Enterprise Terms and Conditions
To the extent that Customer has executed a separate agreement with SecureW2, the terms of such executed agreement shall take precedence over this Agreement.
FURTHERMORE, IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
We may amend these Terms & Conditions at any time by posting a revised version of this Agreement. Please print a copy of this Agreement for your records.
Last updated: 12/22/2021
a. Administrator User means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customers behalf.
b. Affiliate shall mean, with respect to any party, all entities directly or indirectly controlling, controlled by or under common control with such party, where control may be by management authority, contract or equity interest.
c. Customer Content means all data and materials provided by Customer to SecureW2 for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.
d. Contractor means the independent contractors and consultants permitted by Customer to serve as Users of the Service, subject to the terms and conditions of this Agreement.
e. Documentation means the user guides, online help, release notes, training materials and other documentation provided or made available by SecureW2 to Customer regarding the use or operation of the SaaS Services.
f. EDIS means electronically downloaded and/or installed software that communicates with the SaaS Service.
g. Host means the computer equipment owned and operated by the Customer, on which the Software is downloaded and installed.
h. User means the persons designated and granted access to the Service by or on behalf of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
i. User Account means a unique collection of identity data, including but not limited to email address, name and phone number, for an individual that will be granted access to and/or managed by the SaaS Services for the purposes of providing single sign-on, managing passwords or certifying user access. Identity data may be physically or logically maintained in a single repository or in separate physical or logical repositories.
j. Other Services means all technical and non-technical services performed or delivered by SecureW2 under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in an Ordering Document to be mutually agreed upon by the parties.
k. Ordering Document" is a written document executed between the parties for the purpose of purchasing SaaS Services (such as a purchase order, order form or signed product quote) setting forth the key commercial terms, such as the products and services purchased, term and prices.
l. Software means any software to which Customer is provided access as part of the Service.
m. SaaS Services refer to the specific SecureW2s internet-accessible service identified in a Ordering Document that provides use of the Software that is hosted by SecureW2 or its services provider and made available to Customer over a network on a term-use basis.
n. Services refers to the SaaS Services, EDIS, and Other Services, as may be provided by SecureW2 as specified in an Ordering Document.
o. User means the persons designated and granted access to the Service by or on behalf of Customer, including its and its Affiliates Contractors.
a. SecureW2 will make the SaaS Services available to Customer for the Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and any applicable Ordering Document.
b. Customer may permit its Contractors and Affiliates to serve as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate.
c. Customer shall be responsible for each Users compliance with this Agreement.
d. To the extent use of the Services requires Customer to install Software, SecureW2 grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Term to use the object code form of the Software internally in connection with Customers and its Affiliates use of the Services, subject to the terms and conditions of this Agreement and the Documentation.
i. This Agreement permits use of the SaaS Services (i) only in accordance with its Documentation, (ii) only at the level of use of the SaaS Services that is specified in the Ordering Document at which Customer is authorized to execute or run the Software (Use Level), and (iii) only for Customers internal commercial business.
ii. Customer shall not (i) permit any unauthorized third parties to use Software, (ii) process or permit to be processed the data of any other party, (iii) de-compile, disassemble, reverse engineer, or in any manner attempt to learn the inner workings or derive the source code of the Software, (iv) remove or alter any proprietary legends or notices contained in the Software.
iii. Only SecureW2 shall have the right to modify, maintain, enhance, or otherwise modify the Software and its Documentation.
b. Proprietary Rights. SecureW2 retains all right, title, and interest, including copyrights, trade secrets, patents, and trademarks, in the Software and its Documentation, and any modifications or enhancements thereto or derivatives thereof. All copies of the Software are the exclusive property of SecureW2.
c. This Section will survive termination of this Agreement.
4. Customer Responsibilities.
a. Assistance. Customer shall provide commercially reasonable information and assistance including but not limited to access to identity management systems to SecureW2 to enable SecureW2 to deliver the SaaS Services. Upon request from SecureW2, Customer shall promptly deliver Customer Content to SecureW2 in an electronic file format specified and accessible by SecureW2. Customer acknowledges that SecureW2s ability to deliver the SaaS Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
b. Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including without limitation those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that SecureW2 exercises no control over the content of the information transmitted by Customer through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
c. Unauthorized Use; False Information. Customer shall: (a) promptly notify SecureW2 of any unauthorized use or any other known or suspected breach of security, (b) promptly report to SecureW2 and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any User Account user, and (c) not knowingly or intentionally provide false identity information to gain access to or use the SaaS Services.
d. Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrator Users. SecureW2 shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
e. Customer Content. Customer Content may not: (i) be defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate; (ii) contain or cause to be placed on SecureW2s or other third partys systems any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (iii) violate any applicable local, state, national or foreign law, rule or regulation, including privacy laws and privacy standards; (iv) violate any rule or policy of the Services; (v) infringe or violate any third party rights; or (vi) contain any health, medical, financial, credit card or other payment information or any information of any person. Customer Content that does not comply with clauses (i) (vi) above is referred to as Prohibited Information. Customer is responsible for reviewing and approving all Customer Content created or entered through or in its SecureW2 Account. Customer is solely responsible for monitoring the communications it receives from users of the Services and for removing any Prohibited Information from the Services. SecureW2 does not pre-screen Customer Content, however SecureW2 has the right, but not the obligation, to remove Prohibited Information from, or refuse to process any Prohibited Information on, from the Services and to make it unavailable through the Services, as SecureW2 may reasonably determine. In addition, upon notice, SecureW2 may terminate or suspend use by any authorized user that created or entered or processed such Prohibited Information.
f. Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.
g. License from Customer. Subject to the terms and conditions of this Agreement, Customer shall grant to SecureW2 a limited, revocable, non-exclusive, non-sublicensable and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer. Upon termination of this Agreement, SecureW2s license to the Customer Content shall cease, and upon a written request by Customer, SecureW2 shall destroy any and all Customer Content in its possession or under its control.
h. Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Third party technology that may be appropriate or necessary for use with some SecureW2 programs is specified in the program Documentation or ordering document as applicable. Customers right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by SecureW2 and not under the Agreement.
i. Suggestions. SecureW2 shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including all end users, relating to the operation of the Services.
5. Service Level Terms. The Service Level Terms for the SaaS Services is set forth in Exhibit B hereto. Exhibit B sets forth Customers sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in therein.
6. Personal Data. Customer hereby acknowledges and agrees that SecureW2s performance of this Agreement may require SecureW2 to process, transmit and/or store Customer personal data or the personal data of Customer employees or other Customer-related end users. Both parties and their Affiliates agree to comply with the Data Processing Addendum which is incorporated into this Agreement under Exhibit A when performing its obligations under this Agreement (DPA). The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller and SecureW2 is the Processor as such terms are defined in the Data Processing Addendum.
7. Commercial Terms.
a. Orders. Customer shall order SaaS Services pursuant to a Ordering Document. All services acquired by Customer shall be governed exclusively by this Agreement and the applicable Ordering Document. In the event of a conflict between the terms of a Ordering Document and this Agreement, the terms of the Ordering Document shall take precedence.
b. Invoicing and Payment. Unless otherwise provided in a Ordering Document, SecureW2 shall invoice Customer for all fees on the respective Ordering Documents within thirty (30) days of the invoice date, unless stated otherwise in an applicable Ordering Document . All fees set forth in an Ordering Document are payable in advance and are non-cancelable, non-refundable and are based on the Services purchased and not based on usage, unless stated otherwise in an applicable Ordering Document. Customer may withhold payment of any fees that are the subject of a good faith dispute of which Customer has provided SecureW2 written notice within five (5) business days of invoice receipt (Disputed Fees); provided that all fees which are not Disputed Fees shall be timely paid, and the Disputed Fees shall be paid within ten (10) days of resolution of the dispute.
c. Expenses. Customer will reimburse SecureW2 for all preapproved out-of-pocket travel and related expenses incurred in performing the Other Services. SecureW2 shall notify Customer prior to incurring any such expense. SecureW2 shall comply with Customers travel and expense policy if made available to SecureW2 prior to the required travel.
d. Taxes. SecureW2 shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customers purchase and use of the services. Customer shall not be liable for taxes based on SecureW2s net income, capital or corporate franchise.
a. Confidential Information means: (i) business or technical information, including product plans, designs, source code, management portal, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the Services are SecureW2s Confidential Information, and all of the foregoing as they relate to Customers business, are Customers Confidential Information); and (ii) information designated by the Disclosing Party as confidential or proprietary or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential (collectively, the Confidential Information).
b. The party receiving Confidential Information (Receiving Party) agrees: (i) not to reveal the Confidential Information of the party disclosing Confidential Information under this Agreement (Disclosing Party) to any third parties, except to those employees, contractors, or subcontractors who have a need to know PROVIDED THAT such employees, contractors, or subcontractors have executed written obligations to protect Confidential Information in accordance with this Agreement, and (ii) to take precautions, which shall be at least the more protective of (A) reasonable and prudent care or (B) those taken in safeguarding its own trade secret, confidential, or proprietary information, whether by instruction, agreement, or otherwise, to satisfy its obligations under this Agreement with respect to authorized use, protection, and security of the Confidential Information.
