DATA PROCESSING ADDENDUM
This Data Processing Addendum, including all schedules attached hereto, (the “DPA”) is incorporated into and forms a part of the Enterprise Subscription Agreement (“Agreement”) entered into by and between the customer identified below (“Customer”) and the supplier identified below (“Supplier”) (each a “Party”, together the “Parties”) and is entered into as of the date of last signature below (the “Effective Date”). All capitalized terms used, but not defined in this DPA shall have the meanings set forth in the Agreement. In the event of a conflict between the Agreement and the DPA, the terms of the DPA shall prevail.
The parties hereby agree that the terms and conditions set out below shall be added as an addendum to the Agreement. The following obligations shall only apply to the extent required by Data Protection Laws (as defined below) with regard to the relevant Customer Personal Data, if applicable.
Definitions and interpretation
Data Protection
Relationship of the parties: The parties acknowledge and agree that with regard to the Processing of Customer Personal Data, Customer may either act as a Controller or Processor (to a third party Controller in respect to some of the Customer Personal Data) of Data, and Supplier is the Processor acting on behalf of Customer. Customer shall remain a Processor with respect to its customers and Customer (the Controller) appoints Supplier as a Processor to process the Customer Personal Data described in Appendix 1 that is the subject of the Agreement. Each Party shall comply with the obligations that apply to it under Applicable Data Protection Laws.
Customer Instructions: Supplier will Process Customer Personal Data in accordance with Customer’s documented instructions unless otherwise required by Applicable Data Protection Laws, in which case, Supplier will inform Customer of such Processing unless notification is prohibited by applicable law. Customer hereby instructs Supplier to Process Customer Personal Data: (a) to provide the Services to Customer; (b) to perform its obligations and exercise its rights under the Agreement and this Addendum; and (c) as necessary to prevent or address technical problems with the Services. Supplier will notify Customer if, in its opinion, an instruction of Customer breaches data protection laws. Customer’s instructions for the Processing of Customer Personal Data shall comply with all data protection laws.
Purpose limitation: Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Personal Data and the means by which Customer acquired such Customer Personal Data. Customer shall be responsible for: (i) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Customer’s use and disclosure of Supplier’s Processing of Customer Personal Data; and (ii) obtaining all necessary rights, and wherea applicable, all appropriate and valid consents to disclose such Customer Personal Data to Supplier to permit the Processing of such Customer Personal Data by Supplier for the purpose of performing Supplier’s obligations under the Agreement or as may br required by Applicable Data Protection Laws. Customer shall notify Supplier of any changes in, or revoacation of, the permission to use, disclose, or otherwise Process Customer Personal data that would impact Supplier’s ability to comply with the Agreement, this Addendum, or Applicable Data Protection Laws.
Supplier shall process the Customer Personal Data as a Processor only for the purposes described in Appendix 1 as necessary to perform its obligations under the Agreement and strictly in accordance with the documented instructions of Customer (the "Permitted Purpose"), except where otherwise required by any EU (or any EU Member State) law applicable to Supplier, in which case, Supplier will inform Customer of such Processing unless notification is prohibited by applicable law. In no event shall Supplier process the Customer Personal Data for its own purposes or those of any third party.Confidentiality of processing: Supplier shall ensure that any person that it authorises to process the Data (including Supplier's staff, agents and subcontractors) (an "Authorised Person") shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Data who is not under such a duty of confidentiality. Supplier shall ensure that all Authorised Persons process the Data only as necessary for the Permitted Purpose.
Details of Processing: The parties acknowledge and agree that the nature and purpose of the Processing of Customer Personal Data, the types of Customer Personal Data Processed, the categories of Data Subjects, and other details regarding the Processing of Customer Personal data are set forth in Appendix I.
