Data Protection Addendum – (DPA)
Outline
This Data Processing Addendum (this “DPA”) is incorporate into and made part of Edgio’s Terms of Service (the “Agreement”) between Edgio, Inc., its Affiliates and subsidiaries (together, “Edgio”) and Customer. If any provisions of this DPA conflicts with any provision of the Agreement, then the applicable provisions of this DPA control.
1. Definitions.
The following terms are used in this DPA and shall have the meanings set forth herein. Capitalized terms used in this DPA and not defined herein shall have the meaning set forth in the Agreement.
1.1 “Adequate Country” means a country or territory that is recognized under EU Data Protection Laws or the relevant competent authority of the United Kingdom (“UK”) as providing adequate level of protection for Personal Data.
1.2 “Applicable Data Protection Laws” means (i) the laws and regulations of the EEA and their member states, applicable to the Processing of Personal Data under this DPA, including the EU Data Protection Laws; (ii) the California Consumer Protection Act (“CCPA”) and the California Privacy Rights Act (“CPRA”); and (iii) all laws implementing or supplementing the foregoing and any other applicable data protection or privacy laws.
1.3 “Customer Personal Data” means any and all Personal Data that pertains to consumers (Customer’s “end users”) and is processed by Edgio or its sub-processors on behalf of the Customer in the performance of the Services and Edgio’s other obligations under the Agreement.
1.4 “EEA” means the European Economic Area, which includes the Member States of the European Union, as well as Norway, Iceland and Liechtenstein.
1.5 “EU Protection Laws” means (i) the GDPR; (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended and any legislation replacing this amended Directive, (iii) any national data protection laws made under, pursuant to, replacing or succeeding the foregoing, and (iv) where applicable, should be read as including UK Data Protection Laws.
1.6 “GDPR” means EU General Data Protection Regulation (Regulation 2016/679).
1.7 “Standard Contractual Clauses” in relation to the Processing of Personal Data pursuant to this DPA means (a) the standard clauses for the transfer of Personal Data from Controllers to Processors established in third countries approved by the European Commission from time to time, the current approved version of which is that set out in the European Commission’s Decision 2021/914 of 4 June 2021, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021D0914&from=EN, and set forth in Exhibit 2 (the “EU Standard Contractual Clauses”); and (b) the UK Addendum to the EU Standard Contractual Clauses, set forth in Exhibit 3 (the “UK Addendum”).
1.8 “UK Data Protection Laws” means all applicable law in relation to data protection, the processing of Personal Data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
1.9 “UK GDPR” means the United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
1.10 “Personal Data” means any information that constitutes “personal data” or “personal information” within the meaning of Applicable Data Protection Laws that Edgio may access in performing the Services under the Services Agreement.
1.11 “Processing”, “Process”, “Data Subject”, “Controller”, “Business” “Processor”, “Service Provider,” “Special Categories of Personal Data” have the meanings given to them by the Applicable Data Protection Laws, to the extent that such concepts exist in such laws.
2. Data Processing
2.1 Scope and Roles. In consideration of the mutual obligations set out herein, this DPA shall apply to the extent Edgio Processes Customer Personal Data subject to the Applicable Data Protection Laws in connection with the Services pursuant to the Agreement. In this context, Customer and Edgio acknowledge and agree that: (a) Edgio is a Processor and Customer is the Controller under the Applicable Data Protection Laws; and (b) Edgio acts as a mere conduit of any Personal Data that Customer or its End Users place on the Services. Edgio and Customer shall comply with Applicable Data Protection Laws for the Processing of Personal Data subject to the Applicable Data Protection Laws.
2.2 Processing Instructions.
(a) Customer Instructions. Edgio will Process Customer Personal Data as a means for providing the Services and in accordance with Customer’s documented instructions set forth in this DPA, or as otherwise mutually agreed between the parties in writing. If Edgio is required by Applicable Data Protection Laws to Process Customer Personal Data otherwise than as instructed by Customer, it will notify Customer before such Processing occurs unless prohibited from doing so by law.
(i) The purpose of Processing Customer Personal Data under this DPA is the provision of the Services initiated by Customer from time to time pursuant to the Agreement, which includes processing invoicing and payments, communicating with Customer end users and/or sub-processors about the Services, maintaining Customer, end user and/or sub-processor accounts, measuring and/or analyzing Service usage, preventing or detecting fraud or abuses of the Services and/or web site, maintaining and/or updating Services and/or enabling sub-processors to carry out technical, logistical or other functions on Edgio behalf in furtherance of the provision of the Services.
