Data Processing Addendum
This Independent Controller Data Processing Addendum (“DPA”) is supplemental to, and forms an integral part of, your Agreement with SpyCloud, Inc. (“Company”). This DPA sets forth the legally binding terms between Company and Customer that govern the processing of Personal Data under the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement, an Order Form or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.
1. DEFINITIONS AND INTERPRETATION
For the purposes of this DPA, the following definitions apply. Capitalized terms that are used but not otherwise defined herein shall have the meanings as set forth in the Agreement.:
“Agreement” means any agreement entered into between Company and Customer governing the provision of the Services;
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the avoidance of doubt, a Controller is also, where applicable, a “data controller” (as such term is defined under European Data Protection Laws) and a “business” (as such term is defined under the CCPA);
“Company Data” means proprietary information gathered or created by Company and provided to Customer as part of the Services;
“Company Personal Data” means any Personal Data included in Company Data (as applicable), as are provided to the Customer under the Agreement and as further specified in Annex I to this Addendum;
“Data Subject” means the individual to which the Personal Data relates;
“Data Protection Laws and Regulations” means, with respect to a party, all privacy and data protection laws applicable to such party’s Processing of Personal Data including, where applicable: (i) European Data Protection Laws; (ii) the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder (as amended from time to time, the “CCPA“); and (iii) any other similar data protection laws in any other applicable territory, each as amended, replaced, supplemented or superseded;
“EEA” means the European Economic Area and any country for which the European Commission has published an adequacy decision finding that such country ensures an adequate level of protection in accordance with Article 45 of the GDPR;
“European Data Protection Laws” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”) and any other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein, Norway and the United Kingdom (“UK GDPR”), in each case, to the extent it applies to the relevant Personal Data or Processing thereof under the Agreement;
“Personal Data” means any information Processed under the Agreement that constitutes “personal data,” “personal information,” “personally identifiable information” or similar information defined under applicable Data Protection Laws and Regulations;
“Personal Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data;
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction;
“Processor” means the entity which Processes Personal Data on behalf of the Controller;
“Transfer” means the access by, transfer or delivery to, or disclosure to a person, entity or system of Personal Data where such person, entity or system is located in a country or jurisdiction other than the country or jurisdiction from which the Personal Data originated;
“UK International Data Transfer Addendum” means the UK International Data Transfer Addendum to the EU Standard Contractual Clauses (version B.1.0) issued by the UK Information Commissioner and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022 (as it is revised under its Section 18) to facilitate the international transfer of Personal Data in compliance with the UK GDPR.
“Services” means the services the parties are obligated to provide or permitted to receive pursuant to the Agreement for which each Party determines the purposes and means of the Processing of Personal Data;
“Controller to Controller Standard Contractual Clauses” or “SCCs” means the standard contractual clauses approved by the European Commission on standard contractual clauses for the transfer of Personal Data to Controllers established in third countries (excluding any optional clauses) as amended or replaced from time to time by the European Commission and available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX%3A32021D0914&locale=en.
2. ROLE AND OBLIGATIONS OF THE PARTIES
2.1 Role of the Parties. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to Data Protection Laws and Regulations. The parties acknowledge and agree that each party is a separate and independent Controller in respect of such Personal Data and shall individually determine the purposes and means of its Processing of such Personal Data. The parties further acknowledge that neither party is responsible for determining the requirements of Data Protection Laws and Regulations applicable to the other party. Both parties will comply with all requirements of the Data Protection Legislation applicable to their role as Controller, as applicable. This Addendum is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
2.2 Lawfulness of Processing. Each Party acknowledges and confirms that: (a) it will comply with applicable Data Protection Laws and Regulations and this DPA in connection with its Processing of Personal Data; (b) it will only give lawful instructions to any Processors and/or sub-Processors; (c) it will be responsible for determining the legal basis(es) of its own Processing activities; and (d) it will provide the other Party with reasonable assistance, information and cooperation as such Party may reasonably request to ensure compliance with the Parties’ respective obligations under Data Protection Laws and Regulations.
2.3 Privacy Notices. In addition to any privacy policy or notice requirements under the Agreement, each Party agrees to provide all notices and disclosures to Data Subjects required to be provided by such Party under Data Protection Laws and Regulations regarding the Processing of Personal Data contemplated under this DPA and the Agreement including, where applicable, all disclosures regarding a Data Subject’s right to opt-out of Personal Data sales (as such term is defined under the CCPA).