Security: Supplier shall implement appropriate technical and organisational measures designed to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incident"). Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
At a minimum, such security measures shall include the measures identified in Appendix 2. Customer is responsible for reviewing the data security information in this Section 2.6 (the "Security Controls”) and making an independent determination as to whether these Security Controls meet Customer’s requirements. The Security Controls are subject to technical progress and further development and Supplier is permitted to implement alternative, adequate measures in the future provided that they do not diminish the security level of the specified measure.Subprocessing: Subject to the requirements of this Section 2.7, Customer generally authorizes Supplier to engage Subprocessors as Supplier considers reasonably appropriate for the Processing of Customer Personal Data. A list of approved subprocessors as of the Effective Date is attached at Exhibit A. Supplier is permitted to disclose Data to each approved Subprocessor pursuant to a written agreement that contains terms no less restrictive than those in this DPA and Applicable Data Protection Law. Supplier shall notify Customer of any addition or replacement of any Subprocessor at least 10 days prior to such engagement. Customer may object to such changes on reasonable data protection grounds by providing Supplier with written notice of such objection within ten (10) days. Upon receiving such an objection, where practicable and at Supplier’s sole discretion Supplier will use commercially reasonable efforts to: (a) work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; or (b) take corrective steps requested by Customer in its objection and proceed to use the new Subprocessor. If Supplier informs Customer that such change or corrective steps cannot be made, Customer may, as its sole and exclusive remedy available under this Section 2.7, terminate the relevant portion of the Agreement involving the Services which require the use of the proposed Subprocessor by providing written notice to Supplier. Supplier shall be liable for the acts and omissions of the Subprocessor to the extent Supplier would be liable under the Agreement and this Addendum.
Cooperation and data subjects' rights: Supplier shall, taking into account the nature of the Processing of Customer Personal Data and the functionality of the Services, provide reasonable assistance (including by appropriate technical and organizational measures insofar as they are possible) to Customer (at its own expense) necessary to enable Customer to fulfill its obligations under Applicable Data Protection Laws to respond to requests from a Data Subjects to exercise their rights under Applicable Data Protection Laws. In the event that any such request, correspondence, enquiry or complaint is made directly to Supplier, Supplier shall promptly inform Customer providing full details of the same. Supplier reserves the right to charge Customer on a time and materials basis in the event that Supplier believes that such assistance is onerous, complex, frequent, or time consuming. Supplier will advise the Data Subject to submit the request to Customer and Customer will be responsible for responding to any such request.
Data Protection Impact Assessment: In the event that Data Protection Laws require Customer to conduct a data protection impact assessment, transfer impact assessment, or prior consultation with a Supervisory Authority in connection with Supplier’s Processing of Customer Personal Data, following written request from Customer, Supplier shall use reasonable commercial efforts to provide relevant information and assistance to Customer to fulfill such request, taking into account the nature of Supplier’s Processing of Customer Personal Data and the information available to Supplier. Supplier reserves the right to charge Customer on a time and materials basis in the event that Supplier considers that such assistance is onerous, complex, frequent, or time-consuming.
Security Incidents: Upon becoming aware of a Security Incident, Supplier shall notify Customer without undue delay and otherwise respond as described in Section 2.12 below. In addition, Supplier shall take reasonable steps to identify the cause of the Security Incident, minimize harm, and prevent a recurrence. Supplier shall, taking into account the nature of the Processing and the information available to Supplier, take reasonable steps to provide Customer with information available to Supplier in order to assist Customer in ensuring compliance with its obligations under Applicable Data Protection Law to conduct a data protection impact assessment and, with prior notice, to assist with consultations with the competent supervisory authority, where required.
Practices. Supplier does and will: (a) maintain and follow a documented incident response plan and associated procedures consistent with industry standards for Security Incident handling; (b) investigate a Security Incident of which Supplier becomes aware, within the scope of the services described in the Agreement, and take such steps as Supplier in its sole discretion deems necessary and reasonable to remediate such Security Incident; and (c) notify Customer without undue delay upon confirmation of a Security Incident that is known or reasonably suspected by Supplier to affect Customer Data, and provide Customer with reasonably requested information about such Security Incident and the status of the remediation and restoration activities. The obligations herein shall not apply to a Security Incident caused by Customer, Customer’s authorized users or misuse of Customer’s access credentials.
Supplier’s obligation to report or respond to a Security Incident under this Section 2.12 is not and will not be construed as an acknowledgement by Supplier of any fault or liability of Supplier with respect to the Security Incident.
Customer Responsibilities. Customer agrees that, without limitation of Supplier’s obligations under this Section 2, Customer is solely responsible for its use of the Services, including: (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data; and (b) securing any account authentication credentials, systems, and devices Customer uses to access or connect to the Services, where applicable. Without limiting Supplier’s obligations hereunder, Customer is responsible for reviewing the information made available by Supplier relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Applicable Data Protection Laws.
Deletion or return of Data: Upon termination or expiry of this DPA, Supplier shall (at Customer's election) destroy or return to Customer all Data (including all copies of the Data) in its possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Supplier is required by any Applicable Data Protection Law to retain some or all of the Data, in which event Supplier shall isolate and protect the Data from any further processing except to the extent required by such law.
Audits of Security Controls: Supplier has and will maintain auditing procedures to audit its Security Controls, including maintaining compliance with SSAE 18 (SOC 1 or 2) or appropriate and comparable equivalents of these audit standards for the duration of processing of Customer Data. On reasonable written request from Customer, Supplier will provide a summary copy of an audit report or reports (“Report”) that reflects such compliance. Customer acknowledges and agrees that such Reports are Supplier’s Confidential Information. Supplier shall also provide a requesting Customer with a Report and/or confirmation of Supplier's own audits and/or a report of third party auditors' audits of its Subprocessors that have been provided by those Subprocessors to Supplier, to the extent such reports or evidence may be shared with Customer (“Third-party Subprocessor Audit Reports”). Customer acknowledges that (a) Reports and Third-party Subprocessor Audit Reports shall be considered Confidential Information as well as confidential information of the third-party Subprocessor and (b) certain third-party Subprocessors to Supplier may require Customer to execute a non-disclosure agreement with them in order to view a Third-party Subprocessor Audit Report.
CCPA. The terms “Business Purpose”, “Sell”, “Share”, “Sale”, “Commercial Purpose”, and “Service Provider” shall have the same meaning as in the CCPA and “Personal Information” shall mean any personal information (as defined in the CCPA) contained in Customer Personal Data. Supplier will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes specified in the Agreement, including for any Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA, or (ii) outside of the direct business relationship between Customer and Supplier; or (c) combine Personal Information received from, or on behalf of, Customer with Personal Data received from or on behalf of any third party, or collected from Supplier’s own interaction with Data Subjects, except to perform any Business Purpose permitted by the CCPA. Supplier understands the foregoing restrictions under this Section and will comply with them. The parties acknowledge that the Personal Information disclosed by Customer to Supplier is provided only for the limited and specified purposes set forth in the Agreement and this Addendum. Supplier will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA. Supplier will notify Customer if it makes a determination that it can no longer meet its obligations under the CCPA. If Supplier notifies Customer of unauthorized use of Personal Information, including under the foregoing sentence, Customer will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Information shared with Supplier, terminating the portion of the Agreement relevant to such unauthorized use, or such other steps mutually agreed between the parties in writing. Each Party is responsible for fulfilling its respective obligations set out in the CCPA.
International Transfers
Supplier may, subject to the remaining terms of this Section 3, Process Customer Personal Data in the United States or anywhere Supplier or its Subprocessors maintain facilities. Customer is responsible to ensure that its use of the Services complies with any cross-border data transfer restrictions of Applicable Data Protection Laws.
Customer hereby authorizes Supplier to perform International Data Transfers from an EU Member State or Switzerland to any country deemed adequate by the EU Commission; on the basis of appropriate safeguards in accordance with Data Protection Law; or pursuant to the EU SCCs referred to in Section 3.3.
By signing this DPA, Supplier and Customer conclude the EU SCCs, which are attached as Schedule 1 and hereby incorporated into this DPA and completed as follows: the “data exporter” is Customer; the “data importer” is Supplier; the governing law in Clause 17 of the EU SCCs is the law of Ireland; the choice of forum and jurisdiction in Clause 18 is Ireland; Annex 1 and 2 and 3 to the EU SCCs, are Appendix 1 and 2 and 3 to this DPA respectively. When Customer is acting as a Controller and Supplier is acting as a Processor, Module Two of the EU SCCs will apply to the Data transferred by Customer. When Customer is acting as a Processor and Supplier is acting as a Processor, Module Three of the EU SCCs will apply to the Data transferred by Customer.
