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 Terms of Service (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 Terms of Service.
1. DEFINITIONS Capitalized terms used and not otherwise defined in this Agreement shall have the meanings set forth below.
1.1. “California Personal Information” means Personal Data in relation to which Customer is a Business under the CCPA.
1.2. “CCPA” means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).
1.3. “Business”, “Sell” and “Service Provider” shall have the meanings given to them in the CCPA.
1.4. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
1.5. “Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, and the CCPA; in each case as amended, repealed, consolidated or replaced from time to time.
1.6. “Data Subject” means the individual to whom Personal Data relates.
1.7. “Europe” means the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom (as the ICO UK continues to enforce under guidance from Europe) .
1.8. “European Data” means Personal Data, the Processing of which, is subject to European Data Protection Laws.
1.9. “European Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 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) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) in respect of the United Kingdom, any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union; and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.
1.10. “Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
1.11. “Permitted Affiliates” means any of Customer’s Affiliates that (i) are permitted to use the Services pursuant to the Agreement, but have not signed their own separate agreement with Ethyca and are not a “Customer” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by Ethyca, and (iii) are subject to European Data Protection Laws.
1.12. “Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.
1.13. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by Ethyca and/or its Sub-Processors in connection with the provision of the Services. “Personal Data Breach” shall not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
1.14. “Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
1.15. “Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
1.16. “Standard Contractual Clauses” means the standard contractual clauses for Processors approved pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010, in the form set out at Annex 3.
1.17. “Sub-Processor” means any Processor engaged by Ethyca or its Affiliates to assist in fulfilling Ethyca’s obligations with respect to the provision of the Services under the Agreement. Sub-Processors may include third parties or Ethyca Affiliates but shall exclude any Ethyca employee or consultant.
1.18. “Sub-Processors List” means the following list of Ethyca’s current Sub-Processors:
18.104.22.168. Amazon Web Services for hosting services; and
22.214.171.124. Intercom for customer support; and
126.96.36.199. Mailgun Technologies, Inc. for email services
2. CUSTOMER RESPONSIBILITIES
2.1. Compliance with Laws. Within the scope of the Agreement and in its use of the Services, Customer shall be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to Ethyca.
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.
2.2. Controller Instructions. The parties agree that the Agreement (including this DPA), together with Customer’s use of the Services in accordance with the Agreement, constitute Customer’s complete and final Instructions to Ethyca in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between Customer and Ethyca.
3. ETHYCA OBLIGATIONS
3.1. Compliance with Instructions. Ethyca shall only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of Customer’s lawful Instructions, except where and to the extent otherwise required by applicable law. Ethyca is not responsible for compliance with any Data Protection Laws applicable to Customer or Customer’s industry that are not generally applicable to Ethyca.
3.2. Conflict of Laws. If Ethyca becomes aware that it cannot Process Personal Data in accordance with Customer’s Instructions due to a legal requirement under any applicable law, Ethyca will (i) promptly notify Customer of that legal requirement to
the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as Customer issues new Instructions with which Ethyca is able to comply. If this provision is invoked, Ethyca will not be liable to Customer under the Agreement for any failure to perform the applicable Services until such time as Customer issues new lawful Instructions with regard to the Processing.
3.3. Security. Ethyca shall implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches, as described under Annex 2 to this DPA (“Security Measures”). Notwithstanding any provision to the contrary, Ethyca may modify or update the Security Measures at its discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.
3.4. Confidentiality. Ethyca shall ensure that any personnel whom Ethyca authorizes to Process Personal Data on its behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.
3.5. Personal Data Breaches. Ethyca will notify Customer without undue delay after it becomes aware of any Personal Data Breach and shall provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by Customer. At Customer’s request, Ethyca will promptly provide Customer with such reasonable assistance as necessary to enable Customer to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Customer is required to do so under Data Protection Laws.
3.6. Deletion or Return of Personal Data. Ethyca will delete or return all Personal Data (including copies thereof) Processed pursuant to this DPA within 90 days of the termination or expiry of the Agreement, save that this requirement shall not apply to the extent Ethyca is required or permitted by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which data Ethyca shall securely isolate and protect from any further Processing and delete in accordance with its deletion practices.
4. DATA SUBJECT REQUESTS
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.
6. DATA TRANSFERS
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.
7. ADDITIONAL PROVISIONS FOR EUROPEAN DATA
7.1. Scope of Section 7. This Section 7 (Additional Provisions for European Data) shall apply only with respect to European Data.
7.2. Roles of the Parties. When Processing European Data in accordance with Customer’s Instructions, the parties acknowledge and agree that Customer is the Controller of European Data and Ethyca is the Processor.
7.3. Instructions. If Ethyca believes that an Instruction of Customer infringes European Data Protection Laws (where applicable), it will inform Customer without delay.
7.4. Notification and Objection to New Sub-Processors. Ethyca will notify Customer of any changes to Sub-processors and will give Customer
new Sub-Processor on reasonable grounds relating to the protection of Personal Data within 30 daysof such notice. If Customer does notify Ethyca of such an objection, the parties will discuss Customer’s concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Ethyca will, at its sole discretion, either not appoint the new Sub-Processor, or permit Customer to suspend or terminate the affected Services in accordance with the termination provisions of the Agreement without liability to either party (but without prejudice to any fees incurred by Customer prior to suspension or termination).
7.5. Data Protection Impact Assessments and Consultation with Supervisory Authorities. To the extent that the required information is reasonably available to Ethyca, and Customer does not otherwise have access to the required information, Ethyca will provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with supervisory authorities or other competent data privacy authorities to the extent required by European Data Protection Laws.