2.4. Data Subjects’ Rights. The parties shall reasonably assist each other in responding to any request from a Data Subject which relates to the processing of Personal Data (but shall not respond to any such request without the other’s prior written consent, unless otherwise agreed between the parties or required by the Data Protection Laws and Regulations).
2.5 Regulators. Each party agrees to: (a) promptly notify the other party in writing of any question, complaint, investigation, inquiry, warrant, subpoena or proceedings from or brought by any public, governmental, and/or judicial agency or authority (each, a “Regulatory Request”), that relates to such other party’s (i) Processing of Personal Data in relation to the Services, or (ii) potential failure to comply with Data Protection Laws and Regulations; and (b) comply with any written litigation hold, document preservation notice, or similar legal hold requested by the other party in connection with any Regulatory Request, lawsuit, or other claim, except to the extent required by applicable law.
2.6 Security. Each party shall ensure that it has in place appropriate technical and organizational measures to protect against a Personal Data Breach. A party shall make available sufficient details of these technical and organizational measures to upon receipt of a written request from the other party.
2.7 Confidentiality. The parties agree to take steps to ensure that (i) any person acting under their authority who has access to the Personal Data is subject to an appropriate confidentiality obligation and (ii) access to Personal Data is limited to those individuals who need to have access for the purposes of the Agreement and to comply with Data Protection Laws and Regulations.
3. NO OWNERSHIP OR LICENSE
Nothing in this DPA shall be construed to convey any ownership interest or license in the Personal Data that is contrary to the ownership interests and licenses set forth in the Agreement.
4. DATA TRANSFERS
4.1 Transfer Authorization. Subject to this Section 4, the parties acknowledge and agree that each party is authorized to Transfer the Personal Data Processed in connection with the Services in accordance with Data Protection Laws and Regulations. Each party shall ensure that any Transfer it initiates will, where applicable, be subject to a lawful data transfer mechanism and/or appropriate onward transfer agreements that require that any further Transfers be conducted under a lawful data transfer mechanism.
4.2 Transfers Out of the EEA. If either party Transfers Personal Data to the other Party outside of the EEA, and no lawful alternative basis for such Transfer applies, such Transfer shall be governed by the modules applicable to controller to controller transfers set forth in the SCCs, the terms of which are hereby incorporated into this DPA. The Parties agree that: (i) the SCCs shall come into effect on the later of (a) the data exporter becoming a party to them, (b) the data importer becoming a party to them, and (c) commencement of the relevant Transfer; and (ii) if in effect, the SCCs shall automatically terminate once the Transfer of Personal Data governed thereby becomes lawful under European Data Protection Laws in the absence of such SCCs on any other basis. If the SCCs cease to be recognized as a legitimate basis for Transfers out of the European Economic Area or the United Kingdom, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by European Data Protection Laws. For the purposes of Clause 17 and Clause 18(b) of the SCCs, the governing law and choice of forum shall be the Republic of Ireland.
4.3 Transfers Out of the UK. Each party agrees to comply with the provisions of the UK International Data Transfer Addendum set out in Annex II in relation to its processing of personal data subject to the UK GDPR.
4.4 Transfers Out of Switzerland. Each party agrees to comply with the provisions of the EU Standard Contractual Clauses set out in Annex I in relation to its processing of personal data subject to the Swiss FADP (“Swiss Data”). In relation to the transfer of Swiss Data, the EU Standard Contractual Clauses are amended as follows:
5. ADDITIONAL RESTRICTIONS ON COMPANY PERSONAL DATA
5.1 Customer shall notify the Company without undue delay and in any case within 48 hours upon becoming aware of a Personal Data Breach involving Company Personal Data or upon receipt of a request or complaint from a Data Subject involving Company Personal Data.
5.2 Upon termination of the Agreement, Customer shall delete or return Company Personal Data in accordance with the Agreement, unless required by Data Protection Laws and Regulations to store the Company Personal Data.
6. LIMITATION OF LIABILITY
Each party’s liability arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to any limitation of liability as set forth in the Agreement and any reference to such limitation of liability of a party means the aggregate liability of the party under the Agreement and this DPA together. Additionally, each party shall be independently liable for its own Processing of Personal Data to the extent such Processing does not comply with Data Protection Laws and Regulations.
7. APPLICABLE LAW AND JURISDICTION
This DPA is and remains governed by and shall be construed in accordance with the law designated as applicable in the Agreement.
If and to the extent that Customer holds any Personal Data in relation to a Data Subject identified in Company Personal Data but where such Personal Data is not Company Personal Data (“Additional Data”), Customer will be responsible for compliance with all applicable Data Protection Legislation in respect of such Additional Data.