(ii) Edgio certifies that it will not (a) “sell” (as defined in the CCPA) or “share” (as defined in the CPRA) Customer Personal Data; (b) retain, use, or disclose Customer Personal Data for any purpose other than for the specific purpose of providing the Services under the Services Agreement, including retaining, using, or disclosing Customer Personal Data for a commercial purpose other the provision of the Services; or (c) retain, use, or disclose Customer Personal Data to any person other than as necessary to provide the Services or outside of the direct business relationship between the parties.
(iii) Customer represents and warrants that: (1) its Processing instructions comply with all Applicable Data Protection Laws; and (2) it has obtained and maintains all legally required notices, consents and permissions for the Processing and transfer of all Personal Data. Customer acknowledges that, taking into account the nature of the Processing, Edgio is not in a position to determine whether Customer’s instructions infringe Applicable Data Protection Laws.
(b) Confidentiality. Edgio imposes appropriate contractual obligations upon its personnel and third parties who have access to Personal Data, to ensure such personnel and third parties are bound by, and made aware of, their obligations of confidentiality with respect to such Personal Data.
(c) Edgio Security Measures. Edgio has implemented and maintains technical and organizational measures, set out in Exhibit 1 Part C, designed to protect Personal Data against accidental or unlawful destruction; or accidental loss, alteration, unauthorized disclosure, or access, and against other unlawful forms of Processing. Edgio may update or modify such technical and organizational measures from time to time, provided that such updates or modifications do not result in the degradation of the overall security of the Services. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing of Personal Data as well as the risks to end users) the technical and organizational measures implemented and maintained by Edgio as set forth in this Section 2.2(c) (Edgio Security Measures) provide a level of security appropriate to the risk in respect of Personal Data. In using the Services, Customer acknowledges that it should not configure its use of the Services to cache or store personal data on Edgio’s edge servers.
(d) Customer Security Obligations. Customer agrees that, without prejudice to Edgio’s obligations under Section 2.2(c) (Edgio Security Measures) and Section 6 (Data Breach Notification), Customer is solely responsible for its use of the Services, including: (1) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of Personal Data, e.g., choosing and employing encryption; and (2) securing account authentication credentials, systems and devices Customer uses to access the Services. Customer acknowledges that it is responsible for all actions taken on the Services using the Customer’s valid authentication credentials, including without limitation by end users, Customer’s vendors, or any other third parties acting on behalf of Customer.
(e) Special Categories of Data. Customer shall not, and shall not permit its end users to, directly or indirectly, transmit or otherwise provide to Edgio, in any manner, any Personal Data revealing or containing any of the following: racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union memberships, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation or relating to a natural person’s criminal convictions or offences.
3. Data Subject Rights
3.1 Taking into account the nature of the Services and the Processing, Customer acknowledges that Edgio makes available to Customer certain controls, features and functionalities as part of the Services, which Customer may elect to use in connection with its obligations under Applicable Data Protection Laws relating to requests from Data Subjects, including requests for return or deletion.
3.2 Customer is responsible for properly configuring the Services so that: (a) Personal Data is collected, transferred and used solely to the extent necessary for Customer to receive the Services; (b) Personal Data is retained for the shortest period required for Customer to receive the Services; and (c) Customer uses an API or similar technology to set up a log file request in the event Customer wishes to retain Personal Data for a period longer than retained by the Services.
3.3 To the extent the controls, features and/or functionalities of the Services do not include the option for Customer to delete Personal Data, then Edgio will comply with Customer’s reasonable request to facilitate such deletion, provided that Edgio determined that this is feasible, taking into account the nature of the Services and Processing and Edgio’s data retention practices, and unless Applicable Data Protection Laws require Edgio to retain the Personal Data. Edgio may charge a fee (based on Edgio’s reasonable costs) for any data deletion under this Section 3.3. Edgio will provide to Customer details of any applicable fee in advance of any such data deletion. Customer acknowledges its obligation to purge any Personal Data from its account upon termination of the Agreement, and any such Personal Data not purged by Customer will be deleted from Edgio’s systems in the ordinary course of its business processes.
4. Sub-Processing
4.1 Customer grants a general authorization: (a) to Edgio to appoint Edgio Affiliates as sub-processors; and (b) to Edgio and Edgio Affiliates to appoint third party service providers, including, without limitation, marketing, business, engineering or customer support providers, as sub-processors, solely as necessary to support the provision of the Services.
