This Data Processing Addendum (“DPA”) is a part of the contracting document or documents and include one or more of the following or similarly structured documents (i.e. Master Service Agreement; Subscription Agreement, License Agreement or similar agreement) (the “Agreement”) between the entity signing the Order Form or other ordering document into which the Agreement is incorporated (“Customer”) and NAVEX Global UK Limited (hereinafter “NAVEX Global”) to reflect the parties’ agreement related to Processing of Customer Data, including Personal Data, in accordance with the requirements of applicable Data Protection Requirements.
HOW THIS DPA APPLIES
This DPA is an addendum to and forms part of the Agreement. For avoidance of doubt, this DPA shall apply to any entity that executes an ordering document that is governed by the Agreement.
This DPA shall not replace any additional rights related to Processing of Customer Data previously negotiated by Customer in the Agreement, but shall replace any existing data processing addendum to the Agreement unless otherwise explicitly stated herein.
To the extent any terms and conditions of this DPA conflict with the terms and conditions of the Agreement or any previously executed data processing terms, the terms and conditions of this DPA shall control.
For the avoidance of doubt, execution of the Order Form or other document into which this DPA is incorporated shall be deemed to constitute signature and acceptance of the Standard Contractual Clauses incorporated herein, including their Appendices.
DATA PROCESSING TERMS
In the course of providing the Services to Customer pursuant to the Agreement, NAVEX Global may Process Personal Data on behalf of Customer. NAVEX Global agrees to comply with the following provisions with respect to any Personal Data submitted by or for Customer to the Services or collected and Processed by or for Customer using the Services.
1) DEFINITIONS
a) “Affiliate” means, in relation to a party, its subsidiary or holding company or any subsidiary of any such holding company, the terms “subsidiary” and “holding company” having the meanings given to them under the applicable law.
b) “CCPA” or “California Consumer Privacy Act of 2018” means Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018, as amended from time to time.
c) “Customer Data” means any data and information Customer provides, generates, transfers, or makes available to NAVEX Global under the Agreement, whether in printed, electronic, or other format.
d) “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
e) “Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
f) “Data Protection Requirements” means all data protection and privacy laws and regulations, as applicable to a party, including: (i) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation or GDPR); the California Consumer Privacy Act of 2018 (CCPA), and (ii) any other local or regional data protection, data privacy or data security laws.
g) “Data Subject” means an identified or identifiable natural person whose Personal Data is collected and hosted by NAVEX Global on behalf of Customer, as may be more fully set forth in Data Protection Requirements, and shall be meant to include any different but similar term used in Data Protection Requirements.
h) “European Economic Area” means the member states of the European Union as well as Iceland, Liechtenstein and Norway.
i) “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
j) “NAVEX Global Group” means NAVEX Global and its Affiliates engaged in the Processing of Personal Data.
k) “Personal Data” means any information relating to an identified or identifiable natural person as further defined under Data Protection Requirements, which may include a term similar to Personal Data but which shall have the same general meaning (for example “personal information”), where such data is submitted to the Services as Customer Data as further specified in Appendix 1.
l) “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and shall be meant to include any different but similar term used in the Data Protection Requirements and as may be more fully set out in Appendix 1.
m) “Security Specifications” means the security measures employed by NAVEX Global to protect the Personal Data in its possession in connection with delivering the Services and as more fully set out in in Appendix 2.
n) “Standard Contractual Clauses” means the agreement executed by and between Customer and NAVEX Global and attached hereto as Schedule 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
o) “Sub-processor” means any Data Processor engaged by NAVEX Global or a member of the NAVEX Global Group.
