Effective September 27, 2021
This Data Processing Addendum (“DPA”) applies whenever it is incorporated by reference into the Master Services Agreement (“Agreement”) between you and Code42. Capitalized terms used but not defined in this DPA have the meanings given to them in the Agreement.
1. Purpose and scope
In the course of providing the Offerings to you under the Agreement, Code42 will Process Customer Data on your behalf. Customer Data may include Personal Data. This DPA reflects the parties’ agreement relating to the Processing of Customer Data in accordance with the requirements of Data Protection Laws. This DPA will control in the event of any conflict with the Agreement.
2.1 “CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. as amended from time to time.
2.2 “Data Controller” means the entity that determines the purposes and means of Processing of Personal Data.
2.3 “Data Processor” means the entity that Processes Personal Data on behalf of the Data Controller, including as applicable any "service provider" as that term is defined in the CCPA.
2.4 “Data Protection Laws” means any applicable data protection laws and regulations applicable to the Processing of Personal Data under the Agreement, including the applicable laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, and the United States and its states.
2.5 “Data Subject” means the individual to whom Personal Data relates.
2.6 “Personal Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with or could reasonably be linked, directly or indirectly, to an identified or identifiable individual.
2.7 “Processing”, “Processes” or “Process” means any operation or set of operations performed upon Personal Data whether or not by automated means, such as collection, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, erasure, or destruction.
2.8 “Standard Contractual Clauses” means the controller to processor standard contractual clauses for transfers of personal data to third countries which do not show an adequate level of data protection (i) as approved by the European Commission decision 2021/914, dated 4 June 2021, or (ii) for transfer transfers from the United Kingdom, as approved by the European Commission decision 2010/87/EC, dated 5 February 2010 (the “UK SCCs”).
2.9 “Sub-processor” means Code42’s Affiliates or other third-party service providers that Process Customer Data for Code42.
3. Processing of customer data
3.1 Data Processing Roles. As between you and Code42, you are the Data Controller of Customer Data and Code42 is the Data Processor. You control the categories of Data Subjects and Personal Data Processed under the Agreement and provide such Personal Data to Code42 for business purposes only. Code42 has no knowledge of, or control over, the Personal Data that you provide for Processing. You are solely responsible for the accuracy, quality, and legality of the Customer Data and the means by which you acquired the Customer Data.
3.2 Data Processing Instructions. This DPA and the Agreement are your complete and final instructions to Code42 for the Processing of Customer Data. You and Code42 must agree on any additional or alternate instructions. Code42 will inform you if, in Code42's opinion, your instructions violate Data Protection Laws. Code42 will process Customer Data in accordance with the Agreement (including all documents incorporated in the Agreement), and to comply with other reasonable instructions you provide to Code42 (including by email) where your instructions are consistent with the Agreement. Code42 will not sell Customer Data. Code 42 will not collect, retain, use, or disclose Customer Data (A) for any purpose other than for the specific purpose set forth in the Agreement, or (B) outside the direct business relationship between you and Code42. Code42 will disclose Customer Data if required to do so by applicable law, in which case Code42 will inform you in advance unless Code42 is prohibited from doing so. Code42 certifies that it understands and will comply with the restrictions in this section 3 (Processing of Customer Data).
4. Rights of data subjects
4.1 Correction, Blocking and Deletion. If you do not have the ability to amend, block, or delete Customer Data as required by Data Protections Laws, you can provide written instructions to Code42 to act on your behalf. Code42 will follow your instructions to the extent they are technically feasible and legally permissible. You will pay Code42’s costs of providing this assistance if the assistance exceeds the services provided under the Agreement.
4.2 Data Subject Requests. If permitted, Code42 will promptly notify you of any request from a Data Subject for access to, correction, amendment, or deletion of that Data Subject’s Personal Data. Code42 will not respond to any Data Subject request without your prior written consent, except to confirm that the request relates to you.