4.2 Customer acknowledges and agrees that Edgio maintains a list of its sub-processors via the following URL: https://read.edg.io/hubfs/Edgecast-Service-Supplements/Edgio-Sub-processor-Authorized.pdf (“Sub-processor Sites”). At least thirty (30) days before Edgio allows a new sub-processor to start Processing Customer Personal Data, Edgio will provide notice to Customer of such new sub-processor by adding such new sub-processor to the Sub-processor Site (“Notification Service”).
4.3 If Customer has a reasonable objection to Edgio’s use of a new sub-processor as notified via the Notification Service, Customer shall notify Edgio of any objection promptly in writing within ten (10) business days after receipt of the information via the Notification Service. In the event Customer puts forward a reasonable objection to a new sub-processor, Edgio agrees to engage in good faith discussions with Customer to address Customer’s objection. If Customer does not provide a timely objection to any new or replacement sub-processor in accordance with this Section 4.3, Customer will be deemed to have consented to such sub-processor and waived its right to object to such sub-processor. Edgio may use a new sub-processor while the objection procedure set forth in this Section 4.3 is in process.
4.4 Where Edgio engages sub-processors in accordance with Section 4.1 it will do so by way of a written agreement with the sub-processor (“Processing Sub-Contract”) which imposes substantively equivalent obligations on the sub-processor as are imposed on Edgio under this DPA. Edgio will remain liable to Customer for the performance of the sub-processors’ obligations under the terms of the Processing Sub-Contract.
5. Data Transfers
5.1 To the extent any Processing of Customer Personal Data by Edgio takes place in a location outside of an Adequate Country, the parties agree that the applicable Standard Contractual Clauses attached to this DPA in Exhibit 2 (EU Standard Contractual Clauses) and Exhibit 3 (UK Addendum) will apply in respect of the transfer of such Customer Personal Data from the EEA, Switzerland or the UK to Edgio. Edgio, as a Processor, will comply with the obligations of the ‘data importer’ in the Standard Contractual Clauses and Customer, as the Controller, will comply with the obligations of the ‘data exporter’.
5.2 The following terms shall apply to the Standard Contractual Clauses set out in Exhibit 2 and provided for in Exhibit 3:
(a) Customer may exercise its right of audit under Clause 8.9(c) of the Standard Contractual Clauses as set forth in, and subject to the requirements in Section 7 (Audit) of this DPA.
(b) Edgio may appoint sub-processors as set forth in, and subject to the requirements of, Section 4 (Sub-Processing) of this DPA.
5.3 Notwithstanding anything to the contrary in this Section 5, the Standard Contractual Clauses will not apply to the extent Customer has adopted an alternative recognized compliance standard for the lawful transfer of Customer Personal Data outside of an Adequate Country.
6. Data Breach Notification
6.1 Edgio will notify Customer without undue delay upon becoming aware that an actual security event has occurred, insofar as Edgio determines, in its sole discretion, that such security event compromises the security and/or confidentiality of Customer Personal Data (a “Data Breach”). In the event Edgio suffers a Data Breach, upon notice to Customer, the parties shall cooperate in good faith to agree and action such measures as may be necessary to mitigate or remedy the effects of the Data Breach. Edgio notification of or response to a Data Breach under this Section 6 (Data Breach Notification) shall not be construed as an acknowledgment by Edgio of any fault or liability with respect to the Data Breach.
6.2 In the event of a Data Breach, the Customer has full authority and responsibility to determine whether to notify affected individuals and other parties as required by applicable law, and the manner and timing of the notification.
7. Audit
7.1 Customer agrees its right of audit under the European Data Protection Laws in relation to Customer Personal Data is first exercised through a request that Edgio provide: (a) to Customer a summary copy of Edgio’s audit report(s) related to Edgio’s technical and organizational measures referenced in Section 2.2(c) (Edgio Security Measures), which reports shall be subject to the confidentiality provisions of the Agreement, and which reports shall demonstrate that Edgio’s technical and organizational measures are sufficient and in accordance with an accepted industry audit standard; and (b) additional information in Edgio’s possession or control to a relevant supervisory authority when it requests or requires additional information in relation to the Processing of Personal Data carried out by Edgio under this DPA.
7.2 After Customer has received the audit report pursuant to Section 7.1, and subject to the terms in Section 7.3, Customer or an independent third party auditor mandated by Customer may conduct a reasonable inspection of Edgio’s Processing environment that is relevant for the Processing of Customer Personal Data to verify Edgio’s compliance with its obligations under this DPA.