2) PROCESSING OF PERSONAL DATA
a) Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller, NAVEX Global is a Data Processor and that NAVEX Global or members of the NAVEX Global Group will engage Sub-processors pursuant to the requirements set forth in section 8 “Sub-processing” below. Further, each party agrees to comply with its respective obligations under the Data Protection Requirements in relation to its Processing of the Personal Data and NAVEX Global agrees to provide all assistance reasonably required by Customer to enable Customer to take reasonable and appropriate steps to ensure that NAVEX Global effectively Processes Personal Data in a manner consistent with Customer’s obligations under Data Protection Requirements.
b) Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Requirements. For the avoidance of doubt, Customer’s instructions to NAVEX Global, for the Processing of Personal Data, shall comply with Data Protection Requirements. NAVEX Global shall inform Customer without undue delay if, in its opinion, an instruction infringes Data Protection Requirements. The foregoing notwithstanding, NAVEX Global is not obligated to evaluate whether an instruction issued by Customer complies with applicable Data Protection Requirements.
c) NAVEX Global’s Processing of Personal Data. NAVEX Global shall only Process Personal Data on behalf of and in accordance with Customer’s instructions and shall treat Personal Data as Confidential Information. Customer instructs NAVEX Global to Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by users in their use of the Services; and (iii) Processing to comply with other reasonable instructions by Customer that are consistent with the terms of the Agreement. Further, NAVEX Global agrees that it shall, in its capacity as Data Processor:
i) Only carry out Processing of Personal Data on Customer’s instructions, as set forth in the Agreement for the purpose of providing the Services;
ii) Provide at least the same level of protection to Personal Data as is required by this DPA and the Data Protection Requirements;
iii) ensure that persons authorized to Process the Personal Data are bound to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality;
iv) With the exception of those pre-approved Sub-processors detailed in section 8)b) and engaged in the performance of the Services, not share or allow access to files containing Personal Data to any third party for further Processing by that third party or its agents (except for the purposes of mere routing of Personal Data through a third party such as routing through a telecommunications carrier);
v) Promptly notify Customer if it makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by Data Protection Requirements, and in such event, to work with Customer to promptly take reasonable and appropriate steps to stop and remediate any Processing until such time as the Processing meets the level of protection as is required by the Data Protection Requirements;
vi) Implement and maintain throughout the term of this DPA appropriate technical and organizational measures to protect Personal Data against unauthorized or unlawful processing and accidental destruction or loss so as to allow Customer to comply with the requirement to implement appropriate technical and organizational security measures, in accordance with the Security Specifications and other applicable provisions of the Data Protection Requirements;
vii) At Customer’s sole election, cease Processing Personal Data promptly if in Customer’s reasonable discretion, NAVEX Global is not providing the same level of protection to Personal Data as is required by Data Protection Requirements.
viii) Keep or cause to be kept, accurate records relating to all Processing of Personal Data on behalf of Customer as part of the Services;
ix) Promptly refer to Customer any requests, notices or other communication from Data Subjects, any national data protection authority established in the jurisdiction of Customer, or any other law enforcement authority, for such Customer to resolve, and as the case may be:
(1) Provide all assistance reasonably required by Customer to enable Customer to respond to, comply with or otherwise resolve any request, question or complaint made to it by a Data Subject in relation to the Processing of Personal Data associated with such Data Subject; and
(2) Provide all assistance reasonably required by Customer to enable Customer to respond to, comply with or otherwise resolve any request, question or complaint made to it that is received from any national data protection authority established in the jurisdiction of the Customer, or any other law enforcement authority.
x) Provide reasonable assistance and support to Customer in Customer’s performance of any data protection impact assessments;
xi) Provide assistance to Customer in ensuring compliance, if applicable, with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of the Processing and the information available to NAVEX Global;
xii) NAVEX Global agrees it will not, in its capacity as Data Processor:
(1) Disclose Personal Data to any third party individual other than for the purposes of complying with Data Subject access requests in accordance with Data Protection Requirements and in accordance with this DPA, as applicable.