c. Exclusions. Confidential Information will not include information that the Receiving Party can demonstrate: (a) is or becomes generally known to the public not as a result of a disclosure by the Receiving Party; (b) is rightfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party; (c) is received by the Receiving Party in good faith and without restriction from a third party, not under a confidentiality obligation to the Disclosing Party and having the right to make such disclosure; or (d) can be shown with evidence was developed independently by or on behalf of the Receiving Party without the use of any Confidential Information of the Disclosing Party.
d. If the Receiving Party is ordered by a court or administrative agency of competent jurisdiction to disclose the Confidential Information of the Disclosing Party, the Receiving Party, unless prohibited by such order, shall give the Disclosing Party prompt advance notice so that the Disclosing Party may seek a protective order or other appropriate relief. The Receiving Party agrees that the wrongful disclosure of Disclosing Partys Confidential Information will cause the Disclosing Party irreparable injury that is inadequately compensable in monetary damages and, therefore, the Disclosing Party shall be entitled to seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of this Section, in addition to any other remedies at law or equity.
e. This Section will survive termination of this Agreement.
a. Mutual Warranties.
i. Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement and shall comply with all applicable laws.
b. SecureW2s Disclaimer of Warranties.
i. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, INCLUDING ALL FUNCTIONS THEREOF, ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ACCURACY OF CONTENT, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
c. Customers Warranties.
i. Customer hereby represents and warrants that none of the Confidential Information provided to SecureW2 is highly sensitive personal information, including without limitation Social Security Numbers, medical records, dates of birth, banking information, or financial information (Sensitive Private Information).
ii. Customer shall notify SecureW2 immediately if it becomes aware of an actual or reasonably suspected disclosure of Sensitive Private Information to SecureW2 (including without limitation accidental or malicious disclosure) with sufficient detail for SecureW2 to identify the subject Sensitive Private Information and take steps to prevent or minimize hardships from such disclosures. Thereafter, SecureW2 will delete the Sensitive Private Information.
i. Evaluation Customers. If Customer is using the Services for evaluation purposes and/or has not paid SecureW2 the applicable fees for the Services, SecureW2 does not offer any indemnification to such Customers.
ii. Commercial Customers. Subject to Customers payment of the applicable fees, SecureW2 will defend Customer against any claim by a third party alleging that any Service, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by SecureW2 (including reasonable attorneys fees) resulting from such claim. If Customers use of any Service results (or in SecureW2s opinion is likely to result) in an infringement claim, SecureW2 may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Ordering Document and refund to Customer the unused fees that Customer has pre-paid for the applicable Service. The foregoing indemnification obligation of SecureW2 will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service or Deliverable by any party other than SecureW2 or based on Customers specifications or requirements; (2) the combination of the Service with products or processes not provided by SecureW2; (3) any use of the Service in non-conformity with this Agreement; or (4) any action arising as a result of Customer data, or any deliverables or components not provided by SecureW2. This section sets forth Customers sole remedy with respect to any claim of intellectual property infringement.
b. Indemnification by Customer. If a third party makes a claim against SecureW2 that arises from or is related to Prohibited Information, Prohibited Content or that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend SecureW2 and its directors, officers and employees against the claim at Customers expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys fees) finally awarded against such parties or agreed to in a written settlement agreement approved by Customer, to the extent arising from the claim.
a. Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other partys expense, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 11 (INDEMNIFICATION), CUSTOMERS PAYMENT OBLIGATIONS, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTYS INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR (A) ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE; OR (B) AN AMOUNT THAT EXCEEDS, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY OR PAYABLE TO SECUREW2 FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION. This Section will survive termination of this Agreement.
12. Term and Termination.
a. The term of this Agreement will begin on the Effective Date and continue until expiration or termination of all Ordering Documents (the Term). Each Ordering Document will have its own term as stated in such document.
b. SecureW2 may terminate this Agreement upon 30 days prior written notice if: (i) the Customer materially breaches the Agreement and fails to cure the breach within 30 days after receipt of notice of such breach; or (ii) the Customer files a petition seeking bankruptcy protection, has an involuntary bankruptcy petition filed against it, has a receiver appointed, or otherwise declares its inability to maintain its business or pay its debts as they become due, unless such is dismissed within 90 days of the original filing.
c. Upon termination of this Agreement, all amounts then owed to SecureW2 shall immediately become due and payable, and Customer immediately will cease the use of the SaaS Services.
13. Assignment. Each party will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party and any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, each party may assign to an Affiliate or to a successor in connection with a merger, acquisition, re-organization, or spinoff.