7.3 In the event of an audit pursuant to Section 7.2 above,
(a) Edgio shall, in accordance with European Data Protection Laws, make available to Customer such information in Edgio’s possession or control as Customer may reasonably request, to demonstrate Edgio’s compliance with its obligations under this DPA. Customer shall not exercise its audit rights more than once in any twelve (12) calendar month period. The audit shall be limited to business days (during normal business hours and excluding United States federal holidays) and the scope reasonably agreed upon by the parties in advance. Customer must give Edgio notice of an audit at least thirty (30) days in advance and take all reasonable measures to prevent unnecessary disruption to Edgio’s operations. Customer shall bear all costs and expenses related to such audit.
(b) Edgio may object to any third party auditor appointed by Customer to conduct any audit under Section 7.2 if the auditor is, in Edgio’s reasonable opinion, not suitably qualified or independent, a competitor of Edgio or otherwise manifestly unsuitable. Any such objection by Edgio will require Customer to appoint another auditor or conduct the audit itself.
(c) Nothing in this DPA will require Edgio to disclose to Customer or its third party auditor, or to allow Customer or its third party auditor to access:
(i) Any data of any other customers of Edgio or an Edgio Affiliate;
(ii) Any Edgio or Edgio Affiliate’s internal accounting or financial information;
(iii) Any trade secret of Edgio or a Edgio Affiliate;
(iv) Any information that, in Edgio’s reasonable opinion, could (1) compromise the security of any Edgio or Edgio Affiliate’s systems or premises; or (2) cause Edgio or any Edgio Affiliate to breach its obligations under the Applicable Data Protection Laws or its security and/or privacy obligations to Customer or any third party; or
(v) Any information that Customer or its third party auditor seeks to access for any reason other than the good faith fulfilment of Customer’s obligations under the Applicable Data Protection Laws.
(d) Customer will indemnify, defend and hold harmless Edgio from all costs and claims asserted by a third party, whether actual or alleged, that arise out of or in connection with the disclosure of Personal Data to Customer as a result of any such audit. Taking into account the nature of the Services and Processing, Customer acknowledges that Edgio is not in a position to identify individuals based on the end user information required from Customer for Edgio to provide the Services (e.g., and end user’s IP address).
8. General Provisions
8.1 Third Party Beneficiaries. Without prejudice to the rights granted under the Standard Contractual Clauses, this DPA does not confer any third-party beneficiary rights.
8.2 Non-Disclosure. Customer agrees that the details of this DPA are not publicly known and constitute Edgio Confidential Information as that term is defined in the Agreement.
8.3 Survival. This DPA shall remain in full force and effect during the applicable term of the Agreement, and, notwithstanding anything to the contrary herein, shall survive termination or expiration of the Agreement. Upon termination or expiration of the Agreement, Edgio may continue to Process Customer Personal Data provided that such Processing complies with the requirements of this DPA and Applicable Data Protection Laws.
8.4 Entire Agreement, Conflict. This DPA supersedes and replaces all prior or contemporaneous representations, understandings, agreements or communications between Edgio and Customer, whether written or verbal, regarding the Processing of Customer Personal Data. Except as amended in this DPA, the Agreement shall remain in full force and effect. In the event of any conflict between the terms of this DPA and the Agreement, the terms of this DPA shall prevail so far as the subject matter concerns the Processing of Customer Personal Data.
8.5 Amendment, Waiver. This DPA may be amended only in writing and signed by both parties. No failure or delay by a party to exercise or enforce any right herein shall operate as a waiver of any such right.
PART A Parties to the Controller to Processor Standard Contractual Clauses
Data Exporter:
Name: Per the Service Order.
Address: Per the Service Order.
Contact person’s name, position and contact details: Per the Service Order.
Activities relevant to the data transferred under these Clauses: Please see the activities described below for the Data Importer.
Role: Controller
Data Importer:
Name: Edgio, Inc.
Address: 11811 N. Tatum Blvd., Suite 3031, Phoenix, AZ 85028
Contact person’s name, position and contact details: Rich Diegnan, DPO, rdiegnan@edg.io
Activities relevant to the data transferred under these Clauses: Edgio Inc. provides content delivery network services, video streaming and related security services to digital media customers through a series of worldwide Points of Presence.
Role: Processor
PART B Subject Matter
Processing carried out in connection with the provision of the Services, which include Website Acceleration, WAF, Software download via the Edgio Network, and Advanced Bot Service.
Duration Nature of the Processing
Categories of personal data transferred:
Category
Data
Select as applicable
Personal Data of end users in Customer Content and Personal Data in Logged Data
Personal Data in Customer Content, if any, is chosen by the Customer. With respect to such data, processing, if any, of such data is limited to Edgio’s role as a conduit for such data. In order to provide the Services, Edgio may process and retain certain logged data, which involves the short term storage of IP Addresses of end users of the Data Exporter.
X
Sensitive data processed (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. |
Special Category
Data
None
Nature of the processing Edgio processes Customer Personal Data to provide content delivery and security services as a conduitof Customer Personal Data that Customer or its end users place on the Service. Edgio processes logged data for the purpose of providing the Services. Logged data is transferred to the US for billing, etc. purposes and stored on a short term basis.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The purpose of the data transfer and the further processing is to enable Edgio to provide the Services under the Agreement, to the extent necessary.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
The purpose of the data transfer and the further processing is to enable Edgio to provide the Services under the Agreement, to the extent necessary.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Depending on the Customer’s configuration of Services, applicable sub-processor details include those provided for at these links:
https://view.highspot.com/viewer/
616088e19bf7c594a5444f64
Competent supervisory authority
EU Standard Contractual Clauses: The supervisory authority with responsibility for ensuring compliance by the data exporter with GDPR as regards the data transfer shall act as competent supervisory authority.
UK Addendum to the EU Standard Contractual Clauses (where applicable): Where the data exporter is established in the United Kingdom or falls within the territorial scope of application of UK Data Protection Laws and Regulations, the Information Commissioner’s Office shall act as the competent supervisory authority.
Part C
Technical ad organizational measures
EDGIO INFORMATION SECURITY POLICY
Information Security Policy. Edgio maintains a formal, documented information security policy, which is based on various recognized industry security standards and is aligned to the NIST Cybersecurity Framework and is applicable to all Edgio employees and authorized users on Edgio assets.
Information Security Teams. Edgio maintains information security teams to promote and assist in the enforcement of Edgio’s information security policy and practices.
EDGIO COMPLIANCE WITH STANDARDS
Product Security. Applicable Services are designed and implemented with technical, logical, and physical controls that are adapted to the business and security needs of Edgio and its Customers. For applicable enterprise services, Edgio annually certifies the controls applicable to the Service under one or more of the following standards, guidelines, and practices:
PCI (PCI-DSS)
ISO 27001
SSAE-18 SOC 1, 2 or 3
Certificate Sharing. Where and when available, Edgio will provide a certificate for each Service Customer purchases, upon reasonable Customer request.
Protecting Edgio Certificates. Certificates provided to a Customer are considered confidential information.
CONTROLS
Edgio Controls. Edgio protects its networks using industry-recognized security practices, procedures, and tools specifically adapted to Edgio’s threat landscape and business environment.
Third Party Hardware Security. Edgio changes vendor-supplied defaults for system passwords and other security parameters.
Regular System and Security Testing. Edgio regularly tests systems and processes utilized for network security to maximize operational capacity.
Secure Software Development Cycle. Edgio develops and maintains systems designed to secure Customer Personal Data through privacy and cybersecurity risk assessments, and where appropriate uses automation in the development lifecycle to enforce controls, among other practices.
Mobile Device Management. Edgio corporate-issued devices, such as standard issue laptops and mobile phones, are maintained by identifiable individuals who are responsible and accountable for the device’s protection as well as the security of the data processed by such devices. Edgio assets must be physically locked or comparably secured whenever travelling with, transporting or utilizing equipment in non-Edgio physical environments.
Network Monitoring. Edgio utilizes network monitoring tools and procedures designed to identify unauthorized activity on Edgio networks.
SUPPLY CHAIN RISK MANAGEMENT
Contract Controls. Edgio utilizes contractual measures to mandate third-party Edgios’ compliance with appropriate information security requirements, such as Edgio’s information security standards, a supplier code of conduct and other risk management policies.
Edgio Risk Management. The Edgio has established governance, processes, and tools that are utilized across the Edgio enterprise to manage third-party risk. The program requires suppliers to meet or exceed security requirements based on Edgio’s corporate information security policies and industry best practices. These tools and practices may include that the supplier complete a questionnaire, provide controls evidence, and remote or on-site assessments. The program discovers issues with suppliers and works to resolve them in a timely manner.
ACCESS CONTROLS
Access Management
Logical Access Controls. Edgio maintains logical access control policies so that only authorized personnel have access to critical business applications and systems based on position and job requirements.
Unique User IDs. Edgio assigns each authorized user a unique user ID for accountability of actions.
Access Reviews. Edgio uses authorization reviews and role change processes to alert administrators of the necessity to modify and/or revoke access rights when an authorized user no longer requires access.
Activity Logging. Edgio policy requires the logging and monitoring of access to Edgio’s networks and Edgio assets.
Security Tools. Hardware and software-based tools have been deployed throughout the Edgio network to provide real-time alerting from devices such as firewalls, intrusion detection systems, routers and switches.
Event Logs. Critical Edgio assets are required to be configured to generate event logs. Event logs are retained in accordance with data retention and regulatory requirements.
Principle of Least Privilege. Edgio will generally utilize the Principle of Least Privilege to manage access for each of its systems. Privileged access for production network, system or application functions will generally be controlled and restricted to as few personnel as operationally feasible and is authorized on a “need to know” or “event by event” basis.
Multi-Factor Authentication for Remote Access. Edgio’s policy requires the use of multi-factor authentication to secure remote access to Edgio’s network and Edgio assets.
Identity Verification. Edgio’s access control policy requires that authorized user access credentials uniquely identify an individual person, system or service and be safeguarded. Access granted by those authorized user access credentials are required to be reviewed on a periodic basis to validate that it is still required.
De-provisioning. Access is required to be de-provisioned or removed when no longer required (e.g. job role change) or in the event of a termination.
PHYSICAL SECURITY
Physical Controls. Edgio utilizes controls to restrict physical access to facilities housing Edgio systems to authorized personnel.
Physical Access Management. Depending on the type of facility, access may be permitted by electronic card access readers, keys, security guards, or local company personnel.
Surveillance. CCTV cameras are deployed to strategic locations to protect personnel, operations and property.
Visitor Management. Edgio policy requires visitors to have and display Edgio-issued visitor badges at all times. Edgio requires visitors to sign-in on a visitor’s log prior to receiving a visitor badge. Edgio personnel are required to wear a company-issued ID badge at all times while on Edgio premises.
Data Center Security. Edgio requires physical security controls for each computer room, data center, and similar facilities.
EMPLOYEE AND CONTRACTOR INFORMATION SECURITY TRAINING
Annual Information Security Awareness Training. Edgio requires Edgio employees and contractors to complete training covering information security and cybersecurity annually to inform them of their role in information security.
PENETRATION TESTING
Edgio’s Internal Use of Penetration Testing. Edgio performs penetration testing on Edgio’s internal and external environments, based on risk.
Restrictions on Penetration Testing. Due to the security concerns posed to Edgio and its customers, Edgio does not permit customers to test the security status of network devices that Edgio owns, operates or that are located in a Edgio data center. Further, Edgio does not permit denial-of-service, flooding, or any similar test activity that involves significant consumption of network bandwidth.
FIREWALLS AND NETWORK SEGMENTATION
Firewalls & Security Tools. Edgio utilizes hardware and software-based tools (such as firewalls) throughout the Edgio network to provide real-time alerting from devices such as intrusion detection systems, routers and switches.
Network and System Architecture. Edgio uses system, software and network architecture practices to mitigate cyber risks.
BACK-UPS (not applicable to customer content)
Back-up Policies. Edgio formally maintains data backup policies and procedures where appropriate. Data back-ups are governed and considered when completing data mapping, retention or deletion activities.
Critical File Back-ups and Testing. Administrators are required to make regular backups of critical files and take appropriate precautions to protect information from compromise, loss or damage. In addition, administrators are required to perform periodic testing of backup/disaster recovery restoration procedures.
DATA RETENTION AND DATA DESTRUCTION (not applicable to customer content)
Data Retention Policy. Edgio policy requires the management and protection of data in a systematic and structured manner throughout the data’s lifecycle; from creation, transmission, storage, modification, retention and destruction.
System-Specific. Edgio manages data retention through the use of system-specific data retention summaries. A data retention summary records what data types the system contains, the purpose for collection and use of each data type, the triggering event(s) for destruction, and the time period the data should be held. These data retention summaries are required to comply with Edgio’s company-wide data retention schedule and any applicable laws, regulations and customer requirements.
Data Destruction. Edgio’s data destruction practices align with NIST 800-88, and encompass data contained on magnetic, solid state, optical media, and confidential paper documents.
INCIDENT RESPONSE/DATA BREACH
Program
Incident Response Plan. Edgio maintains a written, actionable incident response plan to enable Edgio to timely react to Data Breaches.
Response Plan Testing. Edgio’s incident response plan is tested through the use of tabletop exercises to coordinate and verify documented procedures.
Incident Response & Mitigation
Security Event Reviews. Security event data is reviewed and analyzed on a scheduled basis. Security events are required to be promptly escalated when pre-determined event thresholds are exceeded and responded to in accordance with a defined incident management process.