(2) Include Personal Data in any product or service offered by NAVEX Global to third parties.
d) California Consumer Privacy Act of 2018. The terms “Consumer,” “Personal Information,” “Sell,” “Service Provider,” and “Third Party” shall have the meanings ascribed to them under the CCPA.
i) NAVEX Global is a Service Provider and not a Third Party.
ii) NAVEX Global agrees to act solely as a Service Provider in relation to Personal Information of California residents and Customer alone determines the purposes and means of the processing of Personal Information.
iii) NAVEX Global will not Sell Personal Information of California Consumers, and the parties acknowledge and agree that Customer does not Sell Personal Data to NAVEX Global in connection with the Services.
iv) For the purposes of CCPA compliance, NAVEX Global certifies that NAVEX Global understands and will comply with the requirements and restrictions set forth in this DPA and with respect to any Personal Information subject to CCPA will not retain, use or disclose the Personal Information:
(1) for any purpose other than for the specific purpose of performing the services specified in the Agreement; or
(2) outside of the direct business relationship between Customer and NAVEX Global.
3) RIGHTS OF DATA SUBJECTS
a) Correction, Blocking and Deletion. To the extent Customer, in its use of the Services, does not have the ability to correct, amend, block or delete Personal Data, as required by Data Protection Requirements, NAVEX Global shall comply with any commercially reasonable request by Customer to facilitate such actions to the extent NAVEX Global is legally permitted to do so.
b) Data Subject Requests. NAVEX Global shall, to the extent legally permitted, without undue delay notify Customer if it receives a request from a Data Subject for access to, correction, amendment or deletion of that individual’s Personal Data. NAVEX Global shall not respond to any such Data Subject request without Customer’s prior written consent, or as required by Data Protection Requirements, except to confirm that the request has been received and relates to Customer. NAVEX Global shall provide Customer with commercially reasonable cooperation and assistance in relation to a Data Subject’s request for access to that individual’s Personal Data, to the extent legally permitted and to the extent Customer does not have access to such Personal Data through its use of the Services.
4) NAVEX GLOBAL PERSONNEL
a) Confidentiality. NAVEX Global shall ensure that its personnel engaged in Processing Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. NAVEX Global shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
b) Reliability. NAVEX Global shall take commercially reasonable steps to ensure the reliability of any NAVEX Global personnel engaged in the Processing of Personal Data.
c) Limitation of Access. NAVEX Global shall ensure that NAVEX Global’s access to Personal Data is limited to those personnel who require such access to perform under the Agreement.
d) Data Protection Officer. Members of the NAVEX Global Group have appointed a data protection officer where such appointment is required by Data Protection Requirements. The appointed person may be reached at privacy@navexglobal.com.
5) TECHNICAL AND ORGANIZATIONAL MEASURES AND SECURITY
a) NAVEX Global shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including Personal Data, as set forth in the Security Specifications. NAVEX Global regularly monitors compliance with these safeguards and will not materially decrease the overall security of the Services during the term of the Agreement.
b) NAVEX Global has obtained third-party certifications and audits as set forth in the Security Specifications. Upon Customer’s written request, at reasonable intervals, NAVEX Global shall provide a copy of NAVEX Global’s then most recent third-party audit or certification, as applicable, or any summaries thereof, that NAVEX Global generally makes available to its Customers at the time of such request.
c) Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, NAVEX Global shall, and shall procure that each Sub-Processor shall implement and maintain, appropriate technical and organizational measures in relation to the Processing of Personal Data by NAVEX Global or Sub-Processor to ensure a level of security appropriate to that risk including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
d) In assessing the appropriate level of security, NAVEX Global shall take into account all risks that are presented by Processing the relevant Personal Data, in particular from a Security Incident (as defined below).
6) SECURITY INCIDENT MANAGEMENT AND NOTIFICATION
a) Security Incident Notification. NAVEX Global maintains security incident management policies and procedures as indicated in the Security Specifications and shall, to the extent permitted by law, without undue delay notify Customer of any actual or reasonably suspected accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to Customer Data, including Personal Data, by NAVEX Global or its Sub-processors of which NAVEX Global becomes aware (a “Security Incident”). To the extent available, such notification shall describe the nature of the Security Incident, including the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned.
b) Security Incident Response. To the extent such Security Incident is caused by a violation of the requirements of this DPA by NAVEX Global, NAVEX Global shall: (i) reasonably cooperate with Customer to investigate and resolve the Security Incident; (ii) make reasonable efforts to identify and remediate the cause of such Security Incident; and (iii) keep Customer up-to-date about developments in connection with the Security Incident.