7.6. Transfer Mechanisms for Data Transfers.
188.8.131.52. Ethyca shall not transfer European Data to any country or recipient not recognized as providing an adequate level of protection for Personal Data (within the meaning of European Data Protection Law), unless it first takes all such measures as are necessary to ensure the transfer is in compliance with applicable European Data Protection Laws. Such measures may include (without limitation) transferring such data to a recipient that has achieved binding corporate rules authorization in accordance with European Data Protection Law, or to a recipient that has executed appropriate standard contractual clauses adopted or approved by the European Commission.
184.108.40.206. Customer acknowledges that in connection with the performance of the Services, Ethyca, Inc. is a recipient of European Data in the United States. The parties agree that Ethyca makes available the transfer mechanisms listed below:
(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.
220.127.116.11. Demonstration of Compliance. Ethyca shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by Customer in order to assess compliance with this DPA. Customer acknowledges that the Subscription Service is hosted by Ethyca’s
data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001) and Ethyca’s systems are regularly tested by independent third party penetration testing firms. Upon request, Ethyca shall supply (on a confidential basis) a summary copy of its penetration testing report(s) to Customer so that Customer can further verify Ethyca’s compliance with this DPA. Furthermore, at Customer’s written request, Ethyca will provide written responses (on a confidential basis) to all reasonable requests for information made by Customer necessary to confirm Ethyca’s compliance with this DPA. Customer shall not exercise this audit right more than once per calendar year.
8. ADDITIONAL PROVISIONS FOR CALIFORNIA PERSONAL INFORMATION
8.1. This Section 8 (Additional Provisions for California Personal Information) shall apply only to the extent that Customer is a Business under the CCPA.
8.2. Roles of the Parties. When processing California Personal Information in accordance with Customer’s Instructions, the parties acknowledge and agree that Ethyca is a Service Provider for the purposes of the CCPA.
8.3. Responsibilities. The parties agree that Ethyca will process California Personal Information as a Service Provider strictly for the purpose of performing the Services under the Agreement (the “Business Purpose”). Ethyca shall not (a) Sell California Personal Information; or (b) retain, use, or disclose California Personal Information for any purpose other than for the Business Purpose or as otherwise permitted by the CCPA.
9. GENERAL PROVISIONS
9.1. Amendments. Notwithstanding anything else to the contrary in the Agreement, and except in relation to sections 2, 3, 4, 5, 6, 8 and 9 which, unless required by law, shall not be modified or amended except by mutual written agreement of the parties, Ethyca reserves the right to make any updates and amendments to this DPA.
9.2. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA shall not be affected.
9.3. Governing Law. This DPA shall be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
10. PARTIES TO THIS DPA
10.1. Permitted Affiliates. By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws, in the name and on behalf of its Permitted Affiliates, thereby establishing a separate DPA between Ethyca and each such Permitted Affiliate subject to the Agreement and Sections 9 and 10 of this DPA. Each Permitted Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and such Permitted Affiliates.
10.2. Authorization. The legal entity agreeing to this DPA as Customer represents that it is authorized to agree to and enter into this DPA for and on behalf of itself and, as applicable, each of its Permitted Affiliates.
10.3. Remedies. Except where applicable Data Protection Laws require a Permitted Affiliate to exercise a right or seek any remedy under this DPA against Ethyca directly by itself, the parties agree that (i) solely the Customer entity that is the contracting party to the Agreement shall be entitled to exercise any right or seek any remedy that any Permitted
Affiliate may have under this DPA on behalf of its Affiliates; (ii) that the exclusions and limitations of liability in the Agreement apply on an aggregate basis to all Claims made by the Customer Entity on behalf of Permitted Affiliates, and not separately to each such Permitted Affiliate and (iii) the Customer entity that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Permitted Affiliate individually but in a combined manner for itself and all of its Permitted Affiliates together. The Customer entity that is the contracting entity is responsible for coordinating all communication with Ethyca under the DPA and shall be entitled to make and receive any communication related to this DPA on behalf of its Permitted Affiliates.
10.4. Other rights. The parties agree that Customer shall, when reviewing Ethyca’s compliance with this DPA pursuant to Section 18.104.22.168 (Demonstration of Compliance), take all reasonable measures to limit any impact on Ethyca and its Affiliates by combining several audit requests carried out on behalf of the Customer entity that is the contracting party to the Agreement and all of its Permitted Affiliates in one single audit.
DETAILS OF PROCESSING
This Annex forms part of the DPA.
A. Nature and Purpose of Processing
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.
B. Duration of Processing
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.
C. Categories of Data Subjects
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.
D. Categories of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include but is not limited to the following categories of Personal Data:
Name, email address, telephone number, address, job titles, device ID, IP address, location data, education information, identification numbers, order information, transactional information
E. Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
F. Processing operations
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.
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.
a) Access Control
i. Preventing Unauthorized Product Access
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.
ii. Preventing Unauthorized Product Use
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.
iii. Limitations of Privilege & Authorization Requirements
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.
b) Transmission Control
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.
c) Input Control
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.
d) Availability Control
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.
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”)
Ethyca Inc., 45 West 29th Street RM501, New York, NY 10001 (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.
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.
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.
Third-party beneficiary clause
1. 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.
2. 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.
3. 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.
4. 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.
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
(ii) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
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.
1. 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.
2. 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 or 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.
3. 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.
Mediation and jurisdiction
1) 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.
2) 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.
Cooperation with supervisory authorities
1) 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.
2) 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.
3) 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).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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.
- 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 Clauses. 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.
- 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.
- 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.
- 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.
Obligation after the termination of personal data-processing services
- 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.
- 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.
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).
The data exporter is the legal entity specified as “Customer” in the DPA.
The data importer is Ethyca, Inc.
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.
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.