HUMAN RESOURCES
HR Systems; Deprovisioning. Edgio’s information security protocols and procedures are required to be embedded into all of the Edgio Human Resource systems and processes. Edgio’s Human Resources department (“HR”) and IT department have automated, auditable routines in place for account creation, role permissions and access deprovisioning covering a new employee request, a change in roles or termination of an employee.
Background Checks. Subject to applicable law, HR completes a comprehensive pre-employment background investigation of Edgio employees at their time of hiring, which includes criminal record, SSN, work authorization, and prohibited party list (e.g. Office of Foreign Assets Control) checks.
Edgio Code of Conduct. The Edgio Code of Conduct requires that Edgio employees comply with Edgio’s information security policies and procedures.
VULNERABILITY MANAGEMENT PROGRAM
Vulnerability Risk Mitigation. Edgio’s vulnerability management program is designed to implement and maintain practices and procedures to mitigate the risk of vulnerabilities in Edgio’s business environment.
Patch Management Process. To maintain a high level of functionality and security of its networks and hosted systems, Edgio has an established patch management process for production hardware and software installed on the Edgio network. Vendor security patches are initially assessed to determine risk and deployment priority. Once a patch has passed the proper testing procedures, it is then released for scheduling to be deployed into production.
Significant System Changes. Edgio schedules, monitors, controls, and tracks significant changes of Edgio assets.
Vulnerability Scans. Edgio performs internal and external vulnerability scans on a periodic basis. System owners may schedule real-time vulnerability system scans as needed to adapt to changing threat vectors.
Restrictions on Customer Scanning. Because of the potential to disrupt Edgio systems and create security risks for Edgio and its customers, Edgio does not permit customers (or their third parties) to test or scan Edgio assets.
Restrictions on Report Sharing. Edgio does not provide vulnerability reports or answer specific Common Vulnerability & Exposures (“CVE”) questions regarding the use and/or nonuse of specific hardware, software or third-party products deployed within the Edgio infrastructure.
BUSINESS CONTINUITY AND EVENT MANAGEMENT (“BCEM”)
Business Continuity Protocols. Edgio maintains business continuity and disaster recovery protocols designed to enhance Edgio’s ability to respond to significant events that might disrupt Edgio’s networks and facilities or otherwise impair Edgio’s ability to provide service.
Disaster Risk Assessment. Edgio’s business continuity and disaster recovery practices identify potential recovery risks to Edgio assets, and implement measures designed to help minimize and mitigate those risks using industry-accepted practices.
Dedicated Team Resources. Edgio develops and implements strategies designed to minimize recovery risks and validate Edgio’s response capabilities through rigorous standardized planning and periodic testing.
EXHIBIT 2: STANDARD CONTRACTUAL CLAUSES FOR USE IN TRANSFERS FROM THE EU
(Controllers to Processors)
COMMISSION IMPLEMENTING DECISION (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (controller to processor transfers).
Between Customer hereinafter “data exporter” And Edgio, Inc. hereinafter “data importer” each a “party”; together “the parties”,
In CONSIDERATION of the mutual covenants and promises contained herein
HAVE AGREED on the following Contractual Clauses (the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex 1.
SECTION I
Clause 1
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 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.
Clause 2
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.
Clause 3
Third-party beneficiaries
(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 – Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9 – Module Two: Clause 9(a), (c), (d) and (e);
(iv) Clause 12 –Modules Two: Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18 – Module Two: Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(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.
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
DELIBERATELY BLANK.
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
(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.
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
(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 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 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 benefiting 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 Regulation of (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 exporter’s 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.
Clause 9
Use of sub-processors
(a) The data importer has the data exporter’s 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 thirty (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 exporter’s 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-processor’s 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.
Clause 10
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.
Clause 11
Redress
(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.
Clause 12
Liability
(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 importer’s 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.
Clause 13
Supervision
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.
(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
Clause 14
Local laws and practices affecting compliance with the Clauses
(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.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(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
Clause 16
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.
Clause 17
Governing law
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 Ireland.
Clause 18
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 ofIreland.
(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.
Clause 19
Transfer subject to Swiss data protection law
(a) To the extent that the data protection and privacy laws and regulations of Switzerland (“Swiss Data Protection Law”) apply to a transfer of personal data, the data exporter and data importer agree that these Clauses are amended so that, with respect (only) to such transfer (and without limiting or affecting the application of these Clauses otherwise):
i. general and specific references in these Clauses to Regulation (EU) 2016/679 or “that Regulation” or EU or Member State law have the same meaning as the equivalent reference in Swiss Data Protection Laws;
ii. the term “Member State” will not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of these Clauses;
iii. the details of the transfers are those specified in Annex I where Swiss Data Protection Laws apply to the data exporter’s processing when making that transfer;
iv. these Clauses also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as “personal data” under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity; and
v. the Swiss Federal Data Protection and Information Commissioner is the competent supervisory authority for the purposes of Clause 13 of these Clauses.
