Online Version 09-06-2019
This Gigamon Data Processing Agreement (“DPA”), that includes the Standard Contractual Clauses adopted by the European Commission, as applicable, supplements any existing and currently valid agreement previously made between Gigamon Inc. and/or its subsidiaries (collectively, “Gigamon” or “Vendor” or “Data Importer” or “Processor”) with their principal place of business at 3300 Olcott Street, Santa Clara, CA 95054, U.S.A., and Gigamon Insight customer (“Customer” or “Data Exporter” or “Controller”) with respect to the terms governing the Processing of Personal Data under the Gigamon Insight Terms and Conditions (the “Agreement”).
This DPA is an amendment to the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order or an executed amendment to the Agreement. Upon its incorporation into the Agreement, the DPA will form a part of the Agreement. Gigamon reserves the right to periodically update this DPA.
- “DPA Effective Date” means the last date of signature on which the parties agreed to this DPA.
- “EEA” means the European Economic Area.
- “EU” means the European Union.
- “Data Protection Legislation” means applicable data protection laws in the relevant jurisdiction, including the GDPR and other relevant data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom, in each case, applicable to the processing of Personal Data under the Agreement.
- “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
- “Gigamon Offerings” means Gigamon Products (Gigamon Hardware and Software), Gigamon Support, and Gigamon Professional Services.
- “Information Security Incident” means a breach of Vendor’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data in Vendor’s possession, custody or control.
- “Model Contract Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses and set forth in Appendix 4.
- “Offerings” means Gigamon Offerings and Insight Offerings.
- “Insight Offerings” means Insight SaaS and Insight Systems, and/or Insight Professional Services.
- “Personal Data” means any personal data as defined in the Data Protection Legislation, including GDPR that Vendor processes in connection with the Offerings.
- “Security Documentation” means Appendix 2 describing the Security Measures and any other documents and information made available by Vendor under Section 5.4 (Reviews and Audits of Compliance).
- “Security Measures” has the meaning given in Section 5.1.1 (Vendor’s Security Measures).
- “Subprocessors” means third parties authorized under this DPA to process Personal Data in relation to the Offerings.
- “Term” means the period from the DPA Effective Date until the end of Vendor’s provision of the Offerings pursuant to the Agreement.
- “Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
- The terms “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this DPA have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses.
Capitalized terms that are used but not otherwise defined in this DPA shall have the meanings given in the applicable Agreement.
2. Duration of DPA
This DPA will take effect on the DPA Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon termination or expiration of the Agreement, or until such time as Vendor no longer processes Personal Data.
3. Processing of Data
- Roles and Regulatory Compliance; Authorization.
- Processor and Controller Responsibilities. The parties acknowledge and agree that:
- the subject matter and details of the processing are described in Appendix 1a and/or Appendix 1b; and
- Vendor is a Processor of that Personal Data under Data Protection Legislation; and
- Customer is a Controller of that Personal Data under Data Protection Legislation; and
- Vendor will immediately inform Customer if it believes that Customer’s instructions with respect to the Processing of Personal Data violate the GDPR or Member State provisions; and
- each party will comply with the obligations applicable to it in such role under the Data Protection Legislation with respect to the processing of that Personal Data.
- Customer Responsibilities. Customer agrees that (a) Customer has established or ensured that another party has established a legal basis for Vendor’s processing of Personal Data contemplated by this DPA; (b) to the extent required by Data Protection Legislation given the context of the processing and unless another legal basis supports the lawfulness of processing, all notices have been given to, and consents and rights have been obtained from, the relevant data subjects and any other party as may be required under applicable law (including European Data Protection Legislation) for such processing; and (c) Personal Data does not and will not contain special categories of data as described in Article 9(1) of GDPR.
- Scope of Processing and Authorization.
- Customer’s Instructions. By entering into this DPA, Customer instructs Vendor to process Personal Data: (a) to provide the Gigamon Offerings; (b) as authorized by the Agreement, including this DPA; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Vendor.
- Vendor’s Compliance with Instructions. Vendor will only process Personal Data in accordance with Customer’s instructions described in Section 3.2.1 unless Data Protection Legislation requires otherwise, in which case Vendor will notify Customer (unless that law prohibits Vendor from doing so on important grounds of public interest).
4. Data Deletion
- Deletion on Termination. On expiry of the Term and at the choice of the Customer, Vendor will delete or return all the personal data to the Customer after the end of the provision of Offerings relating to processing, and deletes existing copies unless Union or Member State law requires storage of the Personal Data.
5. Data Security
- Vendor Security Measures, Controls and Assistance.
- Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller and the Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
- Vendor Security Measures. Vendor will implement and maintain technical and organizational measures designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data as described in Appendix 2 (the “Security Measures”).
- Security Compliance by Vendor Staff. Vendor will grant access to Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their job duties, and are subject to appropriate confidentiality arrangements or obligations no less protective than those set forth in the Agreement.
- Vendor Security Assistance. Vendor will (taking into account the nature of the processing of Personal Data and the information available to Vendor) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Personal Data under European Data Protection Legislation, including Articles 32 to 36 (inclusive) of the GDPR, by:
- implementing and maintaining the Security Measures in accordance with Section 5.1.2 (Vendor’s Security Measures); and
- complying with the terms of Section 5.2 (Information Security Incidents).
- Information Security Incidents.
- Information Security Incident Notification. If Vendor becomes aware of an Information Security Incident, Vendor will: (a) notify Customer of the Information Security Incident without undue delay including: (a.1) description of the nature of the Information Security Incident, (a.2) the name and contact details for the contact point to find more information, (a.3) the description of likely consequences of Information Security Incident, and (a.4) description of the measures taken or proposed to be taken to address the Information Security Incident including, where appropriate, measures to mitigate its possible adverse effects; and Vendor will (b) take prompt action, at its own expense, to investigate the Information Security Incident
- Customer’s Security Responsibilities and Assessment.
- Customer’s Security Responsibilities. Customer agrees that, without limitation of Vendor’s obligations under Section 5.1 (Vendor’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):
- Customer is solely responsible for its use of the Offerings, including:
- securing the account authentication credentials, systems and devices Customer uses to access the Offerings;
- securing Customer’s systems and devices that Vendor uses to provide the Offerings; and
- independently backing up Personal Data; and
- Vendor has no obligation to protect Personal Data that Customer elects to store or transfer outside the scope of this DPA.
- Customer’s Security Assessment. Customer is responsible for reviewing the Security Documentation and evaluating whether the Offerings, the Security Measures and Vendor’s commitments under this Section 5 (Data Security) will meet Customer’s needs.
- Reviews and Audits of Compliance.
- Customer may audit Vendor’s compliance with its obligations under this DPA up to once per year and on such other occasions as may be required by Data Protection Legislation, including where mandated by Customer’s supervisory authority. Vendor will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit.
- If a third party is to conduct the audit, Vendor may object to the auditor if the auditor is, in Vendor’s reasonable opinion, not independent, a competitor of Vendor, or otherwise manifestly unsuitable. Such objection by Vendor will require Customer to appoint another auditor or conduct the audit itself.
- To request an audit, Customer must submit a detailed proposed audit plan to Vendor at least thirty (30) days in advance of the proposed audit date and any third party auditor must sign a customary non-disclosure agreement mutually acceptable to the parties (such acceptance not to be unreasonably withheld) providing for the confidential treatment of all information exchanged in connection with the audit and any reports regarding the results or findings thereof. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Vendor will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Vendor security, privacy, employment or other relevant policies). Vendor will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require Vendor to disclose any information where such disclosure would result in a breach of any duties of confidentiality.
- If the controls or measures to be assessed in the requested audit are addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor within twelve (12) months of Customer’s audit request and Vendor has confirmed there are no known material changes in the controls audited, Customer agrees to accept such report in lieu of requesting an audit of such controls or measures.
- The audit must be conducted during regular business hours, subject to the agreed final audit plan and Vendor’s safety, security or other relevant policies, and may not unreasonably interfere with Vendor business activities.
- Customer will promptly notify Vendor of any non-compliance discovered during the course of an audit and provide Vendor any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this DPA.
- Any audits are at Customer’s expense. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this DPA shall be construed to require Vendor to furnish more information about its Third Party Subprocessors in a connection with such audits than such Third Party Subprocessors make available to Vendor without restriction on further disclosure.
6. Impact Assessments and Consultations
Vendor will (taking into account the nature of the processing and the information available to Vendor) reasonably assist Customer in complying with its obligations under Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by (a) making available for review copies of the Security Documentation or other documentation or information describing relevant aspects of Vendor’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement including this DPA.
7. Data Subject Rights
- Customer’s Responsibility for Requests. During the Term, if Vendor receives any request from a data subject in relation to the data subject’s Personal Data processed in connection with the Offerings, Vendor will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request, subject to the assistance to be provided by Vendor pursuant to Section 7.2 below.
- Vendor’s Data Subject Request Assistance. Vendor will (taking into account the nature of the processing of Personal Data) provide Customer with reasonable assistance as necessary for Customer to perform its obligation under Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in Chapter III of the GDPR.
8. Data Transfers
- Data Storage and Processing Facilities. Vendor may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Personal Data in the United States or anywhere Vendor or its Subprocessors maintains facilities.
- Transfers of Data Out of the EEA.
- Vendor’s Transfer Obligations. If Customer or its Affiliates are established in the EEA and Vendor’s processing of Personal Data involves transfers of Personal Data out of the EEA to Vendor in a country not deemed by the European Commission to have adequate data protection, and the European Data Protection Legislation applies to such transfer, such transfer will be governed by the Model Contract Clauses. For the purposes of the Model Contract Clauses, Customer and Vendor agree that (a) Customer will act as the data exporter on its own behalf and on behalf of any of its Affiliates and subsidiaries and (b) Vendor will act as the data importer.
- Model Contract Clauses Administration. The parties agree that (a) upon data exporter’s request under the Model Contract Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Model Contract Clauses, and that data importer may remove or redact all commercial information or clauses unrelated the Model Contract Clauses or their equivalent beforehand; (b) the audits described in Clause 5(f) and Clause 12(2) of the Model Contract Clauses shall be performed in accordance with Section 5.4 of this DPA; (c) Customer’s authorizations in Section 9.1 will constitute Customer’s prior written consent to the subcontracting by Vendor of the processing of Personal Data if such consent is required under Clause 5(h) of the Model Contract Clauses, provided that Vendor shall remain responsible with its Subprocessors’ acts or omissions under the Agreement including this DPA; and (d) certification of deletion of Personal Data as described in Clause 12(1) of the Model Contract Clauses shall be provided only upon Customer’s request.
- Consent to Subprocessor Engagement. Customer specifically authorizes and consents to the engagement of Vendor’s Affiliates as Subprocessors. In addition, Customer generally authorizes and consents to the engagement of any other relevant third parties as Subprocessors (“Third Party Subprocessors”) as needed to provide the Offerings. Vendor currently engages the Third Party Subprocessors listed in Appendix 3.
- Information about Subprocessors. Information about Subprocessors is available at Vendor’s Customer Portal (as may be updated by Vendor from time to time in accordance with this DPA).
- Requirements for Subprocessor Engagement. When first engaging any Subprocessor, Vendor will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in this DPA with respect to Personal Data to the extent applicable to the nature of the Offerings provided by such Subprocessor.
- Opportunity to Object to Subprocessor Changes.
When any new Third Party Subprocessor is engaged during the Term, Vendor will notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform) by updating the Service Subprocessor information posted on Vendor’s Customer Portal website. If Customer objects to such engagement in a written notice to Vendor within fifteen (15) days of being informed thereof on reasonable grounds relating to the protection of Personal Data, Customer and Vendor will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Vendor.
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Vendor to Customer under this DPA. may be given (a) in accordance with the notice clause of the Agreement; and/or (b) as described in Section 5.2.1; and/or (c) to Vendor’s primary points of contact with Customer.
11. Effect of These Terms
Except as expressly modified by the DPA, the terms of the Agreement remain in full force and effect. To the extent of any conflict or inconsistency between this DPA and the remaining terms of the Agreement regarding the subject matter herein, this DPA will govern.
12. Additional terms for Standard Contractual Clauses (Commission Decision C(2010)593 Standard Contractual Clauses (processors))
- These terms apply where the Standard Contractual Clauses (Commission Decision C(2010)593 Standard Contractual Clauses (processors)) are adopted by the parties in lieu of another adequate personal data transfer mechanism to the transfer of Customer Personal Data from the European Economic Area, Switzerland, or the United Kingdom to another jurisdiction not recognized as adequate by the European Commission, Swiss Federal Data Protection and Information Commissioner, or United Kingdom Information Commissioner’s Office respectively.
