COFENSE INC.

DATA PROCESSING ADDENDUM

This DATA PROCESSING ADDENDUM (“DPA”) constitutes an integral part of all agreements between Customer (as defined in the Agreement) and Cofense Inc. (“Cofense”) and reflects the Parties’ agreement with respect to the processing of Personal Data by Cofense under the Agreement.

In providing the Services and Software to Customer pursuant to the Agreement, Cofense may process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith. This DPA supplements the Agreement and in the event of any conflict between the terms of this DPA and the terms of the Agreement, the terms of this DPA prevail with regard to the specific subject matter of this DPA. This DPA is effective on the date that the Agreement has been duly accepted by Customer (“Effective Date”), and amends, supersedes and replaces any prior agreement relating Personal Data processing and/or data protection entered into by the Parties related to the Business Purpose. 

1. DEFINITIONS AND INTERPRETATION

Any capitalized terms used but not defined in this DPA has the meaning provided to it in the Agreement. The following definitions and rules of interpretation apply in this DPA.

1. Definitions

“Affiliate”: an entity that directly or indirectly controls, is controlled by or is under common control with an entity, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding (but only if the entity meets these requirements).

“Business Purpose”: the provision of the Services and Software, as further described in the Agreement, to Customer.

“Data Subject”, “Personal Data”, “Personal Data Breach”, “Restricted Transfer”, “processing”: all shall have the meanings provided to them under Data Protection Laws. For the purposes of this DPA, Personal Data shall mean the Personal Data controlled by Customer and processed by Cofense on Customer’s behalf to provide Customer with the Services and Software.

 “Data Protection Law(s)”: any data protection law and legislation relating to Personal Data processed hereunder, and all other regulatory requirements in force from time to time which apply to the processing of Personal Data hereunder (including, without limitation, the privacy of electronic communications), and this shall include without limitation the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and all applicable Member State laws, rules, regulations and regulatory guidance supplementing the GDPR, and the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and all applicable UK laws, rules, regulations and regulatory guidance supplementing the UK GDPR (“UK Data Protection Law”), the DIFC Data Protection Law No. 5 of 2020 (“DIFC Law”), the QFC Data Protection Regulations 2021 (“QFC Law”), the Kingdom of Saudi Arabia’s (“KSA”) Personal Data Protection Law, 2023 (“PDPL”) and all applicable Swiss Privacy Laws (as defined in Section 3 of Exhibit 1 of the DTA attached hereto), in each case as amended and superseded from time to time.

“SCCs”:  mean collectively, the a) European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union/ European Economic Area to processors established in third countries, as set out in the Commission Implementing Decision (EU) 2021/914 of 4 June 2021, a completed copy of which is set out in the DTA, b) UK Addendum (defined in the DTA), c) the DIFC Standard Contractual Clauses pursuant to Article 27(2) of Data Protection Law DIFC Law No 5 of 2020 (“DIFC SCCs”), d) the QFC Standard Contractual Clauses pursuant to the QFC Data Protection Regulations 2021(“QFC SCCs”), e) the Standard Contractual Clauses for Personal Data Transfer issued by the Saudi Data & AI Authority pursuant to the PDPL(“KSA SCCs”), all as may be amended or superseded from time to time, and f) Swiss Addendum (defined in the DTA).

1. Interpretation

This DPA is subject to the terms of the Agreement and is incorporated into the Agreement. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this DPA, except as set forth otherwise hereunder. 

The following document is attached to and incorporated into this DPA: 

The Data Transfer Addendum (“DTA”) attached hereto, including its Exhibit 1.

The addenda, exhibits and annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the addenda, exhibits and annexes attached hereto.

In the case of conflict or ambiguity between:

(a) any provision contained in the body of this DPA and any provision contained in the DTA, the provision in the DTA will prevail; and

(b) any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA will prevail.

2. PROCESSING PURPOSES AND PERSONAL DATA DETAILS

2.1

The Customer and Cofense acknowledge that for the purposes of the applicable Data Protection Laws, the Customer is the controller, and Cofense is the processor, of the Customer Personal Data being processed by Cofense for the provision of the Services and Software under the Agreement.

2.2

The Customer retains control of the Personal Data and remains responsible for its own compliance obligations under the applicable Data Protection Laws, including providing any required notices and obtaining any required consents, and for the processing instructions it issues to Cofense.

2.3

Annex I under Section 1 of Exhibit 1 of the DTA describes the subject matter, duration, nature and purpose of processing, the Personal Data categories, and Data Subject types in respect of which Cofense may process to fulfil the Business Purpose of the Agreement.

3. CUSTOMER OBLIGATIONS

Customer will ensure that: (i) Customer is entitled to transfer the Personal Data to Cofense so that Cofense may lawfully use, process and transfer the Personal Data on Customer’s behalf and in accordance with the Agreement and this DPA; and (ii) the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by Data Protection Laws.