4.3 Cooperation and Assistance. Code42 will assist you to address any request, complaint, notice, or communication you receive relating to Code42’s Processing of Customer Data received from (A) a Data Subject whose Personal Data is contained within the Customer Data, or (B) any applicable data protection authority. Code42 will also assist you with your reasonable requests for information to confirm compliance with this DPA or to conduct a privacy impact assessment. You will pay Code42’s costs of providing assistance if the assistance exceeds the services provided under the Agreement.
5. Code42 personnel
5.1 Confidentiality. Code42 informs its personnel engaged in the Processing of Customer Data about the confidential nature of such Customer Data. These personnel receive appropriate training on their responsibilities and are subject to written agreements with confidentiality obligations that survive the termination of their relationship with Code42.
5.2 Limitation of Access. Code42 ensures that access to Customer Data is limited to those personnel who require access to Process Customer Data under the Agreement.
6.1 Authorization. You expressly authorize Code42 to use Sub-processors to perform specific services on Code42’s behalf to enable Code42 to perform its obligations under the Agreement. Code42 has written agreements with its Sub-processors that contain obligations substantially similar to Code42’s obligations under this DPA. Code42 is liable for any breach of this DPA caused by an act or omission of its Sub-processors.
6.2 Notice and Objection. Code42’s current Sub-processors are listed at: http://code42.com/r/support/dpa-subprocessors. Code42 will publish changes to its Sub-processors to this website. You can subscribe to receive notice of any changes to Code42’s Sub-processors by emailing firstname.lastname@example.org with the subject “Subscribe” from the email address to which you want notification sent. If you subscribe, Code42 will notify you by email of new Sub-Processors before authorizing such Sub-processor(s) to process Customer Data. You have a right to reasonably object to Code42’s use of a new Sub-processor by notifying Code42 in writing within 10 business days after Code42 publishes notice of a new Sub-processor. If you do so, Code42 will use reasonable efforts to change the affected Software or Cloud Service, or recommend a commercially reasonable change to your configuration or use of the affected Software or Cloud Service, to avoid Processing of Customer Data by the new Sub-processor. If Code42 is unable to make or recommend such a change within a reasonable period of time, not to exceed 60 days, you may terminate only the Subscription Term for the Software and Cloud Service that Code42 cannot provide without using the new Sub-processor. You must provide written notice of termination to Code42 in accordance with the Agreement. Code42 will promptly refund you the fees applicable to the unused portion of the Subscription Term for the terminated Software and Cloud Services offering.
7.1 Controls for the Protection of Customer Data. Code42 maintains appropriate administrative, technical and organizational safeguards to protect Customer Data from unauthorized or unlawful Processing, from accidental loss, destruction, or damage. Code42’s obligations are described in the Information Security Addendum available at http://www.code42.com/r/support/dpa-information-security-addendum.
7.2 Incident Management and Breach Notification. Code42 will notify you within 24 hours of becoming aware of a breach of your Customer Data. To the extent known, the notice will include (A) a description of the nature of the Personal Data breach, including the categories and approximate number of your Data Subjects concerned and the categories and approximate number of your records concerned; (B) the name and contact details of a Code42 contact point for more information; (C) the measures Code42 is taking to address the breach, including measures to mitigate its possible adverse effects. You can find more information about Code42's incident response procedures in the Information Security Addendum.
8.1 Certifications and Audits. Code42 uses external auditors to verify the adequacy of its security measures. Such audits are performed at least annually by independent third party security professionals and result in the generation of a confidential audit report (“Audit Report”). Code42’s certifications and Audit Report are described in the Information Security Addendum.
8.2 Customer Audits. Code42 will provide you a copy of the Audit Report upon request so that you can reasonably verify Code42’s compliance with its obligations under this DPA. You agree that any audit right granted under Data Protection Laws will be satisfied by Code42’s Audit Report. If the information in the Audit Report is insufficient to reasonably demonstrate Code42’s compliance with its obligations under this DPA or an audit is required by your Supervisory Authority, Code42 will provide additional information and will allow and contribute to audits, including on-site inspections. This right does not apply to the CrashPlan for Small Business Offering. Any such audit will be mutually agreed upon in scope, timing and duration and occur no more than once annually. You will provide written notice to Code42 to request an on-site audit of the procedures relevant to Code42’s Processing of Customer Data. The audit must be conducted during normal business hours and cannot unreasonably interfere with Code42’s day-to-day operations. You will conduct the audit at your own expense and reimburse Code42 for time spent on an on-site audit at Code42’s then current rates.
