclosures for law enforcement purposes
  • Sufficient to permit an assessment of an individual's personality
  • Bank account, debit, credit or other payment card information

3. High Security Measures

The high security measures apply to the following data categories as identified by AppDirect:

  • Enquiries or disclosures for law enforcement purposes where such data is also Traffic Data
  • Traffic Data
  • Location Data
  • Content

D. Order of precedence

In the event that the security measures conflict, the higher standard shall take precedence.

E. Scope

The security measures required for access to Personal Data via communications networks guarantee a level of security equivalent to that applying to local access.

II. Standard Security Measures

A. Organizational measures

1. Security Officer

A person responsible for the overall compliance with these security measures is designated as the Security Officer. This person is trained and experienced in managing information security and provided with appropriate resources to effectively ensure compliance.

2. Security Plan and Document

a. The measures adopted to comply with these security measures are subject of a Security Plan and set out in a Security Document which is kept up to date and revised whenever relevant changes are made to the Information System or to how it is organized. The Security Document records significant changes to the security measures or the Processing activities.

b. The Security Plan addresses: Security measures relating to the modification and maintenance of the system used to Process Personal Data, including development and maintenance of applications, appropriate vendor support and an inventory of hardware and soft Physical security, including security of the buildings or premises where data Processing occurs, security of data equipment and telecommunication infrastructure and environmental controls.

c. Data security mechanisms for securing the integrity and confidentiality of the data, classification of the data.

d. Security of computers and telecommunication systems including procedures for managing back-up copies, procedures dealing with computer viruses, procedures for managing signal/codes, security for software implementation, security related to databases, security for connecting systems to the Internet, inspection of circumvention of data system, mechanisms for keeping account of attempts to break system security or gain unauthorized access.

e. The Security Plan includes:

    i. a Disaster Recovery Plan which sets out: measures to minimize interruptions to the normal functioning of the system; limit the extent of any damage and disasters; enable a smooth transition of Personal Data from one computer system to another; if necessary, provide for alternative means of operating a computer system; educate, exercise and familiarize personnel with emergency procedures; provide for fast and smooth system recovery, and minimize the economic effects of any disaster event.

    ii. a Contingency Plan which addresses the following possible dangers to the system and appropriate criteria to determine when the plan will be triggered: the critical functions and systems, the strategy for protecting the system and priorities in the event the plan is activated; an inventory of relevant staff members to be called upon during an emergency, as well as telephone numbers of other relevant parties; a set of procedures for calculating the damage incurred; realistic time management plans to enable the recovery of the system; clearly allocated staff duties; possible use of alarms and special devices (e.g., air filters, noise filters); in the event of a fire, special equipment will be available (e.g., fire extinguisher, water pumps, etc.); devices or methods for determining temperature, humidity and other environmental factors (e.g., air conditioning, thermometers, etc.); special security software to detect breaches of security; special generators for dealing with power cuts; retention of copies of software or materials in other protected buildings to avoid inadvertent loss.

f. The Security Document is available to staff who have access to Personal Data and the Information Systems, and covers the following aspects:

    i. The scope, with a detailed specification of protected resources;

    ii. The measures, standards, procedures, code of conduct rules and norms to guarantee security, including for the control, inspection and supervision of the Information Systems;

    iii. The functions and obligations of staff;

    iv. The structure of files containing Personal Data and a description of the Information Systems on which they are Processed;

    v. The purposes for which the Information Systems may be used;

    vi. The procedures for reporting, managing and responding to Security Incidents;

    vii. The procedures for making back-up copies and recovering data including the person who undertook the process, the data restored and, as appropriate, which data had to be input manually in the recovery process.

3. Functions and Obligations of Staff

a. Only those employees who have demonstrated honesty, integrity and discretion have access to premises where Information Systems or media containing Personal Data are located. Staff is bound by a duty of confidentiality in respect of any access to Personal Data.

b. The necessary measures are adopted to train and make staff familiar with these security measures, any relevant policies and applicable laws concerning the performance of their functions and duties in respect of the Processing of Personal Data and the consequences of any breach of these security measures.

c. The functions and obligations of staff having access to Personal Data and the Information Systems are clearly defined and documented.

d. Employees are instructed to the effect that electronic equipment should not be left unattended and made accessible during Processing sessions.

e. Physical access to areas where any Personal Data are stored is restricted to employees who have a legitimate operational need to access such data.

f. The disciplinary measures for a breach of the security plan are clearly defined and documented and communicated to staff.

B. Technical Measures

1. Authorization

a. Only those employees who have a legitimate operational need to access the Information Systems or carry out any Processing of Personal Data are authorized to do so (“Authorized Users”).

b. An authorization system is used where different authorization profiles are used for different purposes.