4. COFENSE OBLIGATIONS

4.1 

Cofense will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purpose and in accordance with Data Protection Laws, this DPA, the Agreement, and the Customer's reasonable, lawful written instructions issued to Cofense. Cofense must promptly notify the Customer if, in its opinion, a Customer’s instruction does not comply with Data Protection Laws.

4.2

Cofense must promptly comply with any reasonable and lawful Customer written request or instruction it receives requiring Cofense to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

4.3

Cofense will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties unless the Customer, Data Protection Laws, the Agreement, or this DPA authorizes the disclosure of the same, or as required by applicable law. If an applicable law, court, regulator, or supervisory authority requires Cofense to disclose Personal Data, Cofense must first inform the Customer of the legal or regulatory requirement and take reasonable steps to give the Customer an opportunity to object or challenge the requirement, unless the applicable law prohibits such provision of notice.

4.4 

Cofense will reasonably assist the Customer with meeting its own compliance obligations under the Data Protection Laws, taking into account the nature of Cofense's processing of the Personal Data and the information available to Cofense, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under Data Protection Laws.

5.COFENSE EMPLOYEES

Cofense will take measures designed to ensure that Cofense’s, and its Affiliates’, employees processing Personal Data:

(a) are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data; and

(b) have undertaken training related to the handling of Personal Data, as required by this DPA and Data Protection Laws.

6. SECURITY

Cofense must at all times implement and maintain appropriate technical and organisational measures designed to safeguard against unauthorised or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data. These measures are set out in Annex II under Section 1 of the DTA Exhibit 1. 

7. PERSONAL DATA BREACH

7.1

Where Cofense becomes aware of a Personal Data Breach, it shall, without undue delay provide notice to Customer and, to the extent such information is available to Cofense, shall also provide the Customer with the following information:

(a) description of the nature of the Personal Data Breach, including the categories and approximate number of both Data Subjects and Personal Data records concerned;

(b) the likely consequences of the Personal Data Breach; and

(c) a description of the measures taken or proposed to be taken to address the Personal Data Breach, including measures to mitigate its possible adverse effects.

7.2

Following any Personal Data Breach that Cofense becomes aware of, the Parties will co-ordinate with each other to investigate the matter in good faith. Cofense will reasonably co-operate with the Customer in the Customer's handling of the matter, where applicable.

7.3

Cofense will not inform another party of any Personal Data Breach related to Customer Personal Data without first obtaining the Customer's prior written consent, except where required to inform such other party by applicable law.

8. CROSS-BORDER TRANSFERS OF PERSONAL DATA

Cofense may transfer and process the Personal Data outside of the EU/ EEA, UK and Switzerland, and other locations from which the Personal Data originates from, between its own organisation/ Affiliates, and/or to its Sub Processors (defined below) subject to the conditions set out in this DPA, including the DTA, and always in compliance with Data Protection Law.

9. SUB PROCESSORS

9.1

Cofense is hereby granted a general authorisation by Customer to subcontract the processing of Personal Data to third parties (“Sub Processor(s)), subject to the conditions set forth hereunder. Cofense remains fully liable to the Customer for the Sub Processor's performance with regard to the processing of Customer’s Personal Data.

9.2 

Cofense may only authorise a non-affiliated third party to process the Personal Data on its behalf: a) if necessary to fulfil the Business Purpose, and b) if Cofense enters into a written contract with the Sub Processor that contains applicable data protection terms substantially the same as those set out in this DPA before allowing such third party to process Personal Data, including any required SCCs, as applicable. 

9.3

The current Sub Processors engaged by Cofense are set out in the Cofense Resource Center accessible via the Services and Software. Customer will be provided with written notice at least thirty (30) calendar days prior to any new Sub Processor engagement takes place. Such notice shall take place within Cofense Resource Center accessible via the Services and Software.

9.4

For the avoidance of any doubt, Cofense also engages, and shall continue to engage, its Affiliates for the purposes of processing the Personal Data on its behalf as necessary to fulfil the Business Purpose under the Agreement. Customer hereby agrees and acknowledges the conditions set out under Section 9.2 above apply to third party Sub Processors only and not Cofense Affiliates who process Personal Data on Cofense’s behalf.

10. DATA SUBJECT REQUESTS 

10.1

Cofense shall take such technical and organisational measures as may be appropriate, and promptly provide necessary information to the Customer as the Customer may reasonably require, to enable the Customer to comply with:

(a) the rights of Data Subjects under Data Protection Laws; and

(b) information or assessment notices served on the Customer by any supervisory authority under Data Protection Laws.

10.2

If Cofense receives a Data Subject request or complaint directly, it will ask such Data Subject to send the request directly to the Customer. 

10.3

Cofense will give the Customer reasonable co-operation and assistance in responding to any Data Subject complaint, notice, communication, or request.

11. CALIFORNIA CONSUMER PRIVACY ACT

Cofense will not sell, process, retain, disclose, or use (i) for a commercial purpose or (ii) outside of the direct business relationship between Cofense and Customer, any Customer Data that, under the California Consumer Privacy Act (“CCPA”) constitutes “personal information” (“CA Personal Information”), except to provide the Services and Software under the Agreement or as permitted by the CCPA. Notwithstanding anything in the Agreement, this DPA, any Order or Statement of Work by and between the Parties, the Parties acknowledge and agree that Cofense’s access to CA Personal Information or any other Customer Data under the Agreement does not constitute part of the consideration exchanged by the Parties in respect of the Agreement.

12. TERM AND TERMINATION

This DPA will remain in full force and effect so long as:

(a) the Agreement and/or provision of Services and Software remain in effect; or

(b) Cofense retains any Personal Data related to the Agreement in its possession or control.

13. DATA RETURN AND DESTRUCTION

13.1

Sixty (60) calendar days after the expiration or termination of the Agreement, and/or the Services and Software for any reason, Cofense will securely delete or destroy, and not retain, the Personal Data related to this DPA in its possession or control, except for one copy that it may retain and use for audit or data backup purposes or where applicable law requires Cofense to retain the same, provided, however, that all applicable obligations contained herein shall, with respect to any Personal Data so retained, survive any termination of this DPA.

13.2

Subject to Section 13.1 above, upon Customer’s written request, Cofense will certify in writing that it has destroyed the Personal Data after it completes the deletion/destruction.

14. AUDITs

Cofense will permit the Customer and its third-party representatives, subject to the same being bound by confidentiality obligations no less stringent than the ones set out in the Agreement and Customer has provided sufficient proof of the same, to audit Cofense's applicable records necessary to show compliance with its obligations hereunder, subject always to the auditing provision(s)/ condition(s) set out the Agreement. The Customer will treat such audit information/reports etc. as Cofense’ s confidential information under the Agreement.

15. INDEMNIFICATIONAND LIMITATION OF LIABILITY

Cofense agrees to indemnify and defend, at its own expense, the Customer against claims, damages, or reasonable costs and expenses incurred by the Customer due to a failure by Cofense, its Affiliates or Sub Processors to comply with any of its obligations under this DPA. 

The limitation of liability set forth in the Agreement will apply to this DPA.

Cofense and its Affiliates’ total liability for all claims from the Customer and all of its 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 this Agreement, including by Customer and all Customer Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Customer Affiliate that is a contractual party to any such DPA.

16. MISCELLANEOUS

16.1        

This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

16.2  

This DPA may not be amended or modified except by the mutual agreement of the Parties; provided, however, Customer will be notified at least thirty (30) calendar days in advance of any amendments or modifications to this DPA, which shall take effect in the next applicable Software and Services cycle, and Customer’s continued use of the Services and Software shall constitute acceptance of such amendments and/or modifications. The terms and conditions of this DPA are confidential and each Party agrees and represents, on behalf of itself and its Affiliates, its employees, officers, directors, contractors and agents, and those of their Affiliates, to whom it is permitted to disclose such information that it will not disclose such information to any third party; provided, however, that each Party shall have the right to disclose such information to its officers, directors, employees, auditors, attorneys and third party contractors who are under an obligation to maintain the confidentiality thereof and further may disclose such information as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction or as reasonably necessary to comply with any applicable law or regulation. Customer may not, directly or indirectly, by operation of law or otherwise, assign all or any part of its rights under this DPA or delegate performance of its duties under this DPA without Cofense’s prior written consent, which consent will not be unreasonably withheld. Cofense may, without Customer’s consent, assign this DPA to any Cofense Affiliate or in connection with any merger or change of control of Cofense or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to this DPA. Subject to the foregoing restrictions, this DPA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

16.3

Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Law, in the name and on behalf of its Affiliates, if and to the extent Cofense processes Personal Data for which such Affiliates qualify as the data controller.

DATA TRANSFER ADDENDUM

This DATA TRANSFER ADDENDUM (“DTA”) is entered into as of the Effective Date above by and between the Parties and shall apply to the Parties in addition to the DPA. 

WHEREAS, the European Commission has published the EU SCCs for the transfer of Personal Data from the EU to third countries. The EU SCCs repeal the Old EU SCCs and aim to address the requirements of the GDPR and the decision of the European Court of Justice in Schrems II;

WHEREAS, the implementing decision on which the EU SCCs are based entered into force on 27 June 2021 and use of the Old EU SCCs ceased on 27 December 2022;  

WHEREAS, the UK Information Commissioner’s Office (“ICO”) published new UK international data transfer contractual documentation which was approved by the UK Parliament for use on 21 March 2022 and use of earlier versions of UK international data transfer contracts must cease by 21 March 2024;

WHEREAS, the Federal Data Protection and Information Commissioner (“FDPIC”) issued guidance on 27 August 2021 in relation to international transfers of personal data originating from Switzerland or in any case subject to Swiss Privacy Laws; 

WHEREAS, the Parties wish to reflect their agreement with respect to the processing of Personal Data in accordance with applicable data protection laws and regulations in the Middle East, specifically the DIFC Law, QFC Law, and PDPL; and

WHEREAS, the purpose of this DTA is to:

1. put in place the EU SCCs between Cofense and Customer; 
2. put in place the UK Addendum and Swiss Addendum between Cofense and Customer;
3. put in place the DIFC SCCs between Cofense and Customer;
4. put in place the QFC SCCs between Cofense and Customer;
5. put in place the KSA SCCs between Cofense and Customer; and
6. if Cofense is a UK, Swiss or EU-based processor, address the requirements of Article 28 of the GDPR and UK GDPR and Swiss Privacy Laws.

NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:

1. DEFINITIONS AND INTERPRETATION
   1. The following definitions shall apply: 

“EU SCCs” means the new EU standard contractual clauses as approved by the European Commission by its Implementing Decision (EU) 2021/914 of 04 June 2021 for the transfer of Personal Data in the EU to third countries, as amended or updated from time to time, attached to this DTA under Section 1 of Exhibit 1.

“Old EU SCCs” means the forms of the EU standard contractual clauses which ceased to be authorized for use for new restricted transfers from 27 September 2021 under Implementing Decision (EU) 2021/914 of 04 June 2021.

“Swiss Addendum” means the Swiss modification to the EU SCCs Module 2, as attached hereto under Section 3 of Exhibit 1.

“UK Addendum” means the UK International Data Transfer Addendum to the EU SCCs which is attached hereto under Section 2 of Exhibit 1.

1.2    The following documents are attached to and incorporated into this DTA:

1. Exhibit 1 – Section 1: The EU SCCs; Section 2: Information required to complete the UK Addendum to the EU SCCs which shall be deemed to have been incorporated into the UK Addendum which is deemed to have been entered into between the Parties under Section 2.2; Section 3: The Swiss Addendum.

2. TRANSFER MEASURES
   2. With effect from the Effective Date, the EU SCCs, the Swiss Addendum and UK Addendum shall take effect as between the Parties in accordance with the below:
   3. Where Customer transfers (including by granting access to) Personal Data to Cofense (or Cofense otherwise processes Personal Data in its provision of the Services and Software to Customer under the Agreement), and Cofense (or any Sub Processor) is located in a third country which does not provide an adequate level of protection in compliance with Data Protection Laws, the Parties hereby agree that: 
      2. if Cofense is located outside the EEA, Switzerland, or the UK:

2. the EU SCCs, the Swiss Addendum and the UK Addendum are incorporated by reference into this DTA and shall be deemed to apply as between the Parties (under which Cofense is a data importer and Customer is the data exporter) in the context of transfers of Personal Data from the EEA and/or the UK (with transfers of Personal Data to which the UK GDPR applies being subject to Section 2 of Exhibit 1) and/or Switzerland (with transfers of Personal Data to which Swiss Privacy Laws apply being subject to Section 3 of Exhibit 1) to Cofense, and if Cofense further transfers (including by granting access to) Personal data to a third party Sub Processor outside the UK, Switzerland or EEA, Cofense shall procure the Sub Processors to enter into the same elements/documents with Cofense as set out in Section 2.2.2.1 below prior to such further transfers taking place; and

2. the details of the transfer as required by the EU SCCs, Swiss Addendum and the UK Addendum are set out in Exhibit 1 to this DTA and shall hereby be incorporated into the EU SCCs, Swiss Addendum and the UK Addendum (save that Section 1 of Exhibit 1 shall not apply to transfers of Personal Data to which the UK GDPR applies or Swiss Privacy Laws, except to the extent incorporated under Section 2 of Exhibit 1 or Section 3 of Exhibit 1).

2. if Cofense is located within the EEA, Switzerland, or UK, but transfers (including by granting access to) Personal Data to a third party Sub Processor outside the UK, Switzerland or EEA and into a third country which does not provide an adequate level of protection in compliance with Data Protection Laws, Cofense shall procure that:

2. those third party Sub Processors enter into the EU SCCs under Module 3, the Swiss Addendum and the UK Addendum with Cofense prior to the transfer taking place; and

2. the details of the transfers under the EU SCCs, the Swiss Addendum and UK Addendum entered into under 2.2.1.1 shall be populated to reflect the factual scenario of such further transfers, taking into account Exhibit 1 of this DTA. 

2. Cofense shall (and shall ensure that its Affiliates and third party Sub Processors shall), when acting as a data importer under the EU SCCs, the Swiss Addendum, or the UK Addendum, take all reasonable steps as required by Data Protection Law to comply with Data Protection Law and the data importer obligations set out under those Clauses.
3. Where applicable, the relevant Cofense Affiliates (which includes subsidiaries and registered branches) shall be deemed to have entered into the EU SCCs, the Swiss Addendum and the UK Addendum with the Customer by Cofense Inc. signing this DTA at Section 1 of Exhibit 1, and shall also be deemed to have entered into those set out in Section 2.2 above.  

3. ARTICLE 28 REQUIREMENTS

If Cofense is a processor located in the UK, Switzerland or the EEA, the Parties agree that the provisions of Clauses 1, 8, 9 and 15 of the EU SCCs Module 2 (Transfer Controller to Processor) (as applicable and amended as necessary) shall apply to any and all processing of Personal Data under this DPA and Agreement (amended as necessary to relate to that processing) for the purposes of addressing the requirements of Article 28 of the GDPR and UK GDPR and Swiss Privacy Laws.

4. MIDDLE EAST TRANSFER MEASURES
   4. Where the Restricted Transfer concerns Customer Personal Data originating from the Dubai International Financial Centre (“DIFC”), such Restricted Transfers will be governed by the DIFC SCCs, which will be incorporated into this DTA by reference and shall apply to the extent required under applicable laws and where this DTA does not provide adequate safeguards. 
   5. Where the Restricted Transfer concerns Customer Personal Data originating from the Qatar Financial Centre (“QFC”), such Restricted Transfers will be governed by the QFC SCCs, which will be incorporated into this DTA by reference and shall apply to the extent required under applicable laws and where this DTA does not provide adequate safeguards.
   6. Where the Restricted Transfer concerns Customer Personal Data originating from the KSA, such Restricted Transfers will be governed by the KSA SCCs, which will be incorporated into this DTA by reference and shall apply to the extent required under applicable laws and where this DTA does not provide adequate safeguards.
   7. For the purposes of the appendices to the DIFC SCCs, QFC SCCs and KSA SCCs, the information set out in the Annexes of the EU SCCs appended to this DTA, shall apply as relevant. 
   8. The relevant competent supervisory authority set out in the relevant annexes to the EU SCCs, shall be as follows:
      • Where Customer makes a Restricted Transfer of Customer Personal Data originating from the DIFC, the competent supervisory authority shall be the Dubai International Financial Centre Authority;  
      • Where Customer makes a Restricted Transfer of Customer Personal Data originating from the QFC, the competent supervisory authority shall be the Qatar Financial Centre Authority; and
      • Where Customer makes a Restricted Transfer of Customer Personal Data originating from the Kingdom of Saudi Arabia, the competent supervisory authority shall be the Saudi Authority for Data and Artificial Intelligence.
         

EXHIBIT 1

SECTION 1:    EU SCCS

SECTION I

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) ([1]) for the transfer of personal 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 –Module Two: Clause 8.1(b), 8.9(a), (c), (d) and (e); Module Three: Clause 8.1(a), (c) and (d) and Clause 8.9(a), (c), (d), (e), (f) and (g); 

(iii)      Clause 9 – Module Two: Clause 9(a), (c), (d) and (e); Module Three: Clause 9(a), (c), (d) and (e);

(iv)      Clause 12 –Modules Two and Three: Clause 12(a), (d) and (f);

(v)        Clause 13;

(vi)      Clause 15.1(c), (d) and (e);

(vii)     Clause 16(e);

(viii)    Clause 18 – Modules Two and Three: 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

(a)        An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b)        Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c)        The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

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 organisational measures, to satisfy its obligations under these Clauses.

MODULE TWO: Transfer controller to processor

8.1       Instructions

(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.

8.3       Transparency

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 its 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.

8.4       Accuracy

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 organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised 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 pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, 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 organisational 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 authorised 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 offences (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 ([2]) (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 benefitting 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 defence 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 enquiries 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

MODULE TWO: Transfer controller to processor

(a) The data importer has the controller’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the controller in writing of any intended changes to that list through the addition or replacement of subprocessors at least thirty (30) calendar days in advance, thereby giving the controller 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 controller with the information necessary to enable the controller to exercise its right to object. The data importer shall inform the data exporter of the engagement of the sub-processor(s).

(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. ([3]) The Parties agree that, by complying with this Clause, the data importer fulfils 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 fulfil 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

MODULE TWO: Transfer controller to processor

(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 authorised 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 organisational 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

1. 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 authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

MODULE TWO: Transfer controller to processor

(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, organisation 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

MODULE TWO: Transfer controller to processor

(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

MODULE TWO: Transfer controller to processor

(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 behaviour 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 enquiries, 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

MODULE TWO: Transfer controller to processor

(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 authorising 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 authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards ([4]);

(iii)      any relevant contractual, technical or organisational 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). [For Module Three: The data exporter shall forward the notification to the controller.]

(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 fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation [for Module Three:, if appropriate in consultation with the controller]. 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 [for Module Three: the controller or] 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

MODULE TWO: Transfer controller to processor

15.1 Notification

(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.

[For Module Three: The data exporter shall forward the notification to the controller.]

(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.). [For Module Three: The data exporter shall forward the information to the controller.]

(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 minimisation

(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. [For Module Three: The data exporter shall make the assessment available to the controller.]

(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 [for Module Three: and the controller] 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

MODULE TWO: Transfer controller to processor

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of The Republic of Ireland.

Clause 18 - Choice of forum and jurisdiction

MODULE TWO: Transfer controller to processor

(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 The Republic of Ireland.

(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 EU SCCS

1. LIST OF PARTIES

Data exporter(s): Customer, including its Affiliates where applicable.

Controller.

Data importer(s):

Name: Cofense Inc.

Address: 1602 Village Market Blvd, SE #400 Leesburg, VA 20175 USA

Contact person’s name, position and contact details: Legal Department, legal@cofense.com 

DPO information: Reena Paraguya, General Counsel and DPO, can be contacted at  legal@cofense.com   

Activities relevant to the data transferred under these Clauses:

A provider of the Services and Software, as set forth under the Agreement.

Processor.

 Customer’s acceptance of the Agreement shall bind the Parties to these EU SCCs as of the Effective Date.

2. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Data exporter’s employees, officers, directors, agents, or independent contractors with an assigned unique data exporter email  addrfess.

Categories of personal data transferred

Employment email address, individual full names, geographic location, IP address, employment title, and department.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

Not applicable.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Transferred at the time of upload and may be transferred from time to time depending on data importer’s support services and nature of data exporter’s request(s).

Nature of the processing

Storage, collection, analysis and recording of results using the data importer’s Services and Software.

Purpose(s) of the data transfer and further processing

To provide the Software and Services as set forth in 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

For the term of the Agreement, plus sixty (60) days from the date of the Service license expiration/termination.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

Storage and collection for purposes of providing the Services and Software, as set forth in the Agreement.

100. COMPETENT SUPERVISORY AUTHORITY

The Data Protection Commission of the Republic of Ireland.

ANNEX II TO THE EU SCCS

SUPPLEMENTAL TECHNICAL, ORGANISATIONAL AND CONTRACTUAL MEASURES

Information Security Details for SaaS Subscription Services and Cloud-Hosted Software – Cofense Inc.

APPLICABLE COFENSE PRODUCTS

This Annex covers the following Services and Software:

1. Cofense PhishMe Small Business Edition™ (SBE)
2. Cofense PhishMe Enterprise™
3. Cofense PhishMe Free™
4. Cofense Triage™ (Cloud Edition)
5. Cofense LMS™

COFENSE: SOC 2 TYPE 2

For extra security assurance, Cofense™ has been certified as a Service Organization Controls (SOC) 2 Type 2 environment with regard to security, availability and confidentiality. Our certification applies to our Cofense PhishMe™ and the hosted Cofense Triage™ product lines. Coalfire Controls, LLC, an independent CPA firm, conducted the audit.

Our SOC 2 Type 2 report is available for review with an appropriate non-disclosure agreement (NDA). If you would like to review the SOC 2 Type 2 report, please make this request through your Cofense sales representative. Please note that Cofense LMS is not covered by the SOC 2 Type 2 report.

GLOBAL HOSTING LOCATIONS: AMAZON WEB SERVICES

Cofense PhishMe (Enterprise, SBE, and Free), Cofense LMS, and Cofense Triage (Cloud Edition) are hosted on dedicated systems within a Virtual Private Cloud (VPC) instance of Amazon Web Services (AWS) facilities located in:

• Ashburn, Virginia in the United States;
• Montreal, Canada;
• Frankfurt, Germany;
• Sydney, Australia; and
• Tokyo, Japan.

Cofense PhishMe and Cofense Triage (Cloud Edition) are typically hosted in the VPC instance on the AWS server nearest to the geographical location of our customer. Cofense PhishMe Free is hosted only in Ashburn, VA. Cofense LMS is only hosted on the Ashburn, VA or Frankfurt, Germany instances. Data in Cofense applications may be transferred to any Cofense location in the provision of  our services and software, including to provide customer support and troubleshooting.

AWS operates a shared responsibility model in the Cloud, under which AWS is responsible for the security of the underlying Cloud infrastructure (Security of the Cloud), including the physical security of each data hosting center.

Cofense is responsible for the security of our applications and the associated customer data in our 

Cloud environment (Security in the Cloud). Some of AWS’ certifications are listed below.

• ISO 9001
• ISO 27001
• ISO 27017
• ISO 27018
• SOC 1
• SOC 2
• SOC 3

• C5 (Germany)
• Cyber Essentials Plus (UK)
• DoD SRG
• FedRAMP
• FIPS
• IRAP (Australia)
• MTCS (Singapore)

All AWS-specific information set forth herein is subject to change by AWS. Cofense makes no warranties as to the accuracy of such information. See https://aws.amazon.com/compliance/ for the most current AWS security and compliance information.

AMAZON WEB SERVICES PHYSICAL SECURITY

AWS uses data centers that are state-of-the-art, utilizing innovative architectural and engineering approaches. Amazon has many years of experience in designing, constructing, and operating large- scale platforms within data centers. This experience has been applied to the AWS platform and infrastructure. AWS data centers are housed in nondescript facilities. Physical access is strictly controlled both at the perimeter and at building ingress points by professional security staff utilizing video surveillance, intrusion detection systems, and other electronic means. Authorized staff must pass two-factor authentication a minimum of two times to access data center floors. All visitors and contractors are required to present identification and are signed in and continually escorted by authorized staff.

AWS only provides physical access to their systems and information to employees and contractors who have a legitimate business need for such privileges. When an employee no longer has a business need for these privileges, his or her access is immediately revoked, even if they continue to be an employee of Amazon or Amazon Web Services. All   physical access to data centers by AWS employees is logged and audited routinely.

