ETHYCA, INC.
Data Processing Agreement
Last Modified: September 2021
This Ethyca Data Processing Agreement and its Annexes (“DPA”) reflects the parties’ agreement with respect to the Processing of Personal Data by Ethyca on behalf of Customer in connection with the Services under the Ethyca Order Form and Master Subscription Agreement (including any Professional Services Statement of Work) between Ethyca and Customer (the “Agreement”).
This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which incorporation may be specified in the Agreement, an Order Form or an executed amendment to the Agreement. The terms and conditions of the Data Processing Agreement apply where the European Data Protection Laws or the CCPA applies to Customer or to Ethyca or to any of their respective Affiliates. In case of any conflict or inconsistency between any term of this DPA that relates to matters of data protection and the terms of the Agreement, this DPA shall take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
We periodically update the terms of this DPA. If you have an active Ethyca subscription, we will let you know when we do via email (if you have subscribed to receive email notifications via the link in our Agreement) or via in-app notification. You can find archived versions of the terms here.
The term of this DPA shall follow the Term of the Agreement. Word or phrases not otherwise defined herein shall have the meaning as set forth in the Master Subscription Agreement.
SCHEDULE 1
TERMS AND CONDITIONS
In particular but without prejudice to the generality of the foregoing, Customer acknowledges and agrees that it shall be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring it has the right to transfer, or provide access to, the Personal Data to Ethyca for Processing in accordance with the terms of the Agreement (including this DPA); (iv) ensuring that its Instructions to Ethyca regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. Customer shall inform Ethyca without undue delay if it is not able to comply with its responsibilities under this sub-section (a) or applicable Data Protection Laws.
The Services provides Customer with a number of controls that Customer may use to retrieve, correct, delete or restrict Personal Data, which Customer may use to assist it in connection with its obligations under Data Protection Laws, including its obligations relating to responding to requests from Data Subjects to exercise their rights under applicable Data Protection Laws (“Data Subject Requests”).
To the extent that Customer is unable to independently address a Data Subject Request through the Services, then upon Customer’s written request Ethyca shall provide assistance to Customer to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement.
If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to Ethyca, Ethyca will promptly inform Customer and will advise the Data Subject to submit their request to Customer. Customer shall be responsible for responding to any such Data Subject Requests or communications involving Personal Data.
Customer agrees that Ethyca may engage Sub-Processors to Process Personal Data on Customer’s behalf. Ethyca has currently appointed, as Sub-Processors, the Ethyca Affiliates and third parties listed in Sub-Processors List. Ethyca shall notify Customer if it adds or removes Sub-Processors prior to any such changes, if Customer opts-in to receive such email notifications by completing the form available here.
Where Ethyca engages Sub-Processors, Ethyca will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA, to the extent applicable to the nature of the services provided by such Sub-Processors. Ethyca will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause Ethyca to breach any of its obligations under this DPA.
Customer acknowledges and agrees that Ethyca may access and Process Personal Data on a global basis as necessary to provide the Services in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by Ethyca, Inc. in the United States and to other jurisdictions where Ethyca Affiliates and Sub-Processors have operations. Ethyca shall ensure such transfers are made in compliance with the requirements of Data Protection Laws.
(a) Standard Contractual Clauses: Ethyca, Inc. agrees to abide by and process European Data in compliance with the Standard Contractual Clauses. If and to the extent the Standard Contractual Clauses (where applicable) conflict with any provision of this DPA, the Standard Contractual Clauses shall prevail to the extent of such conflict.
ANNEX 1
DETAILS OF PROCESSING
This Annex forms part of the DPA.
Ethyca will Process Personal Data as necessary to provide the Services pursuant to the Agreement, as further specified in the Agreement, and as further instructed by Customer in its use of the Services.
Subject to the “Deletion or Return of Personal Data” section of this DPA, Ethyca will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.
Customer may submit Personal Data in the course of using the Services, the extent of which is determined and controlled by Customer in its sole discretion. Personal Data submitted may concern the following categories of data subjects:
Customer’s Authorized Users,Customer’s employees, suppliers, customers, job applicants, consultants, visitors, prospects, contractors, trainees, next of kin.
Data Subjects may also include individuals attempting to communicate with or transfer Personal Data to Customer’s Authorized Users.
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include but is not limited to the following categories of Personal Data:
Name, email address, telephone number, address, job titles, device ID, IP address, location data, education information, identification numbers, order information, transactional information
The parties do not anticipate the transfer of special categories of data.