9. Return and deletion of customer data
Upon termination or expiration of your Subscription Term, or at any time upon your request, Code42 will delete your Customer Data in accordance with the Agreement and the Documentation. Code42 will provide a certificate of deletion upon request. The Software and Cloud Services allow you to retrieve Customer Data at any time prior to the end of a Subscription Term. Providing this functionality through the Software and Cloud Services during the Subscription Term satisfies any obligation of Code42 to return Customer Data.
10. Transfer mechanism
To the extent Code42’s processing of Customer Data requires the transfer of Personal Data from the European Economic Area, Switzerland and/or the United Kingdom to a third country that does not ensure an adequate level of protection under Data Protection Laws, such transfers will be governed by the Standard Contractual Clauses, which the parties hereby enter into and incorporate into this DPA. The parties agree that Annex I and II of the Standard Contractual Clauses attached hereto in Schedule 1 serve as Appendix 1 and 2 of the UK SCCs.
Standard Contractual Clauses
Controller to Processor
Clause 1: Purpose and scope
a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2: Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3: Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4: Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5: Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6: Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional: Docking clause
Section II - Obligations of the Parties
Clause 8: Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a)
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offenses (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defense of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with inquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9: Use of sub-processors
(a) GENERAL WRITTEN AUTHORIZATION The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 15 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfills its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfill its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10: Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorized to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11: Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorized to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12: Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13: Supervision
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behavior is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to inquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
Section III - Local laws and obligations in case of access by public authorities
Clause 14: Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfill its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15: Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimization
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
Section IV - Final provisions
Clause 16: Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17: Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Germany.
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Germany.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
Annex I to the Standard Contractual Clauses
A. List of Parties
Name: The data exporter is the customer that is party to the Agreement with Code42 Software, Inc.
Address: The address associate with data exporter’s Code42 account or as otherwise specified in the DPA or Agreement.
Contact details: The contact details associated with the data exporter’s account, or as otherwise specified in the DPA or Agreement.
Activities relevant to the data transferred under the clauses: The activities specified in Section 3 of the DPA
Role (controller/processor): Controller
Signature and date: The data exporter is deemed to have to have signed this Annex I by signing the Agreement or the Addendum or by using the Services.
Name: The data importer is Code42 Software, Inc., a global provider of data security and endpoint data storage services.
Address: 100 Washington Avenue S, Suite 2000, Minneapolis, MN 55401, United States.
Contact details: General Counsel; email@example.com.
Activities relevant to the data transferred under the clauses: The activities specified in Section 3 of the DPA.
Role (controller/processor): Processor
Signature and date: By signing the Agreement or the DPA, or by transferring Customer Data to third countries, the data exporter will be deemed to have signed this Annex I.
B. Description of the transfer
Categories of Data subjects
The categories of data subjects whose personal data may be processed inlcude: data exporter’s employees, consultants, contractors, agents, prospects, customers, vendors, business partners and users authorized to use the Services; employees or contacts of third parties data exporter conducts business with.
Categories of personal data transferred
The personal data transferred may include the following categories of data: first and last name, employer, professional title, contact information (email, phone number, physical address), username, identification data (IP address, device ID) and any other personal data provided through the services; depending on the data exporter’s endpoint environment and naming conventions, data transferred may include personal data, such as that possibly found in a computer name, user name or file name.
Sensitive data transferred (if appropriate)
The personal data transferred may include sensitive personal data, the extent of which is determined and controlled solely by the data exporter, and which may include: racial or ethnic origin; political opinions, religious or philosophical beliefs; trade-union membership; genetic or biometric data; health data; and data concerning sex-life or sexual orientation.