• Fire Detection and Suppression: Automatic fire detection and suppression equipment has been installed to reduce risk. The fire detection system utilizes smoke detection sensors in all data center environments, mechanical and electrical infrastructure spaces, chiller rooms, and generator equipment rooms. These areas are protected by either wet-pipe, double-interlocked pre-action, or gaseous, sprinkler systems.
• Power: The data center electrical power systems are designed to be fully redundant and maintainable 

without impact to operations, 24 hours a day, seven (7) days a week. Uninterruptible Power Supply 

(UPS) units provide back-up power in the event of an electrical failure for critical and essential loads in 

the facility. Data centers use generators to provide back-up power for the entire facility. 

• Management: AWS monitors electrical, mechanical, and life support systems and equipment so that any issues are immediately identified. Preventative maintenance is performed to maintain the continued operability of equipment.
• Storage Device Decommissioning: When a storage device has reached the end of its useful life, AWS procedures include a decommissioning process that is designed to prevent customer data from being exposed to unauthorized individuals. AWS uses the techniques detailed in DoD 5220.22-M, “National Industrial Security Program Operating Manual,” or NIST 800-88, “Guidelines for Media Sanitization,” to destroy data as part of the decommissioning process. All decommissioned magnetic storage devices are degaussed and physically destroyed in accordance with industry-standard practices.

• Climate and Temperature: Climate control is required to maintain a constant operating temperature for servers and other hardware which prevents overheating and reduces the possibility of service outages. Data centers are conditioned to maintain atmospheric conditions at optimal levels. Personnel and systems monitor and control temperature and humidity at appropriate levels.

REQUIRED DATA

Cofense PhishMe (Enterprise, SBE, and Free)

Cofense PhishMe and Cofense PhishMe Free only requires the corporate email addresses of customer’s employees it wishes to include in its phishing simulations. The addresses must be associated with the customer’s authorized domain(s). Account administrators may need to provide their first and last name and telephone number for two-factor authentication.

At its sole discretion, a customer may choose to optionally upload other employment related data, such as grade, cost center, and division, to create customized reporting.

Statistics about the scenario, including the IP address of any employee who clicks on a link, enters data, or downloads an attachment, are collected from all mock phishing simulations for reporting purposes. Any data entered by an employee during the simulation is not collected or stored. Data is protected in transit by an encrypted HTTPS connection to Cofense PhishMe. Data at rest in the Cofense PhishMe application is encrypted using AES-256.

Cofense Triage (Cloud Edition)

When a customer’s employees report suspicious emails to Cofense Triage, the entirety of the emails and the identity of the reporters are stored on the customer’s cloud-hosted Cofense Triage instance. The contents of these emails are not shared with Cofense. In some cases, as a convenience, the customer may choose to forward reported emails to a mail server owned and operated by Cofense. In these cases, Cofense operates the mail server without access to the emails themselves, and policies are in place to automatically purge data from the mail server after 30 days.

Email messages are transmitted to Cofense Triage via encrypted HTTPS session. Data in Cofense Triage cloud

is encrypted at rest using AES-256.

Cofense LMS

Cofense LMS requires a username, first name, last name, and email address for each employee a customer wishes to enroll in the platform. Cofense LMS collects information about the employee’s use of the platform, such as the number of training attempts, course grades, or policy acknowledgements.

At its sole discretion, a customer may choose to optionally upload other employment related data, such as a phone number or manager name. This additional data is not required to use Cofense LMS. Information transmitted to Cofense LMS takes place via encrypted HTTPS session. Data in Cofense LMS is not encrypted at rest.

ACCESS TO THE SOLUTIONS

Data Access

Cofense PhishMe (Enterprise, SBE, and Free)

Access is limited to those users specified by the customer as operators in the system. From a Cofense side, support, professional services and operations teams have access for the sole reason of providing  support and services through Cofense PhishMe and Cofense PhishMe Free systems which are separate from the corporate infrastructure. Access for both customers and Cofense personnel is logged.

Cofense Triage (Cloud Edition)

Access to Cofense Triage system is limited to those users specified as super users or operators. Cofense personnel who are directly involved with managing the cloud-based Cofense Triage service will not have direct access to Cofense Triage console; they will have access to perform any system administration activities that are required (e.g., database maintenance). Access for both customers and Cofense personnel is logged. Cofense personnel are prohibited from transferring data out of the Triage solution.

Cofense LMS

Cofense personnel has access to provide support and services. Cofense Professional Services staff            would have access to administer the training program if the customer has purchased that option. Access for both customers and Cofense personnel is logged.

User Access Control

Cofense PhishMe (Enterprise, SBE, and Free)

Role-based configuration options are available and full auditing is enabled. Cofense PhishMe access is via multi-factor authentication (MFA) which is configured during account activation. Customers also have the ability to customize their password policy for their operators.

Cofense PhishMe Enterprise also supports single sign-on (SSO) with SAML 2.0; this can be configured by sending a request to Cofense Support.