14. Successors and Assignees. This agreement binds and benefits the heirs, successors, and permitted assignees of the parties.
15. Third Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either partys employees, agents, contractors, partners of customers or upon any other person or entity.
a. Governing Law. This Agreement shall be subject to, and interpreted by and in accordance with, the laws (excluding conflict of law provisions) of the Netherlands. The parties expressly waive application of the United Nations Convention on Contracts for the International Sale of Goods (CIGS).
b. Venue. Any cause of action for a breach or enforcement of, or a declaratory judgment respecting, this Agreement shall be commenced and maintained in the Amsterdam District Courts in the Netherlands.
c. Equitable Remedies. Each party agrees that breach of any provision of this Agreement will cause the other party irreparable injury that is inadequately compensable in monetary damages and, accordingly, that a party shall be entitled to seek injunctive relief in any court of competent jurisdiction against the breach or threatened breach of this Agreement, in addition to any other remedies in law or equity.
d. Export Regulations. Export laws and regulations of the European Union, the United States and/or any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
17. Notices. All notices must be in writing. A notice may be delivered to a party at the address that follows a party's signature or to a new address that a party designates in writing. A notice may be delivered:
a. in person,
b. by certified mail,
c. by overnight courier or
18. Entire Agreement. This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original of this Agreement, and which together will constitute one and the same instrument. The signature pages combined will create a document binding on all parties.
20. Modification. No amendment to this Agreement is effective unless made in writing and signed by authorized representatives of all the parties.
21. Waiver. If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this agreement, that party retains the right to enforce that term or provision at a later time.
22. Severability. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this agreement invalid or unenforceable and such provision shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.
Data Processing Addendum
This Data Processing Addendum (DPA) reflects the parties agreement with regard to the Processing of Personal Data, in accordance with the requirements of Data Protection Laws. This DPA is incorporated by reference as part of the Agreement between Customer and SecureW2.
This DPA reflects the parties agreement with regard to the Processing of Personal Data, in accordance with the requirements of Data Protection Laws. This DPA shall not replace any additional rights relating to Processing of Personal Data previously negotiated by Customer in the Agreement.
a. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b. Authorized Affiliate means any of Customers Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and SecureW2, but has not signed its own Ordering Document with SecureW2 and is not a Customer as defined under this DPA.
c. CCPA means the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., and its implementing regulations.
d. Controller means the entity which determines the purposes and means of the Processing of Personal Data as set forth in the GDPR.
e. Customer Data means the Personal Data of Customer that is uploaded or otherwise used for the Services.
f. Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states, applicable to the Processing of Personal Data under the Agreement.
g. Data Subject means the identified or identifiable person to whom Personal Data relates.
h. GDPR means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
i. Personal Data means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer data.
j. Processing means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
k. Processor means the entity which Processes Personal Data on behalf of the Controller, including as applicable any service provider as that term is defined by the GDPR and/or the CCPA.
l. SecureW2 Group means SecureW2 and its Affiliates engaged in the Processing of Personal Data.
m. Standard Contractual Clauses means the standard contractual clauses between controllers and processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, attached hereto as Appendix B.
n. Sub-processor means any Processor engaged by SecureW2 or a member of the SecureW2 Group.
o. Supervisory Authority means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. Processing of Personal Data.
a. Scope. This DPA applies when Customer Data is processed by SecureW2.
b. Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, SecureW2 is the Processor and that SecureW2 or members of the SecureW2 Group will engage Sub-processors pursuant to the requirements of applicable law.
c. Customers Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of SecureW2 as Processor. For the avoidance of doubt, Customers instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations and will not violate applicable privacy laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.
d. SecureW2s Processing of Personal Data. SecureW2 shall: (i) Process the Personal Data only for the purpose of providing the Services to Customer under the Agreement and applicable Ordering Document(s) and in accordance with Customers documented instructions; (ii) not Process the Personal Data for its own purposes or those of any third party; and (iii) Process to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
e. No Assessment of Customer Personal Data by SecureW2. SecureW2 shall have no obligation to assess the contents of Personal Data to identify information subject to any specific legal requirements. Customer is responsible for reviewing the information made available by SecureW2 relating to data security and making an independent determination as to whether the Services meet Customers requirements and legal obligations under Data Protection Laws.
f. Details of the Processing. The subject-matter of Processing of Personal Data by SecureW2 is the performance of the Services pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under the DPA are further specified in Appendix A (Details of the Processing).
3. Rights of the data subject.
a. Data Subject Request. SecureW2 shall, to the extent legally permitted, notify Customer without undue delay if SecureW2 receives a request from a Data Subject to exercise the Data Subjects right of access, right to rectification, restriction of Processing, erasure (right to be forgotten), data portability, object to the Processing, or its right not to be subject to an automated individual decision making, each such request being a Data Subject Request. Taking into account the nature of the Processing, SecureW2 shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customers obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, SecureW2 shall upon Customers request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent SecureW2 is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any costs arising from SecureW2s provision of such assistance.
a. Confidentiality of Customer Data. SecureW2 will not access or use, or disclose to any third party, any Customer Data, except, in each case, as necessary to maintain or provide the Services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends SecureW2 a demand for Customer Data, SecureW2 will attempt to redirect the governmental body to request that data directly from Customer. As part of this effort, SecureW2 may provide Customers basic contact information to the governmental body. If compelled to disclose Customer Data to a governmental body, then SecureW2 will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless SecureW2 is legally prohibited from doing so.
b. Limitation of Access. SecureW2 restricts its personnel from processing Customer Data without authorization by SecureW2 as described in this Agreement. SecureW2 imposes appropriate contractual obligations upon its personnel, including relevant obligations regarding confidentiality, data protection and data security.
a. Appointment of Sub-processors. Customer generally authorizes the engagement of Sub-processors and specifically consents to those listed at Annex III of the Standard Contractual Clauses attached hereto as of the Effective Date. Customer acknowledges and agrees that (a) SecureW2s Affiliates may be retained as Sub-processors; and (b) SecureW2 and SecureW2s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. SecureW2 or a SecureW2 Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in the Agreement with respect to the protection of Customer Data to the extent applicable to the nature of the Services provided by such Sub-processor.
b. Objection Right for New Sub-processors. Customer may object to SecureW2s use of a new Sub-processor by notifying SecureW2 promptly in writing within thirty (30) days of the Effective Date, provided that such objection is based on reasonable grounds relating to data protection. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, the parties will discuss Customers concerns in good faith with a view to achieving resolution. If Customer can reasonably demonstrate that the new Sub- processor is unable to Process Customer Personal Data in compliance with the terms of this DPA and SecureW2 cannot provide an alternative Sub-processor, or the parties are not otherwise able to achieve resolution as provided in the preceding sentence, Customer, as its sole and exclusive remedy, Customer may terminate the applicable Ordering Document(s) with respect only to those Services which cannot be provided by SecureW2 without the use of the objected-to new Sub-processor by providing written notice to SecureW2. SecureW2 will refund Customer any prepaid fees covering the remainder of the term of such Ordering Document(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
6. Security Incident Notification.
a. Security Incident. Subject to applicable law, SecureW2 shall (a) notify Customer of a Security Incident without undue delay after becoming aware of the Security Incident, and (b) take appropriate measures to address the Security Incident, including measures to mitigate any adverse effects resulting from the Security Incident.
b. SecureW2 Assistance. Subject to applicable law, to enable Customer to notify a Security Incident to supervisory authorities or data subjects (as applicable), SecureW2 will cooperate with and assist Customer by including in the notification under this Section 6(a) such information about the Security Incident as SecureW2 is able to disclose to Customer, taking into account the nature of the processing, the information available to SecureW2, and any restrictions on disclosing the information, such as confidentiality. Taking into account the nature of the processing, Customer agrees that it is best able to determine the likely consequences of a Security Incident.
c. Unsuccessful Security Incidents. Customer agrees that:
i. an unsuccessful Security Incident will not be subject to this Section. An unsuccessful Security Incident is one that results in no unauthorized access to Customer Data or to any of SecureW2s equipment or facilities storing Customer Data, and could include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorised access to traffic data that does not result in access beyond headers) or similar incidents; and
ii. SecureW2s obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by SecureW2 of any fault or liability of SecureW2 with respect to the Security Incident.
d. Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of Customers administrators by any means SecureW2 selects, including via email. It is Customers sole responsibility to ensure Customers administrators maintain accurate contact information at all times.
7. Customer Responsibilities.
a. Compliance with Laws.
i. Within the scope of the Agreement and in its use of the Services, Customer will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to SecureW2.
ii. In particular but without prejudice to the generality of the foregoing, Customer acknowledges and agrees that Customer will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring Customer have the right to transfer, or provide access to, the Personal Data to SecureW2 for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that Customers instructions to SecureW2 regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. Customer will inform SecureW2 without undue delay if it is not able to comply with its responsibilities under this sub-section (a) or applicable Data Protection Laws.
b. Controller Instructions. The parties agree that the Agreement (including this DPA), together with Customers use of the Services in accordance with the Agreement, constitute Customers complete and final Instructions to SecureW2 in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between SecureW2 and Customer.
a. Notwithstanding anything to the contrary in the Agreement or this DPA, each partys and all of its Affiliates liability, taken together in the aggregate, arising out of or relating to this DPA, the Standard Contractual Clauses, and any other data protection agreements in connection with the Agreement (if any), shall be subject to any aggregate limitations on liability set out in the Agreement. Without limiting either of the parties obligations under the Agreement, each party agrees that any regulatory penalties incurred by the one party (the Incurring Party) in relation to the Customer Personal Data that arise as a result of, or in connection with, the other partys failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce the Incurring Partys liability under the Agreement as if it were liability to the other party under the Agreement.
b. For the avoidance of doubt, SecureW2's total liability for all claims from the Customer and all of Customers Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under this Agreement, including by Customer and all Customers Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any of Customers Affiliate that is a contractual party to any such DPA.
c. Where a data subject asserts any claims against a party to this DPA in accordance with applicable Data Protection Laws, the other party shall support in defending against such claims, where possible.
a. This DPA is without prejudice to the rights and obligations of the parties under the Agreement, which shall continue to have full force and effect. In the event of any conflict between the terms of this DPA and the terms of the Agreement, the terms of this DPA shall prevail so far as the subject matter concerns the processing of Personal Data.
b. This DPA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions and agreements between the parties with respect to such subject matter. Other than in respect of statements made fraudulently, no other representations or terms shall apply or form part of this DPA.
c. This DPA will continue in force until the termination of the Agreement (the Termination Date).
d. No modification of, amendment to, or waiver of any rights under the DPA will be effective unless in writing and signed by an authorized signatory of each party.
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DETAILS OF THE PROCESSING
1. Nature and Purpose of Processing. SecureW2 will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Customer in its use of the Services.
2. Duration of Processing. SecureW2 will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
3. Categories of Data Subjects. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
a. Employees, contractors, guest and visitors of Customer (who are natural persons)
b. Customers Users authorized by Customer to use the Services
4. Type of Personal Data. Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to, the following categories of Personal Data:
c. Device MAC address
d. IP address
e. Device type/model
STANDARD CONTRACTUAL CLAUSES
This attachment is attached to and forms part of the Data Processing between Customer and SecureW2 governing the processing of Personal Data (the DPA). Unless otherwise defined in this attachment, capitalised terms used in this attachment have the meanings given to them in the Addendum.
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 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) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter entity/ies) transferring the personal data, as listed in Annex I.A. (hereinafter each data exporter), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each data importer)
have agreed to these standard contractual clauses (hereinafter: Clauses).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional
SECTION II OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679. 8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a persons sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter sensitive data), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter onward transfer) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporters request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Use of sub-processors
(a) The data importer has the data exporters general authorisation for the engagement of sub- processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporters request, a copy of such a sub- processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processors obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third -party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importers responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clause
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination including those requiring the disclosure of data to public authorities or authorising access by such authorities relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV FINAL PROVISIONS
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the district of Almelo, the Netherlands.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
Name: Customer name as per the Ordering Document
Address: Customer address as per the Ordering Document
Contact persons name, position and contact details: Customer contact as per the Ordering Document
Activities relevant to the data transferred under these Clauses: Uploading of data into the application/s of processor
Signature and date: As per the Ordering Document
Role (controller / processor): Controller
Name: SecureW2 B.V.
Address: Zekeringstraat 17, Amsterdam 1014 BM The Netherlands
Contact persons name, position and contact details: SecureW2 contact as per the Ordering Document
Activities relevant to the data transferred under these Clauses: The activities specified in Appendix A of the Addendum.
Signature and date: As per the Ordering Document
Role (controller / processor): Processor
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Employees, Contractors, Consultants, Guest, Visitors.
Categories of personal data transferred
The personal data transferred concern the following categories of data:
UserID data, Name, E-mail, Device MAC address, Device IP, Device Model/Type
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures
NO SPECIAL CATEGORY DATA
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis)
Personal data is transferred in accordance with Customers instructions as described in Appendix A of the Addendum.
Nature of the processing
The personal data transferred will be subject to the following basic processing activities:
Storage, Configuration, Maintenance
Purpose(s) of the data transfer and further processing
To provide the Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Not applicable because the data exporter determines the duration of processing in accordance with the terms of the Addendum.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The subject matter, nature and duration of the processing are described in Appendix A of the Addendum.
Identify the competent supervisory authority/ies in accordance with Clause 13
The data exporters competent supervisory authority will be determined in accordance with the GDPR.
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
(A) Data Privacy and Protection Measures
1 Governance and Operating Model
1.1 Vendor is committed to demonstrating accountability when Vendor processes personal data and has implemented an organizational structure, and roles and responsibilities for managing and providing oversight over the processing of personal data.
1.2 A number of governance structures have been implemented to ensure that data privacy and protection matters are reviewed by appropriate senior management of the Vendor. Ultimate accountability for data privacy and protection is held by the highest level of management in Vendor and is supported by designated roles throughout the business, including appointed Data Protection Leaders or equivalent roles, where required under applicable Data Protection Laws.
2 Policies, processes and Guidelines
2.1 Vendor has implemented and communicated its policies, processes, standards and guidelines that detail how Vendor employees are expected to process personal data.
2.2 Vendor has defined and communicated privacy notices that provide information about how personal data is processed.
2.3 Vendor has a Data Protection Impact Assessment (DPIA) process and performs DPIAs when required and in accordance with applicable Data Protection Laws.
3 Data Protection by Design
3.1 Vendor is committed to implementing reasonable measures to support its Customers ability to comply with applicable Data Protection Laws. As far as possible, the principles of data protection by design and by default are applied during the development and delivery of Vendor services.
4 Data Landscape
4.1 Vendor has implemented processes to identify, record, assess and maintain an accurate understanding of the personal data that Vendor processes.
4.2 Vendor maintains a record of the personal data processed in accordance with applicable Data Protection Laws and this Data Processing Agreement.
5 Information Lifecycle Management
5.1 Vendor has implemented policies and processes to ensure that personal data is processed appropriately throughout its lifecycle (from collection through to use, retention, disclosure and destruction).
5.2 Applicable Data Protection Laws in certain countries provide data subjects with specific rights in relation to their personal data. Vendor is committed to upholding these rights and ensuring that Vendor supports Customer in responding to data subject requests in a transparent, fair, ethical and lawful way.
5.3 Vendor maintains a record of all data subject requests received and the actions taken to respond to these requests. Vendor will provide support to Customer in responding to data subject requests and in accordance the Data Processing Agreement.
5.4 Vendor only retains personal data where there is a legitimate business purpose and in accordance with the existing agreement and the Data Processing Agreement. Vendor destroys, deletes or de-identifies personal data when there is no legitimate business reason to retain the personal data for a longer period.
5.5 Vendor keeps the personal data processed on behalf of Customer in accordance with the Data Processing Agreement and will destroy, delete, de-identify or return personal data when requested, to Customer, and where there are no further obligations to retain the personal data under applicable law.
5.6 Vendor has measures in place to ensure that personal data is accurate, complete and up to date.
5.7 Vendor has appropriate mechanisms in place, as outlined in the Data Processing Agreement to support the lawful transfer personal data outside of the country where it was originally collected and have appropriate agreements in place with Customer and Vendor subsidiaries, affiliates, and sub-processors to support cross-border transfers.
6 Data Privacy and Protection Training and Awareness
6.1 Vendor requires all employees to complete data privacy and protection training on an annual basis. All data privacy and protection policies, processes, standards and guidelines are available to employees and communicated regularly.
7 Breach Response and Notification
7.1 Vendor has policies, processes and procedures for identifying, detecting, responding, recovering and notifying appropriate stakeholders in the event of a personal data breach. This includes mechanisms for performing a root cause analysis and undertaking corrective actions.
7.2 Vendor is committed to ensuring that Vendor notifies Customer in the event of a personal data breach within 72 hours of becoming aware of such breach, in compliance with applicable Data Protection Laws and the Data Processing Agreement.
7.3 Vendor maintains a record of all personal data breaches and the actions taken to respond to these events and may provide this on request to Customer.
8 Third Party Management
8.1 Vendor is accountable for the actions of its processors (i.e. sub-processors) who process personal data on Vendors behalf and assesses the ability of our processors to protect personal data at the time of selection and on a periodic basis thereafter in accordance with Vendor policies.
8.2 Vendor processors are required to sign appropriate agreements that govern the processing and protection of personal data and require the same obligations, as outlined in the Data Processing Agreement, to be transferred to any further processors who Vendor may engage in accordance with the Data Processing Agreement. Vendor has ensured that data processing agreements are in place with all its processors (or sub-processors), that uphold the same standard of care as outlined in the Data Processing Agreement.
9 Monitor and Assess
9.1 Vendor reports on the design and operational effectiveness of its data privacy and protection activities to the Vendor senior management teams on a periodic basis.
(B) Information Security Measures
Vendor is committed to ensuring that information security control is implemented and properly managed, in order to protect the confidentiality, integrity and availability of personal data processed on behalf of and under the instruction of Customer.
10 Information Security
10.1 Roles and responsibilities for information security have been formally assigned, with reporting lines which ensure the independence of the function.
10.2 Vendor employees are responsible for ensuring that they act in accordance with the information security policies, processes, standards and guidelines in their day-to-day business activities.
10.3 Vendor has documented and published a set of information security policies that are aligned to industry best practices and standards for information security.
11 Human Resources
11.1 Vendor performs background and employment screening for its employees, to the extent permitted under applicable law, to ensure their suitability for hiring and handling company and Customer information (including personal data). The extent of the screening is proportional to the business requirements and classification of information that the employee will have access to.
11.2 Vendor requires that Vendor employees (including contractors and temporary employees) agree to maintain the confidentiality of Vendors internal and Customer Data (including personal data).
11.3 Vendor employees are required to complete information security awareness training on an annual basis. Information security policies and supporting procedures, processes and guidelines are made available to employees and employees receive relevant information about trends, threats and best practices.
12 Asset Management
12.1 Vendor has an acceptable use policy that supports the proper and effective use and protection of Vendor corporate assets, including computer and telecommunication resources, data, services, and IT infrastructure.
12.2 Vendor has an information classification policy that describes the appropriate technical and organizational controls for handling information based on its classification. Information and assets are protected in line with the classification label.
13 Access Controls
13.1 Vendor has an access control policy, supporting procedures and logical and physical access measures, to ensure that only authorized persons have access to information based on the principles of least privilege.
13.2 Access reviews are periodically performed on IT assets, applications, systems and databases to ensure only authorized individuals have access to Customer Data.
14 Physical and Environmental Security
14.1 Vendor has implemented reasonable and appropriate measures to prevent unauthorized physical access, damage or interference with Vendor information, applications, systems, databases and infrastructure.
15 Operational Security
15.1 Vendor has a policy and supporting procedures for managing changes to Vendor business processes, applications, systems, databases and infrastructure. Vendor has established several governance structures to review and approve any changes based on the size and scope of the change and strategic objectives. All requests and their outcomes are logged and documented.
15.2 Vendor has established a threat and vulnerability management program supported by industry standard tools for identifying, managing and mitigating risks to company information including the personal data of employees and Customer. This includes anti-virus and anti-malware tools, regular scanning of environments, patching protocols and management of remediation and improvement activities.
15.3 Vendor applies reasonable efforts to maintain audit logging on applications and systems. Logs are periodically reviewed and are available for investigation purposes. Access to logs is strictly limited to authorized personnel only.
16 System Acquisition, Development and Maintenance
16.1 Vendor has policies and supporting standards and procedures to ensure that security by design principles are applied within the software development lifecycle.
16.2 Vendor does not allow Customer Data to be used for testing purposes. In exceptional cases, Customer Data may be used with the written approval of Customer.
17 Third Party Management
17.1 Vendor has policies and supporting procedures to ensure that information assets are protected when Vendor engages third party service providers and/or processors (sub-processors). This includes requirements for information security due diligence and information security risk assessments to be performed, in order to ensure:
(a) Information Security requirements are clearly articulated and documented in the agreements with Vendor processors;
(b) Vendor processors implement the same level of protection and control as Vendor;
(c) Processors are required to report any suspected or actual information security incidents to Vendor in a timely manner.
17.2 Vendor has undertaken reasonable efforts to ensure that appropriate written agreements are in place with processors who have access to Customer information, applications, systems, databases and infrastructure. These agreements include Vendor information security standards for ensuring the confidentiality, integrity and availability of Vendor information.
18 Information Security Incident Management
18.1 Vendor has policies, processes and procedures for identifying, detecting, responding, recovering and notifying appropriate stakeholders in the event of an information security incident, including personal data breaches. This includes mechanisms for performing a root cause analysis and undertaking corrective actions.
19 Business Continuity
19.1 Vendor has established business continuity and disaster recovery plans with the Recovery Point Objective (RPO) of 2 hours and Recovery Time Objective (RTO) of 24 hours.
20.1 Vendor has established roles and responsibilities for identifying laws and regulations that affect Vendors business operations. Responsibility for compliance with laws and regulations are established.
The controller has authorized the use of the following sub-processors:
Current list of Sub-processors for the Services:
Amazon Web Services Inc.
602 619 955
All SaaS Data
AWS EMEA SARL
All SaaS Data
LCloud Sp. z.o.o.
DevOps and Monitoring
All SaaS Data
All SaaS Data
All SaaS Data
Depending on the geographic location of Customer or its Users, and the nature of the Service provided, SecureW2 may also engage one or more of the following Affiliates as Sub-processors to deliver some or all of the Services provided. The Affiliates access to Customer Data is similar to that of Vendors.
SecureW2 India Ltd