Frequency of the transfer (e.g.) whether the data is transferred on a one-off or continuous basis)
Personal data is transferred in accordance with the data importer’s instructions as described in Section 3 of the DPA.
Nature of the Processing
The personal data will be processed for purposes of providing the services as described in the Agreement.The personal data transferred may be subject to the following basic processing activities: cloud based storage, retrieval, erasure or destruction, disclosure by transmission, analysis and any other processing necessary to provide and improve the services pursuant to the Agreement; to provide technical support; and otherwise in accordance with the data exporter’s instructions or to comply with law.
Purpose(s) of the data transfer and further processing
To provide the Services under the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
The duration of processing will be as specified and in accordance with the published data retention policies under the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The personal data transferred may be disclosed to sub-processors of data importer solely as permitted by data importer to provide the services to data exporter under the Agreement, a current list of which is available at: http://code42.com/r/support/dpa-subprocessors
C. Competent supervisory authority
The data exporter’s competent supervisory authority will be determined in accordance with the General Data Protection Regulation.
A description of the technical and organizational security measures implemented by the data importer to nesure the security of Customer Data. Any capitalized term not otherwise defined herein shall have the meaning given in the Agreement.
1. Information Security Program
Code42 maintains a written security program appropriate to the nature, size and complexity of Code42’s business operations. The program complies with industry recognized information security frameworks, and includes administrative, technical and physical safeguards reasonably designed to protect the confidentiality, integrity and availability of Customer Data. The Code42 Chief Information Security Officer and security governance group continually review and update the security program policies, standards and operating procedures to ensure it retains relevancy and accuracy.
2. System and Network Security
a. Networks are logically segmented by Virtual Local Area Networks (VLANs) and firewalls monitor traffic to restrict access to authorized users, systems and services.
b. Firewall changes follow established processes and must be reviewed and approved.
c. Personnel access to Code42 systems and networks is based on job responsibility. Access is promptly disabled when no longer required.
d. Network perimeter defense solutions including an Intrusion Detection System (IDS) and firewalls are in place to monitor, detect, and prevent malicious network activity. Security personnel monitor items detected and take action as appropriate.
3. Server and Endpoint Security
a. An endpoint management solution tool is used to deploy end user devices and monitor software installed on endpoints.
b. Technology on Code42 workstations monitor for virus and malware infections. Endpoint devices are scanned in real-time. Virus definition updates are pushed to endpoint devices automatically.
c. Cloud servers are built using industry standard security configuration management tools to set and enforce server security configurations based on industry leading practices. Servers check in hourly for configuration updates.
d. Virtual servers are configured using a solution and adhere to the Code42 server security configuration requirements. Access to the solution is restricted to authorized individuals. Creation, modification, and removal of virtual servers requires appropriate authorizations.
4. User Access Controls
a. Code42 personnel are required to identify and authenticate to the network with their unique user ID and password. Access to the Code42 network is secured through VPN with two-factor authentication. Password requirements are defined and enforced via a password tool.
b. Access to cloud systems is restricted to authorized individuals. Baseline password requirements for these systems are that passwords must:
i. Be at least 14 characters in length
ii. Complexity rule – contain 3 of the 4 (uppercase, lowercase, numbers, non-alphabetic characters)
iii. Expire every 60 days
c. Code42 enforces the rule of least privilege by requiring application, database, network and system administrators to restrict user access to only that needed to perform authorized functions. Successful and unsuccessful login attempts are logged.
d. Code42 performs audits of administrator access to confidential and restricted systems, including the cloud production environment, on a regular basis. Any access by personnel who no longer require access based on job role is removed promptly.
e. Customers are required to enter a unique account user ID and a password to access the Code42 System. The Code42 system includes additional security configuration settings within the application, including MFA for administrator console access and integration with customer-specified authentication solutions.
5. Physical Security
Access to data centers is granted by job responsibilities and is removed or changed as part of the separation and internal job transfer processes. Code42 evaluates the physical security controls and assurance reports of data centers at least annually. The impact of any issues identified is assessed and remediated by the security team.
