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Last Update: January 13, 2020
This Data Processing Addendum (“DPA”) forms part of the Wasabi Customer Agreement or other written or electronic agreement (the “Agreement”) between Wasabi entity set forth below (“Wasabi”) and the customer specified below (“Customer”) to reflect the parties’ agreement with regard to the Processing of Personal Data.
In the course of providing Services to Customer pursuant to the Agreement, Wasabi may Process Personal Data on behalf of Customer. The parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.
By signing the Agreement, Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent Wasabi processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include Customer and Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
HOW THIS DPA APPLIES
If the Customer entity signing this DPA is a party to the Agreement, this DPA is an addendum to and forms part of the Agreement.
If the Customer entity signing this DPA has executed an Order with Wasabi pursuant to the Agreement, but is not itself a party to the Agreement, this DPA is an addendum to that Order and applicable renewal Orders.
If the Customer entity signing this DPA is neither a party to an Order nor the Agreement, this DPA is not valid and is not legally binding. Such entity should request that the Customer entity who is a party to the Agreement executes this DPA.
If the Customer entity signing the DPA is not a party to an Order nor any other agreement directly with Wasabi, but is instead a customer indirectly via an authorized reseller of the Services, this DPA is not valid and is not legally binding. Such entity should contact the authorized reseller to discuss whether any amendment to its agreement with that reseller may be required.
Except where otherwise expressly agreed by the parties in writing, this DPA shall not replace any additional rights relating to Processing of Customer Data previously negotiated by Customer in the Agreement (including any existing data processing addendum to the Agreement).
HOW TO EXECUTE THIS DPA:
This DPA consists of two parts: the main body of the DPA, and Schedule 1.
1. The Standard Contractual Clauses in Schedule 1 have been pre-signed by Wasabi.
2. To complete this DPA, Customer must:
3. Submit the completed and signed DPA to Wasabi.
4. Wasabi will sign and return the DPA to the Customer, at which time this DPA will become legally binding.
DATA PROCESSING TERMS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “
“Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the data protection laws and regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and Wasabi, but has not signed its own Order with Wasabi and is not a “Customer” as defined under the Agreement.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Customer Data” means what is defined in the Agreement as “Customer Data”.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means the 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any information (i) relating to an identified or identifiable person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations), where for each (i) or (ii), such data is Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic 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.
“Security Policies and Procedures” means the Wasabi Security Policies and Procedures, as updated from time to time, and accessible via the link in Appendix 2 to Schedule 1 (or as otherwise reasonably made available by Wasabi).
“Standard Contractual Clauses” means the agreement executed by and between Customer and Wasabi and attached hereto as Schedule 1 pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
“Sub-processor” means any Processor engaged by Wasabi.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
2. PROCESSING OF PERSONAL DATA
2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Wasabi is the Processor and processes Customer Data only on documented instructions from the Controller. Wasabi will engage Sub-processors pursuant to the requirements set forth in Section 5, “Sub-processors”, below.
2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations. For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Wasabi shall inform Customer if, in its opinion, an instruction infringes any Data Protection Laws and/or Regulations.
2.3 Wasabi Processing of Personal Data. Wasabi shall treat Personal Data as Confidential Information and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order(s); (ii) Processing initiated by users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
3. RIGHTS OF DATA SUBJECTS
3.1 Data Subject Requests. Wasabi shall, to the extent legally permitted, promptly notify Customer if Wasabi receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Wasabi shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Wasabi shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Wasabi is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Wasabi’s provision of such assistance.
4. WASABI PERSONNEL
4.1 Confidentiality. Wasabi shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities.
4.2 Reliability. Wasabi shall take commercially reasonable steps to ensure the reliability of any Wasabi personnel engaged in the Processing of Personal Data.
4.3 Limitation of Access. Wasabi shall ensure that its access to Personal Data is limited to those personnel performing Services in accordance with the Agreement.
4.4 Data Protection Officer. Wasabi has appointed a data protection officer, who may be reached at email@example.com.
5.1 Appointment of Sub-processors. Customer acknowledges and agrees that Wasabi may engage third-party Sub-processors in connection with the provision of the Services. Any such Sub-processors will be permitted to obtain Personal Data only to deliver the services Wasabi has retained them to provide, and they are prohibited from using Personal Data for any other purpose.
5.2 List of Current Sub-processors and Notification of New Sub-processors. Wasabi shall make available to Customer the current list of its Sub-processors. Such Sub-processor list shall include the identities of those Sub-processors and their country of location (“Sub-processor List”). Wasabi shall provide notification of a new Sub-processor(s) in accordance with the GDPR before authorizing any new Sub-processor(s) to Process Personal Data in connection with the provision of the applicable Services.