ANNEX I
Part A. For the purposes of Part A of Annex I of the SCCs, the following shall apply:
Data exporter:
Name: SpyCloud, Inc.
Address: 2130 S. Congress Ave., Austin, TX 78704
Contact person (name, position, contact details): Lisa Salinas, General Counsel, privacy@spycloud.com
Activities relevant to the data transferred under these Clauses: as set forth in the Agreement
Role: Controller
Data importer:
Name: As set forth in the header of this DPA
Address: As set forth in the header of this DPA
Contact person (name, position, contact details): See Order Form
Activities relevant to the data transferred under these Clauses: as set forth in the Agreement
Role: Controller
Part B. For the purposes of Part B of Annex I of the SCCS, the following shall apply.
| Nature and Purpose of processing | Customer may process Company Data as necessary to receive the Services and comply with its obligations under the Agreement. |
| Duration of the processing | Customer may process Company Data for the duration of the Agreement, unless otherwise agreed by the parties. |
| Categories of personal data | Name, email address, contact information, localization data, and other content or data in electronic form stored or transmitted by the Company via the Services |
| Categories of data subject | Identified or identifiable natural persons |
| Sensitive data transferred | None |
| Frequency of the transfer | Continuous |
| Retention period | None post-termination, unless required by applicable law |
Part C. For the purposes of Part C of Annex I to the SCCs, the following shall apply:
Competent Supervisory Authority: 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 behaviour is monitored, are located, as indicated in Annex I.B, shall act as competent supervisory authority.
ANNEX II
International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
(Version B1.0, in force 21 March 2022)
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
Table 1: Parties
| Start date | This Addendum will take effect on the Amendment Effective Date. | |
| The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer) |
| Parties’ details | SpyCloud, Inc. (see header for further details) | Customer (see header for further details) |
| Key Contact | see Order Form | see Order Form |
Table 2: Selected SCCs, Modules and Selected Clauses
| Addendum EU SCCs | The version of the Approved EU SCCs which this Addendum is appended to is set forth in Annex I of the DPA. |
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
| Annex 1A: List of Parties: | As per Table 1 above |
| Annex 1B: Description of Transfer: | See Annex I to the DPA |
| Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: | See the Agreement |
| Annex III: List of Sub processors (Modules 2 and 3 only): | https://spycloud.com/legal/sub-processors/, as of the date the DPA is executed |
Table 4: Ending this Addendum when the Approved Addendum Changes
| Ending this Addendum when the Approved Addendum changes | Neither party may end this Addendum as set out in Section 19 |
Part 2: Mandatory Clauses
Entering into this Addendum
- Each Party agrees to be bound by the terms and conditions set out in this Addendum, in exchange for the other Party also agreeing to be bound by this Addendum.
- Although Annex 1A and Clause 7 of the Approved EU SCCs require signature by the Parties, for the purpose of making Restricted Transfers, the Parties may enter into this Addendum in any way that makes them legally binding on the Parties and allows data subjects to enforce their rights as set out in this Addendum. Entering into this Addendum will have the same effect as signing the Approved EU SCCs and any part of the Approved EU SCCs.
Interpretation of this Addendum
- Where this Addendum uses terms that are defined in the Approved EU SCCs those terms shall have the same meaning as in the Approved EU SCCs. In addition, the following terms have the following meanings:
| Addendum | This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs. |
| Addendum EU SCCs | The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information. |
| Appendix Information | As set out in Table 3. |
| Appropriate Safeguards | The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR. |
| Approved Addendum | The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18. |
| Approved EU SCCs | The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021. |
| ICO | The Information Commissioner. |
| Restricted Transfer | A transfer which is covered by Chapter V of the UK GDPR. |
| UK | The United Kingdom of Great Britain and Northern Ireland. |
| UK Data Protection Laws | All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
| UK GDPR | As defined in section 3 of the Data Protection Act 2018. |
- This Addendum must always be interpreted in a manner that is consistent with UK Data Protection Laws and so that it fulfils the Parties’ obligation to provide the Appropriate Safeguards.
- If the provisions included in the Addendum EU SCCs amend the Approved SCCs in any way which is not permitted under the Approved EU SCCs or the Approved Addendum, such amendment(s) will not be incorporated in this Addendum and the equivalent provision of the Approved EU SCCs will take their place.
- If there is any inconsistency or conflict between UK Data Protection Laws and this Addendum, UK Data Protection Laws applies.