If the Processing of Data by Supplier involves an International Data Transfer from the United Kingdom to Supplier or its Subprocessors located outside the United Kingdom then Customer authorizes such transfer in accordance with the UK SCCs which are incorporated into this DPA by reference and (a) Appendix 1 and 2 to the UK SCCs are Appendix 1 and 2 to this DPA and (b) the optional illustrative indemnification clause shall not apply.
If Supplier’s compliance with Data Protection Law applicable to International Data Transfers is affected by circumstances outside of Supplier’s control, including if a legal instrument for International Data Transfers is invalidated, amended, or replaced, then Supplier and Customer will work together in good faith to reasonably resolve such non-compliance.
Limitation of Liability
Each Party’s liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, is subject to the “Limitations of Liability” section of the Agreement. To the extent required by applicable law, this Section 4 is not intended to modify or limit the Parties’ liability for: (a) Data Subject claims made against a Party where there is joint and several liability under Applicable Data Protection Law or (b) limit either Party’s responsibility to pay penalties imposed on that Party by a regulatory authority.
Miscellaneous
This DPA shall be governed by, and construed in accordance with, the law of the State of California, USA and the courts located in San Francisco County, California shall have exclusive jurisdiction to hear any dispute or other issue arising out of, or in connection with, this DPA, except where otherwise required by Applicable Data Protection Law.
SCHEDULE 1
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
Clause 2
Effect and invariability of the Clauses
Clause 3
Third-party beneficiaries
Clause 4
Interpretation
Clause 5
Hierarchy
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.
Clause 6
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
Docking clause
SECTION II - OBLIGATIONS OF THE PARTIES
Clause 8
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.
8.1 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.
8.3 Transparency
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
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 person’s 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 Union2 (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:
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
Clause 9
Use of sub-processors
Clause 10
Data subject rights
Clause 11
Redress
Clause 12
Liability
Clause 13
Supervision
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
15.2 Review of legality and data minimisation
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
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.
Clause 17
Governing law
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Clause 18
Choice of forum and jurisdiction
Appendix 1
Data Processing Description
A. LIST OF PARTIES
The controller is the entity identified as “Customer” in the Data Processing Agreement.
Processor/Data importer
The processor is Panther Labs Inc., a Delaware corporation (“Supplier”).
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred:
Categories of personal data transferred:
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:
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis):
Nature of the processing:
Purpose(s) of the data transfer and further processing:
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
For transfers to (sub-)processors, also specify subject matter, nature and duration of the processing:
C. COMPETENT SUPERVISORY AUTHORITY
Appendix 2
Minimum Security Measures
Minimum security measures shall include an information security program that safeguards Customer Data and Customer confidential information. Such security measures must include the measures described at https://panther.com/security-annex/ and:
(a) strict logical or physical separation between Customer Data and Customer confidential information, Supplier’s own data and data of other customers of Supplier;
(b) maintaining industry-standard perimeter protection for Supplier’s network and devices connected thereto (“Supplier’s System”);
(c) applying, as soon as practicable, patches or other controls to Supplier’s System that effectively address actual or potential code-based security vulnerabilities;
(d) employing commercially reasonable efforts to ensure that Supplier’s System remains free of security vulnerabilities, viruses, malware, and other harmful code;
(e) employing commercially reasonable efforts to practice safe coding standard and practices which address common application security vulnerabilities;
(f) providing appropriate education and training to Supplier employees and workers regarding these security measures and ensuring that those individuals are bound by confidentiality obligations;
(g) accessing or transferring Customer Data or Customer confidential information to or from Customer systems only in a secure and confidential manner, including complying with specific security provisions and procedures set forth by Customer in advance in writing, and
(h) limiting Supplier employee/agent/subcontractor access to Supplier’s network, systems, devices and facilities to those with a need for such access, and whose access privileges shall be revoked promptly upon their termination.
Supplier shall provide to Customer an individual point of contact for security purposes, and shall update this information from time to time as necessary.
Appendix 3
Approved Subprocessors
Click the link to review Panther Lab’s current Approved Subprocessors list:
Endnotes
1: Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision […].
2: The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
3: This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
4: As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.