6. Storage and Transmission Security
a. Industry-standard encryption technologies are used for data contained within, accessed by, or transmitted through the Code42 system. Customer data is encrypted using AES 256-bit encryption.
b. Encryption keys are stored and transferred securely during the sign-in process using industry standard encryption technology.
c. Customer file data transmitted to Code42 is MD5 check-summed at multiple points after encryption at the source to provide destinations the ability to detect tampering or corruption.
d. Code42 has implemented a secure web-based data transfer tool used to encrypt and send data between customers and Code42 during customer support.
7. Monitoring and Logging
a. Code42 monitors server, storage, and network devices on a real-time basis for operational performance, capacity, and availability metrics. System dashboards are configured to alert when pre-defined thresholds are exceeded.
b. Incident management and escalation procedures exist to address system issues, problems and security-related events, in a timely manner. Incidents are logged, prioritized, and resolved based on established criteria and severity levels.
c. Code42 utilizes a security information event monitoring (SIEM) system to pull real-time security log information from servers, firewalls, routers, intrusion detection system devices, end users, and administrator activity. The SIEM is configured for alerts and monitored on an ongoing basis. Logs contain details on the date, time, source, and type of events and are reviewed by the security team.
8. Software and Application Security
a. Code42 has established a Software Development Life Cycle (SDLC) process to govern the acquisition, development, implementation, configuration, maintenance, modification, and management of infrastructure and software components.
b. Code42 utilizes a code versioning control system to maintain the integrity and security of the application source code.
c. Product releases undergo various levels of review and testing based on change type, including security and code reviews, regression, and user acceptance testing prior to approval for deployment.
d. Monthly internal and external vulnerability scans are conducted using industry-recognized vulnerability scanning tools. Identified vulnerabilities are evaluated and remediated to address the associated risk(s).
e. External application penetration tests are conducted by an independent third party at least annually. Critical findings from these tests are evaluated, documented and remediated.
9. Instructions to Personnel
a. All personnel sign a confidentiality agreement as part of their employment contract.
b. All personnel are required to complete security training upon hire and on an annual basis. Security training includes, at a minimum:
i. Security education and communications.
ii. General and role-specific security training.
iii. Ongoing phishing tests.
iv. Instructions on how to report security incidents.
v. Responsibilities regarding data privacy and security.
c. Upon hire and annually thereafter, all personnel must review and acknowledge the security program policies, standards, and operating procedures related to security, availability, processing integrity and confidentiality.
10. Ensuring Availability
a. To meet customer availability commitments, future processing demand is forecasted, compared to projected capacity demand and reviewed weekly and evaluated by the Cloud Operations department for corrective actions, if needed.
b. Weekly maintenance windows exist for both system maintenance (Code42 cloud infrastructure) and release maintenance (new features, enhancements, and fixed to Code42 products). Details for scheduled maintenance and any disruption of service are posted on the Code42 status page.
c. A customer critical response meeting is conducted daily to monitor and review any critical or system performance issues that may impact customers.
d. Code42 maintains a business continuity plan and a disaster recovery plan to manage significant disruptions to Code42 operations and infrastructure. The plans are updated as needed, but at least annually, and approved by the Chief Information Security Officer.
11. Certifications and Assessments
Code42 conducts third party audits to attest to various frameworks including ISO 27001, SOC2 Type 2, and application penetration testing.
12. Data Storage and Erasure
Customer data collected by Incydr Professional or Enterprise is retained for a period of 90 days, unless the customer uses functionality in the product to retain certain data for a longer period of time. For CrashPlan and Incdyr Basic or Advanced, file activity data is retained for 90 days, and customer files are retained for the duration that Code42 provides the Services. All customer data is permanently deleted within 90 days of termination in accordance with industry recognized standards for data destruction.
13. Sub-processor Compliance
Code42 has an established process to assess and manage third party sub-processors. All sub-processors are contractually obligated to comply with the security requirements established in this Annex, or in any event, requirements that are substantially similar or equivalent. The security team performs a security review of sub-processors during an onboarding process and at least annually thereafter.