ANNEX I OF EXHIBIT 2
A. LIST OF PARTIES
DATA EXPORTER(S): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
See Exhibit 1 Part A.
B. DESCRIPTION OF TRANSFER
See Exhibit 1 Part B.
C. COMPETENT SUPERVISORY AUTHORITY
See Exhibit 1 Part B.
ANNEX II OF EXHIBIT 2
See Exhibit 1 Part C.
ANNEX III OF EXHIBIT 2
LIST OF SUB-PROCESSORS
Not applicable.
EXHIBIT 3
UK ADDENDUM TO THE EU STANDARD CONTRACTUAL CLAUSES
Date of this Addendum:
1. This Addendum is effective from the same date as the Clauses.
Background:
2. The Information Commissioner considers this Addendum provides appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Articles 46 of the UK GDPR and, with respect to data transfers from controllers to processors and/or processors to processors.
Interpretation of this Addendum
3. Where this Addendum uses terms that are defined in the Annex those terms shall have the same meaning as in2.22 the Annex. In addition, the following terms have the following meanings:
This Addendum
The Annex
UK Data Protection Laws
All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.
4. This Addendum shall be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 GDPR.
5. This Addendum shall not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
6. Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re- enacted and/or replaced after this Addendum has been entered into.
Hierarchy
7. In the event of a conflict or inconsistency between this Addendum and the provisions of the Clauses or other related agreements between the Parties, existing at the time this Addendum is agreed or entered into thereafter, the provisions which provide the most protection to data subjects shall prevail.
Incorporation of the Clauses
8. This Addendum incorporates the Clauses which are deemed to be amended to the extent necessary so they operate:
a. for transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that transfer; and
b. to provide appropriate safeguards for the transfers in accordance with Articles 46 of the UK GDPR Laws.
9. The amendments required by Section 7 above, include (without limitation):
a. References to the “Clauses” means this Addendum as it incorporates the Clauses
b. Clause 6 Description of the transfer(s) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”
d. References to “Regulation (EU) 2016/679″ or “that Regulation” are replaced by “UK Data Protection Laws” and references to specific Article(s) of “Regulation (EU) 2016/679″ are replaced with the equivalent Article or Section of UK Data Protection Laws.
e. References to Regulation (EU) 2018/1725 are removed.
f. References to the “Union”, “EU” and “EU Member State” are all replaced with the “UK”
g. Clause 13(a) and Part C of Annex II are not used; the “competent supervisory authority” is the Information Commissioner;
h. Clause 17 is replaced to state “These Clauses are governed by the laws of England and Wales”.
i. Clause 18 is replaced to state:
j. “Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”
k. The footnotes to the Clauses do not form part of the Addendum.
Amendments to this Addendum
10. The Parties may agree to change Clause 17 and/or 18 to refer to the laws and/or courts of Scotland or Northern Ireland.
11. The Parties may amend this Addendum provided it maintains the appropriate safeguards required by Art 46 UK GDPR for the relevant transfer by incorporating the Clauses and making changes to them in accordance with Section 7 above.
Executing this Addendum
12. The Parties may enter into the Addendum (incorporating the Clauses) in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in the Clauses. This includes (but is not limited to):
a. By adding this Addendum to the Clauses and including in the following above the signatures in Annex 1A:
“By signing we agree to be bound by the UK Addendum to the EU Commission Standard Contractual Clauses dated:” and add the date (where all transfers are under the Addendum)
“By signing we also agree to be bound by the UK Addendum to the EU Commission Standard Contractual Clauses dated” and add the date (where there are transfers both under the Clauses and under the Addendum) (or words to the same effect) and executing the Clauses; or
b. By amending the Clauses in accordance with this Addendum, and executing those amended Clauses.
ANNEX I OF EXHIBIT 3
A. LIST OF PARTIES
DATA EXPORTER(S): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
See Exhibit 1 Part A.
B. DESCRIPTION OF TRANSFER
See Exhibit 1 Part B.
C. COMPETENT SUPERVISORY AUTHORITY
See Exhibit 1 Part B.
ANNEX II OF EXHIBIT 3
See Exhibit 1 Part C.
ANNEX III OF EXHIBIT 3
LIST OF SUB-PROCESSORS
Not applicable.
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