7) RETURN AND DELETION OF CUSTOMER DATA
a) NAVEX Global shall return Customer Data to Customer and delete Customer Data in accordance with the procedures and timeframes specified in the Agreement. In the event the foregoing is not specified in the Agreement, and unless otherwise agreed by the parties, all Customer Data shall be deleted within forty-five (45) days of expiration or termination of the Agreement or Order Form (as applicable). Customer Data stored in back-ups shall be overwritten in accordance with NAVEX Global’s backup and retention cycle.
8) SUB-PROCESSING
a) Customer authorizes NAVEX Global to appoint (and permit each Sub-processor appointed in accordance with this section to appoint) Sub-processors in accordance with this section.
b) NAVEX Global may continue to use those Sub-processors already engaged by NAVEX Global as at the date of this DPA. Customer consents to the use of the Sub-processors set forth in the following link (as applicable): https://www.navexglobal.com/en-us/service-hosting-providers. In addition, Customer acknowledges and agrees that NAVEX Global’s Affiliates may be retained as Sub-processors. The foregoing link contains a mechanism to subscribe to notifications of the addition of any new Sub-processors for each applicable Service, to which Customer may subscribe. Such updates provided via this mechanism shall operate as the notification of changes concerning the addition of any new Sub-processors, as required by Data Protection Requirements.
c) NAVEX Global will notify Customer in advance of any changes to the list of Sub-processors in place (except for deletions of Sub-processors without replacement) at least thirty (30) days in advance of any Processing by the proposed Sub-processor in accordance with the procedure set forth in section 8)(b) above. If Customer has a reasonable objection that relates to the Sub-processors’ Processing of Personal Data, Customer may object to NAVEX Global’s use of a Sub-processor by notifying NAVEX Global in writing at privacy@navexglobal.com within thirty (30) days after receipt of NAVEX Global’s notice. In such event, the Parties will work in good faith to discuss a resolution. NAVEX Global may choose to: (i) not use the Sub-processor to Process Personal Data for Customer or (ii) take the corrective steps requested by Customer in its objection and use the Sub-processor. If neither of these options are reasonably possible and Customer continues to object, Customer may provide notice of termination of the affected portion of the Service as to Customer.
d) NAVEX Global shall impose the same data protection obligations as set forth in this DPA, on each Sub-processor by way of a contract, providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Requirements.
e) Liability. NAVEX Global shall be liable for the acts and omissions of its Sub-processors to the same extent NAVEX Global would be liable if performing the services of each Sub-processor directly under the terms of this DPA.
9) AUDIT
a) During NAVEX Global’s regular business hours, but not any more frequently than once a year, Customer may, at its sole expense, perform a confidential audit of NAVEX Global’s technical operations directly related to the Services provided under the Agreement. Such audits shall not be duplicative of any additional audit right provided in the Agreement and shall be conducted on a mutually agreed upon date, which shall not be sooner than thirty (30) calendar days after NAVEX Global’s receipt of Customer’s written request for such audit. Such audits shall be limited to security systems as they pertain to the Services and the onsite portion shall not exceed a cumulative four (4) hours at NAVEX Global’s facilities. If the audit shall exceed such four (4) hour period, Customer shall be responsible for payment of professional services fees to NAVEX Global at the current hourly rate for professional services. If the audit is to be performed by a third party on Customer’s behalf, such third party shall execute a confidentiality and non-disclosure agreement as presented by and for the benefit of the Parties. Upon completion of the audit, Customer shall promptly provide NAVEX Global a summary of the findings from each report prepared in connection with any such audit and discuss results, including any remediation plans. If audit results find NAVEX Global is not in substantial compliance with the requirements of this DPA, then Customer shall be entitled, at NAVEX Global’s expense, to perform up to one (1) additional such audit in that year in accordance with the procedure set forth in this section. NAVEX Global agrees to work with Customer to identify reasonable remediation actions and to promptly take action at NAVEX Global’s expense to correct those matters or items upon which NAVEX Global and Customer mutually agreed are identified in any such audit that require correction.
10) STANDARD CONTRACTUAL CLAUSES
a) For transfers of European Personal Data to NAVEX Global in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing adequate data protection, NAVEX Global agrees it will transfer such data using the Standard Contractual Clauses, attached as Schedule 1. NAVEX Global shall promptly notify Customer of any inability by NAVEX Global to comply with the provisions of this Section 10.
11) LEGAL EFFECT
a) This DPA shall only become legally binding between Customer and NAVEX Global when the Order Form or other document into which it is incorporated is executed in full.
b) NAVEX Global’s obligations as set forth in this DPA shall survive until NAVEX Global no longer Processes Personal Data.
SCHEDULE 1
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection\
Name of the data exporting organisation: As set forth on the Order Form or other document into which the DPA is incorporated
Address: As set forth on the Order Form or other document into which the DPA is incorporated
Tel.: As set forth on the Order Form or other document into which the DPA is incorporated;
fax: As set forth on the Order Form or other document into which the DPA is incorporated;
e-mail: As set forth on the Order Form or other document into which the DPA is incorporated
Other information needed to identify the organisation:
……………………………………………………………
(the data exporter)
And
Name of the data importing organisation: NAVEX GLOBAL, INC. for itself and NAVEX GLOBAL UK LIMITED
Address: 5500 Meadows Road, Suite 500, Lake Oswego, Oregon 97035, USA
Tel.: +1-971 250 4100; fax: +1 971 250 4125; e-mail: privacy@navexglobal.com
Other information needed to identify the organisation: Not applicable
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1
Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1;
(b) ’the data exporter’ means the controller who transfers the personal data;
(c) ’the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ’the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ’the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ’technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
1 Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
Clause 2
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3
Third-party beneficiary clause
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The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
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The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
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The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
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The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5
Obligations of the data importer2
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
2 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
Clause 6
Liability
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The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
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If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Clause 7
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8
Cooperation with supervisory authorities
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The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
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The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
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The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Clause 9
Governing Law
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Clause 10
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11
Subprocessing
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The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses3. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
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The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
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The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
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The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
3 This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.
Clause 12
Obligation after the termination of personal data processing services
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The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
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The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
On behalf of the data exporter:
Name (written out in full): As set forth on the Order Form or other document into which the DPA is incorporated
Position: As set forth on the Order Form or other document into which the DPA is incorporated
Address: As set forth on the Order Form or other document into which the DPA is incorporated
Other information necessary in order for the contract to be binding (if any): None
Signature: As set forth on the Order Form or other document into which the DPA is incorporated
(stamp of organisation)
On behalf of the data importer:
Name (written out in full): Jessica Wilburn or Shon Ramey, as set forth on the Order Form or other document into which the DPA is incorporated
Position: Data Privacy Officer & Senior Counsel or General Counsel (respectively)
Address: 5500 Meadows Road, Suite 500, Lake Oswego, Oregon 97035, USA
Other information necessary in order for the contract to be binding (if any): None
Signature: As set forth on the Order Form or other document into which the DPA is incorporated
(stamp of organisation)
Image: stamp.jpgStyle: Full
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
Data Exporter is (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Client established within the European Economic Area (EEA) and Switzerland that have purchased Services on the basis of one or more Order Form(s).
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
NAVEX Global, Inc., and its affiliated companies, GCS Compliance Services Europe Unlimited Company trading as NAVEX Global; NAVEX Global UK Limited; or its wholly-owned subsidiaries, The Network, Inc. or Lockpath, Inc., are providers of governance, risk and compliance computing solutions, including whistleblower hotlines, case management systems, employee training systems, policy management systems, third party risk assessment systems, surveys and assessments and related consulting services, which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter has instructed Data Processor to collect and host certain information as may be submitted in the course of submitting a hotline report, information for employees to perform certain training and/or access to certain corporate policies and procedures, surveys and assessments, and/or information for third parties necessary to perform corporate due diligence. The information submitted may include Personal Data provided by the individual data subject or the organization in accordance with the relevant Services selected by such organization. The extent of the Personal Data collected is determined and controlled by the data exporter in its sole discretion, and may include, but is not limited to Personal Data relating to the following categories of data subjects:
• Clients, business partners and vendors of data exporter (who are natural persons)
• Employees or contact persons of data exporters’ third party suppliers, business partners and vendors
• Data exporter’s users authorized by data exporter to use the relevant Service(s)
Categories of data
The personal data transferred concern the following categories of data (please specify):
• name, job title, job position, location, employer, relationship with the organization, e-mail address, telephone number;
• for whistle-blower hotline reports, in addition to the foregoing, the following may also be captured:
o facts reported by a reporter about a suspected violation, including how and where the suspected violation occurred and how the reporter learned about the suspected violation;
o identity, function and contact details of individuals allegedly involved in the suspected violation; and
o identity, function and contact details of individuals who could provide information relating to the suspected violation.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
Data exporter, reporters or authorized users of the Services may submit special categories of data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data that may include information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.
DATA EXPORTER
Name: As set forth on the Order Form or other document into which the DPA is incorporated
Authorised Signature: As set forth on the Order Form or other document into which the DPA is incorporated
DATA IMPORTER
Name: Jessica Wilburn (Data Privacy Officer & Senior Counsel) or Shon Ramey (General Counsel), as set forth on the Order Form or other document into which the DPA is incorporated
Authorised Signature: As set forth on the Order Form or other document into which the DPA is incorporated
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the applicable Services, as described in the Security Specifications below, as updated from time to time, and made reasonably available by data importer upon request. In addition, data importer engages a third party, annually, to perform an audit that includes an assessment of the Security Specifications.
Security Specifications
In addition to an Information Security Policy, NAVEX Global, Inc. employs the following technical and organisational measures to safeguard the records within the Services.
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Physical access controls employed for preventing unauthorized persons from gaining access to data processing systems within which personal data is processed or used. |
Data center controls include:
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Admission control measures taken for preventing data processing systems from being used without authorization. |
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Virtual access control measures taken to ensure that persons entitled to use a data processing system have access only to personal data to which they have a right of access, and that personal data cannot be read, copied, modified or removed without authorizations in the course of processing or use and after storage. |
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Transmission control measures taken to ensure that personal data cannot be read, copied, modified or removed without authorization during electronic transmission or transport, and that it is possible to check and establish to which bodies the transfer of personal data by means of data transmission facilities is envisaged. |
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Input control measures taken to ensure that it is possible to check and establish whether and by whom personal data have been entered into data processing systems, modified or removed. |
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Assignment control measures employed to ensure that, in the case of commissioned processing of personal data, the data are processed strictly in accordance with the instructions of the principal. |
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Availability control measures taken to ensure that personal data are protected from accidental destruction or loss. |
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Separation control measures taken to ensure that personal data collected for different purposes can be processed separately. |
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DATA EXPORTER
Name: As set forth on the Order Form or other document into which the DPA is incorporated
Authorised Signature: As set forth on the Order Form or other document into which the DPA is incorporated
DATA IMPORTER
Name: Jessica Wilburn (Data Privacy Officer & Senior Counsel) or Shon Ramey (General Counsel), as set forth on the Order Form or other document into which the DPA is incorporated
Authorised Signature: As set forth on the Order Form or other document into which the DPA is incorporated