- If the meaning of this Addendum is unclear or there is more than one meaning, the meaning which most closely aligns with UK Data Protection Laws applies.
- Any references to legislation (or specific provisions of legislation) means that legislation (or specific provision) as it may change over time. This includes where that legislation (or specific provision) has been consolidated, re-enacted and/or replaced after this Addendum has been entered into.
Hierarchy
- Although Clause 5 of the Approved EU SCCs sets out that the Approved EU SCCs prevail over all related agreements between the parties, the parties agree that, for Restricted Transfers, the hierarchy in Section 10 will prevail.
- Where there is any inconsistency or conflict between the Approved Addendum and the Addendum EU SCCs (as applicable), the Approved Addendum overrides the Addendum EU SCCs, except where (and in so far as) the inconsistent or conflicting terms of the Addendum EU SCCs provides greater protection for data subjects, in which case those terms will override the Approved Addendum.
- Where this Addendum incorporates Addendum EU SCCs which have been entered into to protect transfers subject to the General Data Protection Regulation (EU) 2016/679 then the Parties acknowledge that nothing in this Addendum impacts those Addendum EU SCCs.
Incorporation of and changes to the EU SCCs
- This Addendum incorporates the Addendum EU SCCs which are amended to the extent necessary so that:
- together they operate for data transfers made by the data exporter to the data importer, to the extent that UK Data Protection Laws apply to the data exporter’s processing when making that data transfer, and they provide Appropriate Safeguards for those data transfers;
- Sections 9 to 11 override Clause 5 (Hierarchy) of the Addendum EU SCCs; and
- this Addendum (including the Addendum EU SCCs incorporated into it) is (1) governed by the laws of England and Wales and (2) any dispute arising from it is resolved by the courts of England and Wales, in each case unless the laws and/or courts of Scotland or Northern Ireland have been expressly selected by the Parties.
- Unless the Parties have agreed alternative amendments which meet the requirements of Section 12, the provisions of Section 15 will apply.
- No amendments to the Approved EU SCCs other than to meet the requirements of Section 12 may be made.
- The following amendments to the Addendum EU SCCs (for the purpose of Section 12) are made:
- References to the “Clauses” means this Addendum, incorporating the Addendum EU SCCs;
- In Clause 2, delete the words:
“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”; - Clause 6 (Description of the transfer(s)) is replaced with:
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”; - Clause 8.7(i) of Module 1 is replaced with:
“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”; - Clause 8.8(i) of Modules 2 and 3 is replaced with:
“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;” - References to “Regulation (EU) 2016/679”, “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)” and “that Regulation” are all replaced by “UK Data Protection Laws”. References to specific Article(s) of “Regulation (EU) 2016/679” are replaced with the equivalent Article or Section of UK Data Protection Laws;
- References to Regulation (EU) 2018/1725 are removed;
- References to the “European Union”, “Union”, “EU”, “EU Member State”, “Member State” and “EU or Member State” are all replaced with the “UK”;
- The reference to “Clause 12(c)(i)” at Clause 10(b)(i) of Module one, is replaced with “Clause 11(c)(i)”;
- Clause 13(a) and Part C of Annex I are not used;
- The “competent supervisory authority” and “supervisory authority” are both replaced with the “Information Commissioner”;
- In Clause 16(e), subsection (i) is replaced with:
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”; - Clause 17 is replaced with:
“These Clauses are governed by the laws of England and Wales.”; - Clause 18 is replaced with:
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and - The footnotes to the Approved EU SCCs do not form part of the Addendum, except for footnotes 8, 9, 10 and 11.
Amendments to this Addendum
- The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
- If the Parties wish to change the format of the information included in Part 1: Tables of the Approved Addendum, they may do so by agreeing to the change in writing, provided that the change does not reduce the Appropriate Safeguards.
- From time to time, the ICO may issue a revised Approved Addendum which:
- makes reasonable and proportionate changes to the Approved Addendum, including correcting errors in the Approved Addendum; and/or
- reflects changes to UK Data Protection Laws;
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
- If the ICO issues a revised Approved Addendum under Section 18, if any Party selected in Table 4 “Ending the Addendum when the Approved Addendum changes”, will as a direct result of the changes in the Approved Addendum have a substantial, disproportionate, and demonstrable increase in:
- its direct costs of performing its obligations under the Addendum; and/or
- its risk under the Addendum,
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
- The Parties do not need the consent of any third party to make changes to this Addendum, but any changes must be made in accordance with its terms.