- The Standard Contractual Clauses and the additional terms specified in this Section 12 of this DPA shall apply to (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter and its Authorized Affiliates and, (ii) all Affiliates of Customer established within the European Economic Area, Switzerland and the United Kingdom, which have signed an Agreement for Gigamon’s Offerings. With regard to the Standard Contractual Clauses and this Section 12, the aforementioned entities shall be deemed “Data Exporters”.
- Instructions. This DPA and the Agreement are Customer’s complete and final documented instructions at the time of signature of the Agreement to Gigamon for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Customer to process Personal Data: (a) Processing in accordance with the Agreement and where applicable Order Form(s); (b) Processing initiated by Customer in their use of the Gigamon’s Offerings and (c) Processing to comply with other reasonable documented instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
- Appointment of new Subprocessors and List of current Subprocessors. Pursuant to Clause 5(h) of the Standard Contractual Clauses, Customer acknowledges and expressly agrees that (a) Gigamon’s Affiliates may be retained as Subprocessors; and (b) Gigamon and Gigamon’s Affiliates respectively may engage third-party Subprocessors in connection with the provision of the Gigamon’s Offerings. Gigamon shall make available to Customer the current list of Subprocessors in accordance with Section 9 of this DPA.
- Notification of New Subprocessors and Objection Right for new Subprocessors. Pursuant to Clause 5(h) of the Standard Contractual Clauses and consistent with Article 28 of the GDPR, Customer acknowledges and expressly agrees that Gigamon may engage new Subprocessors as described in Section 9 of the DPA.
- Sub-processor Agreements. The parties agree that Subprocessing obligations pursuant to Clause 11 of the Standard Contractual Clauses shall be carried out in accordance with GDPR Article 28. The parties agree that the copies of the Subprocessor agreements that must be provided by Gigamon to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial and confidential information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, redacted by Gigamon beforehand; and, that such copies will be provided by Gigamon, in a manner to be determined in its discretion, only upon written request by Customer.
- Audits. The parties agree that the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with Section 5.4 of this DPA. To the extent the Standard Contractual Clauses additionally require Gigamon’s facilities be submitted for inspection, Customer may contact Gigamon through prior written notice to request an on-site audit of the procedures relevant to the protection of Customer Personal Data. Customer shall reimburse Gigamon for any time expended for any such on-site audit at the Gigamon’s then-current professional services rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Gigamon shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. Customer shall promptly notify Gigamon with information regarding any noncompliance discovered during the course of an audit.
- Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) of the Standard Contractual Clauses shall be provided by Vendor to Customer only upon Customer’s request pursuant to Section 4 of this DPA.
- Conflict. In the event and to the extent of any conflict or inconsistency between the body of this DPA and any of its Schedules (not including the Standard Contractual Clauses) and the Standard Contractual Clauses in Appendix 4 in a way that materially affects the adequacy of the transfer, the Standard Contractual Clauses shall prevail.
Appendix 1a – INSIGHT OFFERING
Subject Matter and Details of the Data Processing
Vendor’s provision and operation of the Insight Offering to Customer.
Nature and Purpose of the Processing
The Gigamon Insight platform includes sensors or virtual machines (“VM”) that are deployed within the Customer’s network. These sensors or VMs generate metadata about the monitored network traffic provided by the Customer via TAP, SPAN, or similar mechanism to Vendor. To the extent that any such metadata includes Personal Data, it will be treated as such by Vendor.
Categories of Personal Data
Metadata generated through the sensor may include, among other things, a unique identifier per event, time and date, sensor and customer IDs, and source and destination IP addresses. The unique identifier cannot be mapped to a customer without additional secured access to logically separate system within the Insight Systems. The metadata may also contain domain, file, or user names, or other metadata associated with parsed network protocols. Depending on the Customer’s naming conventions, these fields could contain Personal Data.
Contact Information: In addition, when Customers’ employees contact Vendor for provisioning and/or support, Vendor may receive and use contact information (name, email, title, phone, address) for Customer’s employees for billing purposes. Vendor may also receive Personal Data (names and contact information of our customers’ employees), when our customers call us for support and as provided to Vendor’s Customer Success organization as part of working with the Customer’s assigned Technical Account Manager.
Categories of Statutorily Defined Data Subjects for Whom the Customer’s Personal Data Relates
Data subjects such as Customer’s employees and authorized personnel whose Personal Data Customer is responsible for and which Personal Data is processed in connection with the Insight Offering.
Appendix 1b – GIGAMON OFFERINGS
Subject Matter and Details of the Data Processing
Vendor’s delivery of Gigamon Offerings.
Nature and Purpose of the Processing
Vendor delivers Gigamon Offerings and/or provides Gigamon Professional Services.
Categories of Personal Data
Contact Information: Vendor receives and uses contact information (name, email, title, phone, address) for Customer’s employees for billing purposes. Vendor may also receive contact information of our customer’s employees, when these employees contact Vendor’s Customer Success organization requesting assistance with product issues.
Metadata: In select circumstances and only upon Customer’s initiation and direction, Customer may provide network access to Vendor’s Support Engineers or Professional Services Team, or transmit select packet capture data (including metadata) to Vendor’s Support Team and as a result Vendor will have access to metadata associated with packets traveling through Customer’s network for the sole purpose of providing Support or delivering Gigamon Professional Services. This metadata may contain domain, file or user names, and depending on the naming conventions used by the originator of the packet to which the metadata pertains, may include Personal Data.
Categories of Statutorily Defined Data Subjects for Whom the Customer’s Personal Data Relates
Data subjects such as Customer’s system user’s data and other individuals whose personal data Customer is responsible for and which personal data is processed in connection with support and or delivery of Gigamon Offerings.
As from the DPA Effective Date, Vendor will implement and maintain the Security Measures set out in this Appendix 2.
The technical and organizational security measures implemented by the data importer are as described in the DPA and the Agreement.
Amazon Web Services
Commission Decision C(2010)593
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: Customer as defined in the Agreement.
Other information needed to identify the organisation:
(the data exporter)
Name of the data importing organisation: Gigamon Inc.
Address: 3300 Olcott Street, Santa Clara, CA 95054
Tel.: +1 (408) 831-4000;
Other information needed to identify the organisation: none.
(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.
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.
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.
Third-party beneficiary clause
- 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.
- 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.
- 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.
- 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.
Obligations of the data exporter
The data exporter agrees and warrants:
- 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;
- 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;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- 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;
- that it will ensure compliance with the security measures;
- 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;
- 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;
- 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;
- 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
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia,
internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
- 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;
- 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;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- 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,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- 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;
- 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;
- 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;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- 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.
- 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.
- 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.
Mediation and jurisdiction
- 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:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- 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.
Cooperation with supervisory authorities
- 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.
- 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.
- 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- 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.
- 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.
- 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.
- 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.
Obligation after the termination of personal data processing services
- 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.
- 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.
The data exporter is (please specify briefly your activities relevant to the transfer):
Customer as defined in the Agreement.
The data importer is (please specify briefly activities relevant to the transfer):
The personal data transferred concern the following categories of data subjects (please specify):
Data subjects, such as Controller’s computer system and network users or other individuals whose Personal Data Controller is responsible for and which Personal Data is processed in connection with the Offerings.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Depending on the Offerings and the Controller’s naming conventions and environment, personal data, such as that possibly found in a computer name, user name or file name or the technical artifacts contemplated in the purposes described in the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
Provisioning/Use of Insight Offerings. Personal Data that may be collected and used during the provisioning and use of the Offerings to deliver, support and improve the Offerings, administer the Agreement and further the business relationship between you and Vendor, comply with law, act in accordance with your written instructions, or otherwise in accordance with this Agreement.
Personal data associated with the provisioning and operation of the Insight Offerings includes data included in machine event data, threat actor data, and Controller/Customer submitted data processed to monitor Customer’s selected network for adversary activity and to provide additional applications, modules, functionality, and services selected by Customer.
Insight Professional Services. Personal data gathered in connection with Professional Services for example as part of computer imaging, diagnostics and remediation in connection with the delivery of incident response or other forensics-oriented Professional Services.
Support; Account Information. Customer’s employees’ names and contact may be received in connection with technical support of the Offerings, administering your account, and enhancing your experience.