Cofense Triage (Cloud Edition)

Role-based configuration options are available and full auditing is enabled. Customers also have the ability to customize their password policy for their operators within Cofense Triage Cloud.

Cofense LMS

Cofense LMS uses roles to enable customers to control their access permissions. Cofense LMS provides SAML2 integration for SSO. The customer provides XML metadata to their Identity Cofense (IdP) and Cofense LMS provides XML metadata (SP) to the customer to map the required LMS attributes along with attributes that the customer requests for mapping.

Information Transfer

Cofense PhishMe (Enterprise, SBE, and Free) Access to the dashboard is done over HTTPS. Cofense Triage (Cloud Edition)

Access to the dashboard is done over HTTPS and connection to the mail system is done over SSL with IMAP or Exchange Web Services.

Cofense LMS

Access to the platform is done over HTTPS.

INTERNAL SECURITY POLICIES AND PROCEDURES

• Security Policy & Training: Cofense maintains a security policy and framework that was created according to industry best practices. Training is provided to employees as part of their initial hire, and they are given continued education through our Cofense PhishMe platform. Additionally, many of our employees conduct security research and present and attend security conferences to increase their knowledge.
• Background Checks: Performed to the maximum extent of the law excluding drug screening.
• Business Continuity/Disaster Recovery Plans: Cofense products are not mission-critical. Cofense has developed a formal Continuity Plan which is tested regularly.
• Security Vulnerabilities: The application and environment are scanned regularly by our Production Engineering team with industry-leading solutions. Systems are regularly patched and remediated based upon the results of scanning.
• Network Controls: Traditional firewalls and exposed network services are kept to the absolute minimum and controlled by Cofense Production Engineering.

TEST/DEVELOPMENT ENVIRONMENTS

• Software Development Life Cycle (SDLC): Cofense follows an Agile development methodology using a Scrum framework for the development of software.
• Code Deployments: Set procedure around code deployments includes testing, approval, deployment testing, change announcements, deployment, and final testing.
• Test Data: A separate staging environment exists for testing. Production data (including customer data) is never used in the staging/testing environment).

Any additional security concerns or queries can be addressed to your Cofense Inc. sales representative.

SECTION 2:      INFORMATION REQUIRED FOR THE COMPLETION OF THE UK INTERNATIONAL DATA TRANSFER ADDENDUM TO THE EU COMMISSION STANDARD CONTRACTUAL CLAUSES

The information required by Part 1 of the UK International Data Transfer Addendum to the EU Commission Standard Contractual Clauses is set out below:

Part 1: Tables

Table 1: Parties

Table 2: Selected EU SCCs, Modules and Selected Clauses

Table 3: Appendix Information

“Appendix Information” means the information which must be provided for the selected modules as set out in the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:

Part 2 - Mandatory Clauses

The Mandatory Clauses of the Approved Addendum shall be deemed included hereunder by reference, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 21 March 2022, as it is revised under Section 18 of those Mandatory Clauses.

SECTION 3: SWISS MODIFICATION TO THE EU COMMISSION STANDARD CONTRACTUAL CLAUSES 2021, MODULE 2 FOR PERSONAL DATA TRANSFERS SUBJECT TO SWISS PRIVACY LAWS

Pursuant to the guidance issued by the FDPIC on 27 August 2021 in relation to international transfers of personal data originating from Switzerland or in any case subject to Swiss Privacy Laws (“Swiss Personal Data”) into third countries without an adequate level of data protection, the Parties agree that the EU SCCs Module 2 in this Exhibit will be amended as follows to ensure compliance with the Swiss Ordinance to the Federal Act on Data Protection of 19 June 1992, including any supplemental/succeeding applicable Swiss data protection law (“FADP” or “Swiss Privacy Laws”). Unless otherwise defined in this Swiss Addendum, all capitalised terms used in this Swiss Addendum will have the meanings given to them in the DTA. When this Swiss Addendum applies, except as otherwise set out in this Swiss Addendum, the terms of the DTA will apply to Cofense’s processing of Swiss Personal Data hereunder, subject to the EU SCCs Module 2 being amended or integrated as provided below:

1.           All references to (i) applicable data protection law or “GDPR” will be replaced by “FADP”, (ii) “third country-(ies)” will be replaced by “Swiss third country(ies)”, (iii) “Personal Data” will be replaced with “Swiss Personal Data”, and (iv) “Member State(s)” or “EU Member State(s)” shall be read to refer to Switzerland.

2.           Clause 13 and Annex I. C shall include the Swiss Federal Data Protection and Information Commissioner as the competent supervisory authority.

3.           Clause 17 shall include the law of Switzerland as the governing law.

4.           Clause 18 (b) shall include the courts of Switzerland and the reference to the courts of the Member State in Clause 18 (c) shall be read to refer to the Swiss courts for the place where the data subject has his/her habitual residence.

Customer’s acceptance of the Agreement shall bind the Parties to this Swiss Addendum to the EU SCCs.

[1]  Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.

[2]  The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.

[3]      This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.

[4]      As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.