Personal Data will be Processed in accordance with the Agreement (including this DPA) and may be subject to the following Processing activities:
a) storage and other Processing necessary to provide, maintain and improve the Services provided to Customer;
b) disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws;
c)collection and storage of subject personal identifiers (such as but not limited to, email, phone number, device id) on behalf of Customers to demonstrate compliance with subject requests for data access, rectification, portability and erasure;
d) analysis of subject activity while using Ethyca systems for performance monitoring, system optimization and error resolution;
e) reporting of subject personal identifiers (such as but not limited to, email, phone number, device id) to Customers in order to demonstrate compliance with subject requests for data access, rectification, portability and erasure;
f) tracking of subject consent preferences related to purposes of processing on behalf of Customers to ensure data processing adheres to users’ consent preferences; and/or
g) review of subject information in exceptional circumstances related to system errors, subject enquiry or issue resolution on behalf of Customers.
ANNEX 2
SECURITY MEASURES
This Annex forms part of the DPA.
Ethyca currently observes the Security Measures described in this Annex 2. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement.
Outsourced processing: Ethyca hosts its Service with outsourced cloud infrastructure providers. Additionally, Ethyca maintains contractual relationships with vendors in order to provide the Service in accordance with our Data Processing Agreement. Ethyca relies on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.
Physical and environmental security: Ethyca hosts its product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.
Authentication: Ethyca implemented a uniform password policy for its customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data.
Authorization: Customer Data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of Ethyca’s products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.
Application Programming Interface (API) access: Public product APIs may be accessed using an API key or through Oauth authorization.
Ethyca implements industry standard access controls and detection capabilities for the internal networks that support its products.
Access controls: Network access control mechanisms are designed to prevent network traffic using unauthorized protocols from reaching the product infrastructure. The technical measures implemented differ between infrastructure providers and include Virtual Private Cloud (VPC) implementations, security group assignment, and traditional firewall rules.
Intrusion detection and prevention: Ethyca implemented a Web Application Firewall (WAF) solution to protect hosted customer websites and other internet-accessible applications. The WAF is designed to identify and prevent attacks against publicly available network services.
Static code analysis: Security reviews of code stored in Ethyca’s source code repositories is performed, checking for coding best practices and identifiable software flaws.
Penetration testing: Ethyca maintains relationships with industry recognized penetration testing service providers for four annual penetration tests. The intent of the penetration tests is to identify and resolve foreseeable attack vectors and potential abuse scenarios.
Bug bounty: A bug bounty program invites and incentivizes independent security researchers to ethically discover and disclose security flaws. Ethyca implemented a bug bounty program in an effort to widen the available opportunities to engage with the security community and improve the product defenses against sophisticated attacks.
Product access: A subset of Ethyca’s employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access is enabled through “just in time” requests for access; all such requests are logged. Employees are granted access by role, and reviews of high risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months.
Background checks: All Ethyca employees undergo a third-party background check prior to being extended an employment offer, in accordance with and as permitted by the applicable laws. All employees are required to conduct themselves in a manner consistent with company guidelines, non-disclosure requirements, and ethical standards.
In-transit: Ethyca makes HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer site hosted on the Ethyca products. Ethyca’s HTTPS implementation uses industry standard algorithms and certificates.
At-rest: Ethyca stores user passwords following policies that follow industry standard practices for security. Ethyca has implemented technologies to ensure that stored data is encrypted at rest.
Detection: Ethyca designed its infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Ethyca personnel, including security, operations, and support personnel, are responsive to known incidents.
Response and tracking: Ethyca maintains a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, Ethyca will take appropriate steps to minimize product and Customer damage or unauthorized disclosure. Notification to Customer will be in accordance with the terms of the DPA or Agreement.
Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.
Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones.
Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.
Ethyca’s products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists Ethyca operations in maintaining and updating the product applications and backend while limiting downtime.
ANNEX 3
STANDARD CONTRACTUAL CLAUSES
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,
The Customer, as defined in the Ethyca Customer Terms of Service (the “data exporter”)
And
Ethyca Inc., 45 W 21st St Suite 403, New York, NY 10010, USA (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:
‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
‘the data exporter’ means the controller who transfers the personal data;
‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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
Clause 4
Obligations of the data exporter
The data exporter agrees and warrants:
Clause 5
Obligations of the data importer
The data importer agrees and warrants:
Clause 6
Liability
Clause 7
Mediation and jurisdiction
Clause 8
Cooperation with supervisory authorities
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
Clause 12
Obligation after the termination of personal data-processing services
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
Defined terms used in this Appendix 1 shall have the meaning given to them in the Agreement (including the DPA).
Data exporter
The data exporter is the legal entity specified as “Customer” in the DPA.
Data importer
The data importer is Ethyca, Inc.
Data subjects
Please see Annex 1 of the DPA, which describes the data subjects.
Categories of data
Please see Annex 1 of the DPA, which describes the categories of data.
Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
Purposes of Processing
Ethyca, Inc. shall process personal data as necessary to provide the Services to data exporter in accordance with the Agreement.
Processing operations
Please see Annex 1 of the DPA, which describes the processing operations.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses.
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):
Please see Annex 2 of the DPA, which describes the technical and organisational security measures implemented by Ethyca.