5.3 Objection Right for New Sub-processors. Customer may object to Wasabi’s use of a new Sub-processor by notifying Wasabi promptly in writing within ten (10) business days after receipt of Wasabi’s notice in accordance with the mechanism set out in Section 5.2. In the event Customer objects to a new Sub-processor, as permitted in the preceding sentence, Wasabi will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Wasabi is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may terminate the applicable Order(s) with respect only to those Services which cannot be provided by Wasabi without the use of the objected-to new Sub-processor by providing written notice to Wasabi. Wasabi will refund Customer any prepaid fees covering the remainder of the term of such Order(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
5.4 Liability. Wasabi shall be liable for the acts and omissions of its Sub-processors to the same extent Wasabi would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in the Agreement.
6.1 Controls for the Protection of Customer Data. Wasabi shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in Wasabi’s Security Policies and Procedures document. Wasabi regularly monitors compliance with these measures.
6.2 Certifications. Wasabi has obtained the third-party certifications and audits as described in Wasabi’s Security Policies and Procedures. Upon Customer’s written request at reasonable intervals, Wasabi shall provide a copy of its then most recent third-party audits or certifications, as applicable, or any summaries thereof, that Wasabi generally makes available to its customers at the time of such request
7. SECURITY BREACH INCIDENT MANAGEMENT AND NOTIFICATION<
7.1 Security Breach. Wasabi maintains security incident management policies and procedures and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Wasabi or its Sub-processors of which Wasabi becomes aware (a “Security Breach”). Wasabi shall make reasonable efforts to identify the cause of such Security Breach and take those steps as Wasabi deems necessary and reasonable in order to remediate the cause of such a Security Breach to the extent the remediation is within Wasabi’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users.
7.2 Unsuccessful Security Breach. Customer agrees that:
(i) An unsuccessful Security Breach attempt will not be subject to this Section. An unsuccessful Security Breach attempt is one that results in no unauthorized access to Customer’s Personal Data or to any of Wasabi’s equipment or facilities storing Customer’s Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents; and
(ii) Wasabi’s obligation to report or respond to a Security Breach under this Section is not and will not be construed as an acknowledgement by Wasabi of any fault or liability with respect to the Security Breach.
8. RETURN AND DELETION OF CUSTOMER DATA
Wasabi shall return Customer Data to Customer and/or to the extent allowed by applicable law, delete Customer Data in accordance with Wasabi’s procedures set forth in Wasabi’s Security Practice Document, applicable Data Protection Laws and/or consistent with the terms of the Agreement.
9. LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the applicable limitation of liability section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and this DPA together.
For the avoidance of doubt, Wasabi’s and its Affiliates’ total liability for all claims from the Customer and all of its Authorized Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Authorized Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Authorized Affiliate that is a contractual party to any such DPA.
10. EUROPEAN SPECIFIC PROVISIONS
10.1 GDPR. Wasabi will Process Personal Data in accordance with the GDPR requirements directly applicable to Wasabi’s provision of its Services.
10.2 Standard Contractual Clauses. The Standard Contractual Clauses in Attachment 1 and the additional terms in this Section 10 will apply to the Processing of Personal Data by Wasabi in the course of providing the Services.
i. The Standard Contractual Clauses apply only to Personal Data that is transferred from the European Economic Area (EEA) or Switzerland to outside the EEA or Switzerland, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the EU Data Protection Directive or Swiss Federal Data Protection Act, as applicable), and (ii) not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for personal data, including but not limited to Binding Corporate Rules for Processors.
ii. The Standard Contractual Clauses apply to (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates of Customer established within the European Economic Area (EEA) and Switzerland that have purchased Services on the basis of an order. For the purpose of the Standard Contractual Clauses and this Section 10, the Customer and its Affiliates shall be deemed to be “Data Exporters”.
10.3 Complete Agreement. This DPA and the Agreement are Data Exporter’s complete and final instructions to Data Importer for the Processing of Personal Data. Any additional or alternate instructions must be agreed upon separately. For the purposes of Clause 5(a) of the Standard Contractual Clauses, the following is deemed an instruction by the Data Exporter to Process Personal Data: (a) in accordance with the Agreement and applicable Order(s); and (b) to comply with other reasonable instructions provided by Customer (e.g., via a support ticket) where such instructions are consistent with the terms of the Agreement.
10.4 Sub-processor Agreements. The parties agree that the copies of the Sub-processor agreements that must be sent by the Data Importer to the Data Exporter pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or provisions unrelated to the Standard Contractual Clauses or their equivalent, removed by the Data Importer beforehand; and, that such copies will be provided by Data Importer only upon reasonable request by Data Exporter.
10.5 Data Protection Impact Assessment. Upon Customer’s request, Wasabi shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Wasabi. Wasabi shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 10.5, to the extent required under the GDPR.
10.6 Transfer Mechanisms for Data Transfers. Wasabi makes available transfer mechanisms to the extent such transfers are subject to such Data Protection Laws and Regulations. Any transfers will be made in accordance with either (1) Wasabi’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications (if any) or (2) the Standard Contractual Clauses.
10.7 Storage of Data. Customer agrees that Wasabi may, store and process Customer Personal Data in the EU and/or United States of America and any other country in which Wasabi maintains facilities. Information about the locations of Wasabi data centers can be found at https://wasabi-support.zendesk.com/hc/en-us/articles/115001684651-Where-is-my-data-stored-and-how-are-Wasabi-s-data-centers-secured-.
10.8 Audit. The parties agree that the audits described in Clause 5(f), Clause 11 and Clause 12(2) of the Standard Contractual Clauses shall be carried out in accordance with the following specifications: Upon Data Exporter’s request, and subject to the confidentiality obligations set forth in the Agreement, Data Importer shall, within a reasonable period following such request, make available to Data Exporter (or Data Exporter’s independent, third-party auditor that is not a competitor of Wasabi) information regarding Wasabi’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits it carries out as described in the Agreement and/or the Security Policies and Procedures to the extent Wasabi makes them generally available to its customers. Customer may contact Data Importer in accordance with the “Notices” Section of the Agreement to request an on-site audit of the procedures relevant to the protection of Personal Data. Customer shall reimburse Data Importer for any time expended for any such on-site audit at Wasabi’s then-current professional services rates, which shall be made available to Data Exporter upon request. Before the commencement of any such on-site audit, Data Exporter and Data Importer shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Data Exporter shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Data Importer. Data Exporter shall promptly notify Data Importer with information regarding any non-compliance discovered during the course of an audit.
10.9 Certification of Deletion. The parties agree that the certification of deletion of Personal Data that is described in Clause 12(1) shall be provided by the Data Importer to the Data Exporter only upon Data Exporter’s request
10.10 Order of Precedence. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses in Attachment 1, the Standard Contractual Clauses shall prevail, provided, however, in the event that Services are covered by more than one transfer mechanism, the transfer of Personal Data will be subject to a single transfer mechanism in accordance with the following order of precedence: (1) Wasabi’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications (if any) and (2) the Standard Contractual Clauses.
11. List of Schedules.
The following is a list of the Schedules attached to this DPA:
12. Legal Effect. This DPA shall only become legally binding between Customer and Wasabi when the formalities steps set out in the Section “HOW TO EXECUTE THIS DPA” above have been fully complete, or Customer starts using the Services whichever occurs first. If this document has been electronically signed by either party such signature will have the same legal affect as a handwritten signature.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
SCHEDULE 1 – STANDARD CONTRACTUAL CLAUSES
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 which do not ensure an adequate level of data protection.
Name of the data exporting organization:
Other information needed to identify the organization:
(the data exporter)
Name of the data importing organization: Wasabi Technologies, Inc.
Address: 111 Huntington Avenue Floor 29 Boston, MA 02199 USA
Tel.: +1-617-307-7912; fax: +1-617-307-7973; e-mail: firstname.lastname@example.org.
Other information needed to identify the organization: Not applicable
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
Obligations of the data exporter
The data exporter agrees and warrants:
Obligations of the data importer
The data importer agrees and warrants:
Mediation and jurisdiction
Cooperation with supervisory authorities
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Obligation after the termination of personal data processing services
On behalf of the data exporter:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
(stamp of organization)
On behalf of the data importer: Wasabi Technologies, Inc.
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
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.
The data exporter is (please specify briefly your activities relevant to the transfer):
Data Exporter is (i) the legal entity that has executed the Standard Contractual Clauses as a Data Exporter and, (ii) all Affiliates (as defined in the Agreement) of Customer established within the European Economic Area (EEA) and Switzerland that have purchased Services on the basis of one or more Order Form(s).
The data importer is (please specify briefly activities relevant to the transfer):
Company is a provider of cloud data storage, which processes personal data upon the instruction of the data exporter in accordance with the terms of the Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:
Categories of data
The personal data transferred concern the following categories of data (please specify):
Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the Services pursuant to the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services, as described in the Security Policies and Procedures applicable to the specific Services purchased by data exporter, and accessible https://wasabi.com/security-policy or otherwise made reasonably available by data importer. Data Importer will not materially decrease the overall security of the Services during a subscription term.
Authorized Signature: ……………………
Name: Wasabi Technologies, Inc.