2. Identification

a. Every Authorized User is issued a personal and unique identification code for that purpose (“User ID”).

b. A User ID will not be assigned to another person, even at a subsequent time.

c. An up-to-date record is kept of Authorized Users, and the authorized access available to each, and identification and authentication procedures is established for all access to Information Systems or for carrying out any Processing of Personal Data.

3. Authentication

a. Authorized Users are allowed to Process Personal Data if they are provided with authentication credentials such as to successfully complete an authentication procedure relating either to a specific Processing operation or to a set of Processing operations.

b. Authentication is based on a secret password associated with User ID, and which password is only known to the Authorized User; alternatively, authentication consists in an authentication device that is used and held exclusively by the person in charge of the Processing and may be associated with either an ID code or a password, or else in a biometric feature that relates to the person in charge of the Processing and may be associated with either an ID code or a password.

c. One or more authentication credentials are assigned to, or associated with, an Authorized User.

d. There is a procedure that guarantees password confidentiality and integrity. Passwords are stored in a way that makes them unintelligible while they remain valid. There is a procedure for assigning, distributing and storing passwords.

e. Passwords abide to industry’s best practices and guidelines. Passwords are modified by the Authorized User to a secret value known only to the Authorized User when it is first used as well as periodically thereafter.

f. The instructions provided to Authorized Users lay down the obligation, as a condition of accessing the Information Systems, to take such precautions as may be necessary to ensure that the confidential component(s) in the credentials are kept secret and that the devices used and held exclusively by Authorized Users are kept with due care.

g. Authentication credentials are de-activated if they have not been used for at least six months, except for those that have been authorized exclusively for technical management and support purposes.

h. Authentication credentials are also de-activated if the Authorized User is disqualified or de-authorized from accessing the Information Systems or Processing Personal Data.

i. Where data and electronic equipment may only be accessed by using the confidential component(s) of the authentication credential, appropriate instructions are given in advance, in writing, to clearly specify the mechanisms to ensure that data or electronic equipment are available in case the person in charge of the Processing is either absent or unavailable for a long time and it is indispensable to carry out certain activities without further delay exclusively for purposes related to system operationality and security. In this case, copies of the credentials are kept in such a way as to ensure their confidentiality by specifying, in writing, the entities in charge of keeping such credentials.

4. Access Controls

a. Only Authorized Users have access to Personal Data, including when stored on any electronic or portable media or when transmitted. Authorized Users have authorized access only to those data and resources necessary for them to perform their duties.

b. A system for granting Authorized Users access to designated data and resources is used.

c. Authorization profiles for each individual Authorized User or for homogeneous sets of Authorized Users are established and configured prior to the start of any Processing in such a way as to only enable access to data and resources that are necessary for Authorized Users to perform their duties.

d. It is regularly verified, at least at yearly intervals, that the prerequisites for retaining the relevant authorization profiles still apply. This also includes the list of Authorized Persons drawn up by homogeneous categories of task and corresponding authorization profile.

e. Measures are put in place to prevent a user gaining unauthorized access to, or use of, the Information Systems. In particular, firewalls and intrusion detection systems reflecting the state of the art and industry best practice are installed to protect the Information Systems from unauthorized access. Measures are put in place to identify when the Information Systems have been accessed or Personal Data has been Processed without authorization, or where there have been unsuccessful attempts at the same.

f. Information systems access controls are configured to ensure authorized access.

g. Only those staff authorized in the security document are authorized to grant, alter or cancel authorized access by users to the Information Systems.

5. Management of Media

a. Information Systems and physical media storing Personal Data are housed in a secure physical environment. Measures are taken to prevent unauthorized physical access to premises housing Information Systems.

b. Appropriate instructions are issued with regard to keeping and using the removable media on which the data are stored in order to prevent unauthorized access and Processing.

c. Media containing Personal Data permits the kind of information they contain to be identified, inventoried (including the time of data entry; the Authorized User who entered the data and the person from whom the data was received; and the Personal Data entered) and stored at a physical location with physical access restricted to staff that are authorized in the security document to have such access.

d. When media are to be disposed of or reused, the necessary measures are taken to prevent any subsequent retrieval of the Personal Data and other information stored on them, or to otherwise make the information intelligible or be re-constructed by any technical means, before they are withdrawn from the inventory.

e. Media containing Personal Data is erased or rendered unreadable if it is no longer used or prior to disposal.

6. Distribution of Media and Transmission

a. Media containing Personal Data are only available to Authorized Users.

b. Printing/copying Processes are physically controlled by Authorized Users, to ensure that no prints or copies containing Personal Data remain left in the printers or copying machines.

c. Media containing Personal Data or printed copies of Personal Data contain the classification mark “Confidential”.

d. Strong encryption is used to protect Personal Data that is electronically transmitted over a public network or stored on a portable device, or where there is a requirement to store or Process Personal Data in a physically insecure environment.

e. Paper documents containing Personal Data are transferred in a sealed container / envelope that indicates clearly that the document must be delivered by hand to an Authorized User.

f. When media containing Personal Data are to leave the designated premises as a result of maintenance operations, the necessary measures are taken to prevent any unauthorized retrieval of the Personal Data and other information stored on them.

g. A system for recording incoming and outgoing media is set up to permit direct or indirect identification of the kind of media, the date and time, the sender/recipient, the number of media, the kind of information contained, how they are sent and the person responsible for receiving /sending them, who must be duly authorized.

7. Preservation, Back-up copies and Recovery

a. Tools are in place to prevent the unintended deterioration or destruction of Personal Data.

b. Procedures are defined and laid down for making back-up copies and for recovering data.

c. Back-up copies are made periodically.

8. Anti-Virus and Intrusion Detection

a. Anti-virus software and intrusion detection systems are installed on the Information Systems to protect against attacks or other unauthorized acts in respect of Information Systems. Antivirus software and intrusion detection systems are updated regularly in accordance with the state of the art and industry best practice for the Information Systems concerned.

9. Software Updates

a. The software, firmware and hardware used in the Information Systems are reviewed regularly in order to detect vulnerabilities and flaws in the Information Systems and resolve such vulnerabilities and flaws. This review is carried out at least annually.

10. Record Keeping

a. Access Record

A history of Authorized Users’ access to or disclosure of Personal Data is recorded on a secure audit trail.

b. Physical Access Record

Only those staff duly authorized in the security document have physical access to the premises where Information Systems and media storing Personal Data are stored. A record of staff who access such premises is maintained, including name, date and time of access.

c. Record of Security Incidents

There is a procedure for reporting, responding to and managing Security Incidents. This includes:

    i. A procedure for reporting such Security Incidents to appropriate management within AppDirect;

    ii. A clearly designated team for managing and coordinating the response to a Security Incident led by the Security Officer;

    iii. A documented and tested process for managing the response to a Security Incident including the requirement to keep appropriate issues and action logs to include the time at which the Security Incident occurred, the person reporting the Security Incident, to whom it was reported and the effects thereof.

III. Medium Security Measures

A. Technical Measures

1. Identification and Authentication

a. Passwords are modified at least every 90 days.

b. The software, firmware and hardware used in the Information Systems are reviewed at least every six months in order to detect vulnerabilities and flaws in the Information Systems and resolve such vulnerabilities and flaws.

c. Mechanisms are set up to permit unequivocal, personalized identification of any user who attempts to access the information system and a check to establish whether each user is authorized.

d. Limits are placed on the scope for repeating attempts to gain unauthorized access to the Information System. After, at most, 5 failed attempts to authenticate, the associated User ID must be blocked.

2. Tests with Real Data

a. Testing prior to the implementation or modification of the Information Systems Processing Personal Data do not use real or ‘live’ data unless such use is necessary and there is no reasonable alternative. Where real or ‘live’ data is used, it is limited to the extent necessary for the purposes of testing and the level of security corresponding to the type of Personal Data Processed is guaranteed.

3. Audit

a. Regular audits of compliance with these security measures, at least at two yearly intervals, are performed and delivered in the form of an audit report.

b. The audit report provides an opinion on the extent to which the security measures and controls adopted comply with these security measures, identify any shortcomings and (if any) propose corrective or supplementary measures as necessary. It also includes the data, facts and observations on which the opinions reached, and the recommendations proposed are based.

IV. High Security Measures

A. Organizational Measures

1. Security Incident Reporting

a. The procedure for reporting, managing and responding to Security Incidents is tested periodically.

B. Technical Measures

1. Distribution of Media

a. Media containing Personal Data will only be distributed if the data have been encrypted to guarantee that that Personal Data and other information is not intelligible or may not be manipulated in transit.

2. Access Record

a. The minimum details to be recorded for every access to the Information Systems is the User ID, the date and the time of access, the data accessed, the kind of access and whether this was authorized or denied.

b. If access was authorized, the retained information permits to identify the record that was accessed.

c. The mechanisms permitting the data set out in detail in the preceding paragraphs to be recorded are under the direct control of the Security Officer and under no circumstances it is permissible to deactivate these.

d. The minimum period for retaining the data recorded is one year.

e. The Security Officer periodically reviews the control information recorded.

3. Back-Up Copies and Recovery

a. Back-up copies and data recovery procedures are kept at a different location from the site of the Information Systems Processing the Personal Data and these security measures apply to such back-up copies.

4. Electronic Communications Networks

a. Personal Data will be distributed via electronic communications networks only if they have been encrypted, enciphered or another mechanism is used to guarantee that the information is not intelligible or is not manipulated by third parties.

Annex B - Model Clauses

Standard Contractual Clauses (processors)

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.

1. Definitions

For the purposes of the Clauses:

‘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;

‘the data exporter’ means the controller who transfers the personal data;

‘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;

‘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;

‘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;

‘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.

2. Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

3. Third-party beneficiary clause

3.1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3.3 The data subject can enforce against the 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.

3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

4. Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 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).

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.

6. Liability

6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his 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.

6.3 The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

6.4 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.

7. Mediation and jurisdiction

7.1 The data importer agrees that if the data subject invokes against its third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

(b) to refer the dispute to the courts in the Member State in which the data exporter is established.

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

8. Cooperation with supervisory authorities

8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

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

8.3 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).

9. Governing Law

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

10. Variation of the contract

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

11. Subprocessing

11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the 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.

11.2 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.

11.3 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.

11.4 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.

12. Obligation after the termination of personal data processing services

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

12.2 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 by the parties.

Data exporter: The data exporter is the entity identified as the “Company” in the Data Processing Addendum in place between data exporter and data importer and to which these Clauses are appended (“DPA”).

Data importer: The data importer is the US headquartered company, AppDirect, Inc. (“AppDirect”). AppDirect provides the cloud service commerce platform and the support services for the platform. The platform allows Company, Company’s customers and end users accessing the platform to purchase and manage subscriptions for products and any of their personnel who access and use the platform and products made available thereon to access and use the platform, as described in the Agreement.

Description of Data Processing: Please see Section 4.4 (Details of Processing) of DPA for a description of the data subjects, categories of data, special categories of data and processing operations.

Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed 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):

Please see Annex A of the DPA, which describes the technical and organisational security measures implemented by AppDirect.

Appendix 3 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be completed by the parties.

This Appendix sets out the parties’ interpretation of their respective obligations under specific Clauses identified below. Where a party complies with the interpretations set out in this Appendix, that party shall be deemed by the other party to have complied with its commitments under the Clauses.

Clause 4(h) and 8: Disclosure of these Clauses

1. Data exporter agrees that these Clauses constitute data importer’s Confidential Information as that term is defined in the Agreement and may not be disclosed by data exporter to any third party without data importer’s prior written consent unless permitted pursuant to Agreement. This shall not prevent disclosure of these Clauses to a data subject pursuant to Clause 4(h) or a supervisory authority pursuant to Clause 8.

Clause 5(a): Suspension of data transfers and termination:

1. The parties acknowledge that data importer may process the personal data only on behalf of the data exporter and in compliance with its instructions as provided by the data exporter and the Clauses.

2. The parties acknowledge that if data importer cannot provide such compliance for whatever reason, 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.

3. If the data exporter intends to suspend the transfer of personal data and/or terminate these Clauses, it shall endeavour to provide notice to the data importer and provide data importer with a reasonable period of time to cure the non-compliance (“Cure Period”).

4. If after the Cure Period the data importer has not or cannot cure the non-compliance then the data exporter may suspend or terminate the transfer of personal data immediately. The data exporter shall not be required to provide such notice in instance where it considers there is a material risk of harm to data subjects or their personal data.

Clause 5(f): Audit:

1. Data exporter acknowledges and agrees that it exercises its audit right under Clause 5(f) by instructing data importer to comply with the audit measures described in Section 7 (Security Reports and Audits) of the DPA.

Clause 5(j): Disclosure of subprocessor agreements

1. The parties acknowledge the obligation of the data importer to send promptly a copy of any onward subprocessor agreement it concludes under the Clauses to the data exporter.

2. The parties further acknowledge that, pursuant to subprocessor confidentiality restrictions, data importer may be restricted from disclosing onward subprocessor agreements to data exporter. Notwithstanding this, data importer shall use reasonable efforts to require any subprocessor it appoints to permit it to disclose the subprocessor agreement to data exporter.

3. Even where data importer cannot disclose a subprocessor agreement to data exporter, the parties agree that, upon the request of data exporter, data importer shall (on a confidential basis) provide all information it reasonably in connection with such subprocessing agreement to data exporter.

Clause 6: Liability

1. Any claims brought under the Clauses shall be subject to the terms and conditions, including but to limited to, the exclusions and limitations set forth in the Agreement. In no event shall any party limit its liability with respect to any data subject rights under these Clauses.

Clause 11: Onward subprocessing

1. The parties acknowledge that, pursuant to FAQ II.1 in Article 29 Working Party Paper WP 176 entitled “FAQs in order to address some issues raised by the entry into force of the EU Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC” the data exporter may provide a general consent to onward subprocessing by the data importer.

2. Accordingly, data exporter provides a general consent to data importer, pursuant to Clause 11 of these Clauses, to engage onward subprocessors. Such consent is conditional on data importer’s compliance with the requirements set out in Section 5 (Sub-processing) of the DPA.