DPA

Datadobi CVBA

Data Processing Agreement

This Data Processing Agreement (“DPA“), by and between Licensee and Datadobi, is entered into pursuant to the Software License and Support and Maintenance Agreement for DobiMiner Suite or other software license or services agreement or statement of work by and between Licensee and Datadobi (the “Agreement“) and is intended to address legal requirements under any national law of an EU member state adopted pursuant to Regulation (EU) 2016/679 (“GDPR“). The terms “personal data,” “processing,” “processor,” “controller,” and “data subject” will have the meaning defined in the GDPR. With respect to the personal data subject to this DPA, Licensee is the controller and Datadobi is the processor. Capitalized terms not defined in this DPA have the meanings given to such terms in the Agreement.

  1. Licensee instructs Datadobi to process the personal data provided to Datadobi by and on behalf of Licensee to provide the services provided by Datadobi under the Agreement (the “Services“). For purposes of this DPA, personal data means the information, provided or made available to Datadobi by or on behalf of Licensee during the course of Datadobi’s provision of software support services, which may include the name, email address, phone number, job title, and other contact information of the data subject that submits the support request. In general, Datadobi does not wish to have or require access to any personal data being migrated or otherwise processed by the software licensed by Licensee pursuant to the Agreement (the “Software“) to provide support services. However, to the extent personal data being migrated or otherwise processed by the Software is made viewable by Licensee during the course of Datadobi’s provision of support, personal data may include migrated data that relates to an identified or identifiable natural person, including special categories of personal data as defined by the GDPR. The categories of data subjects to which personal data may relate are the data subjects who submit support requests on behalf of Licensee and, solely to the extent such data is made viewable by Licensee during the course of Datadobi’s provision of support, data subjects whose personal data is being processed by the Software.
  2. Licensee generally authorizes Datadobi to engage subprocessors to assist with or conduct the processing of personal data purposes of performing the Services. Datadobi may make changes to the subprocessors it engages from time to time in its reasonable discretion; provided, that Datadobi:

    1. provides prior notice to Licensee of such change and gives Licensee an opportunity to object to changes concerning the addition or replacement of subprocessors; provided, that (i) Licensee will not object except with reasonable cause, and that if Licensee does so object, Licensee will work in good faith with Datadobi to find an alternative subprocessor; and (ii) if Licensee does not object to such change within five (5) business days, Licensee is deemed to have accepted such subprocessor; and
    2. imposes the same data protection obligations as set out in this DPA on such subprocessor, which written contract will provide sufficient guarantees that the subprocessor will implement appropriate technical and organizational measures in such a manner that the processing by such subprocessor will meet the requirements of the GDPR.
  3. In its performance of the Services, Datadobi will, taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk.
  4. Datadobi will:

    1. process the personal data only on documented instructions from the Licensee, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by any law to which Datadobi is subject; in such a case, Datadobi will inform the Licensee of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
    2. require that persons authorized to process personal data under the Agreement have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
    3. taking into account the nature of the processing, and at Licensee’s cost, assist the Licensee by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Licensee’s obligation to respond to requests for exercising the data subject’s rights under the GDPR or applicable national data protection laws;
    4. on reasonable request, and at Licensee’s cost, assist the Licensee in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Datadobi;
    5. at the choice of the Licensee and within the period specified in the Agreement, delete or return all the personal data to the controller after the end of the provision of services relating to processing; provided, that Datadobi may retain a copy of the personal data for such period of time as is necessary for purposes of compliance with Datadobi’s regulatory obligations or applicable laws; and
    6. make available to the Licensee, upon no less than thirty (30) days prior written notice, all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by the Licensee or another auditor mandated by the Licensee; provided, that any audit and inspection: (i) may be limited in scope by Datadobi to the extent reasonably necessary to prevent the violation of Datadobi’s and its subprocessors’ confidentiality obligations related to the information of Datadobi’s and its subprocessors’ other clients; (ii) shall at all times be supervised by and performed in the presence of Datadobi security personnel and in accordance with Datadobi’s security policy and procedures; and (iii) shall only apply with respect to Datadobi’s systems and sites relevant to the processing of personal data subject to this DPA or to the extent required in writing by a competent supervisory authority with responsibility for privacy or data protection matters under the GDPR. Each auditor who is not subject to rules of professional conduct requiring confidentiality must enter into a written agreement with Datadobi protecting the confidentiality of any information gathered during the conduct of such audit. The results of such audit, as well as any documentation prepared by the auditor or Licensee as a result of the conduct of such audit, shall be shared with Datadobi and be deemed the Confidential Information of both Datadobi and Licensee. Licensee shall bear its own costs in relation to such audit and shall reimburse Datadobi for costs incurred by Datadobi in connection with such audits. The parties agree that, as a general matter, the parties will first look to independent third-party audit reports provided by Datadobi and/or Datadobi’s subprocessors to fulfill the foregoing requirements.
  5. Datadobi will immediately inform the Licensee if, in its opinion, an instruction from Licensee to Datadobi infringes the GDPR or applicable national data protection laws that apply to Datadobi in its performance of the Services.
  6. Datadobi will, without undue delay following Datadobi’s discovery of any loss or breach of security of the personal data, inform the Licensee of such loss or breach. Datadobi shall report on the nature of the breach including, to the extent known by Datadobi, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned.
  7. Licensee acknowledges and agrees that personal data originating in the European Economic Area (“EEA“) may be processed by Datadobi in the United States of America or other countries outside of the EEA. Datadobi and Licensee agree that, in the event of any transfer of such personal data from the EEA to Datadobi in any country not deemed by the European Commission to ensure an adequate level of protection will be subject to the Standard Contractual Clauses set forth as Annex A hereto and that are hereby incorporated by reference and shall be deemed to apply in respect of such processing. The Licensee guarantees that all data transfers outside the EEA take place in conformity with the rules of the GDPR and all laws applicable to the protection of personal data.
  8. Notwithstanding any provision herein to the contrary, Licensee acknowledges and agrees that Datadobi may, from time to time, be required to disclose personal data to certain regulatory authorities in order to comply with its own legal and regulatory obligations (the “Regulatory Requirements“). In such case, Datadobi shall use commercially reasonable efforts to disclose only such personal data as is necessary to comply with the Regulatory Requirements.
  9. This DPA will remain effective (and the duration of the processing will last) as long as Datadobi provides Services for Licensee or processes personal data received from Licensee or in the context of providing Services for Licensee.
  10. This DPA applies only to Datadobi’s processing of personal data subject to any national law of an European Union (EU) member state adopted pursuant to the GDPR. All obligations under this DPA apply in addition to, not in lieu of, any other contractual, statutory, and other obligations of Datadobi. In the event of a conflict between this DPA and the Agreement, this DPA will control solely with respect to Datadobi’s processing of personal data subject to this DPA.

Annex A

EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE

Directorate C: Fundamental rights and Union citizenship
Unit C.3: Data protection

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries that do not ensure an adequate level of data protection:

Datadobi (as data importer)

and

Licensee (as the data exporter)

each a “party,” together “the parties,”

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

  1. ‘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;
  2. ‘the data exporter’ means the controller who transfers the personal data;
  3. ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his or her behalf after the transfer in accordance with his or her 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;
  4. ‘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 or her instructions, the terms of the Clauses and the terms of the written subcontract;
  5. ‘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;
  6. ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure, or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1, which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  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.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. 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;
  2. 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;
  3. that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
  4. 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;
  5. that it will ensure compliance with the security measures;
  6. 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;
  7. 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;
  8. 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 that 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;
  9. 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
  10. that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

  1. 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;
  2. 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 that 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;
  3. that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
  4. that it will promptly notify the data exporter about:

    1. 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,
    2. any accidental or unauthorised access, and
    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
  5. 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;
  6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses that 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;
  7. 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;
  8. that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
  9. that the processing services by the subprocessor will be carried out in accordance with Clause 11;
  10. to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

  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 or her subprocessor of any of his or her obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.

    The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

  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.

Clause 7

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:

    1. to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
    2. 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.

Clause 8

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).

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Grand Duchy of Luxembourg.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.

Clause 11

Subprocessing

  1. 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.
  2. 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.
  3. 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, namely the Grand Duchy of Luxembourg.
  4. 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.

Clause 12

Obligation after the termination of personal data processing services

  1. 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.
  2. 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 and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

A provider of software used to migrate, replicate, and sync data across storage systems.

Data importer

A licensee and user of data exporter’s software.

Data subjects

The personal data transferred concern the categories of data subjects listed in paragraph 1 of the Data Processing Agreement to which these Standard Contractual Clauses are attached.

Categories of data

The personal data transferred categories of data listed in paragraph 1 of the Data Processing Agreement to which these Standard Contractual Clauses are attached.

Special categories of data (if appropriate)

The personal data may include special categories of personal data as described in paragraph 1 of the Data Processing Agreement to which these Standard Contractual Clauses are attached.

Processing operations

The personal data transferred will be subject to the basic processing activities specified in the Software License and Support and Maintenance Agreement for DobiMiner Suite by and between data exporter and data importer and the Data Processing Agreement to which these Standard Contractual Clauses are attached. Specifically, personal data will be processed by data importer in the context of providing software support services to data exporter.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

Taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, data importer implements appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk.