Data Protection Addendum
The customer agreeing to these terms (“Customer”) has entered into an agreement with Brightback Inc. and certain of its Affiliates (as applicable, “Brightback”) under which Brightback has agreed to provide services to Customer (as amended from time to time, the "Agreement").
This Data Protection Addendum, including its appendices (the “Addendum”) will be effective and replace any previously applicable data processing and security terms as of the Addendum Effective Date (as defined below). This Addendum forms part of the Agreement.
For purposes of this Addendum, the terms below shall have the meanings set forth below. Capitalised terms that are used but not otherwise defined in this Addendum shall have the meanings set forth in the Agreement.
1.1.“Addendum Effective Date” means, as applicable, (a) 25 May 2018, if the parties agreed to this Addendum prior to or on such date; or (b) the date on which the parties agreed to this Addendum, if such date is after 25 May 2018.
1.2.“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
1.3.“Audit Reports” has the meaning given in Section 5.4.4.
1.4.“Customer Personal Data” means any personal data contained within the data provided to or accessed by Brightback by or on behalf of Customer or Customer end users in connection with the Services.
1.5.“EEA” means the European Economic Area.
1.6.“EU” means the European Union.
1.7.“European Data Protection Legislation” means the GDPR and other data protection laws of the EU, its Member States, Switzerland, Iceland, Liechtenstein and Norway and the United Kingdom, applicable to the processing of Customer Personal Data under the Agreement.
1.8.“GDPR” means 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.
1.9.“Information Security Incident” means a breach of Brightback’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data in Brightback’s possession, custody or control. “Information Security Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
1.10.“Model Contract Clauses” or “MCCs” mean the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
1.11.“Security Documentation” means all documents and information made available by Brightback under Section 5.4.1 (Reviews of Security Documentation).
1.12.“Security Measures” has the meaning given in Section 5.1.1 (Brightback’s Security Measures).
1.13.“Services” means the services and/or products to be provided by Brightback to Customer under the Agreement.
1.14."Subprocessors” means third parties authorised under this Addendum to process Customer Personal Data in relation to the Services.
1.15.“Term” means the period from the Addendum Effective Date until the end of Brightback’s provision of the Services.
1.16.“Third Party Subprocessors” has the meaning given in Section 9 (Subprocessors).
1.17.“Transfer Solution” means the Model Contract Clauses or another solution that enables the lawful transfer of personal data to a third country in accordance with Article 45 or 46 of the GDPR (for example, the EU-U.S. Privacy Shield).
1.18.The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” as used in this Addendum have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses.
2. Duration of Addendum
This Addendum will take effect on the Addendum Effective Date and, notwithstanding the expiration of the Term, will remain in effect until, and automatically expire upon, Brightback’s deletion of all Customer Personal Data as described in this Addendum.
3. Processing of Data
3.1. Roles and Regulatory Compliance; Authorization.
3.1.1.Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
- the subject matter and details of the processing are described in Appendix 1;
- Brightback is a processor of that Customer Personal Data under the European Data Protection Legislation;
- Customer is a controller or processor, as applicable, of that Customer Personal Data under European Data Protection Legislation; and
- each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
3.1.2.Authorization by Third Party Controller. If the European Data Protection Legislation applies to the processing of Customer Personal Data and Customer is a processor, Customer warrants to Brightback that Customer’s instructions and actions with respect to that Customer Personal Data, including its appointment of Brightback as another processor, have been authorised by the relevant controller.
3.2 Scope of Processing.
3.2.1.Customer’s Instructions. By entering into this Addendum, Customer instructs Brightback to process Customer Personal Data only in accordance with applicable law: (a) to provide the Services; (b) as authorised by the Agreement, including this Addendum; and (c) as further documented in any other written instructions given by Customer and acknowledged in writing by Brightback as constituting instructions for purposes of this Addendum.
3.2.2.Brightback’s Compliance with Instructions. Brightback will only process Customer Personal Data in accordance with Customer’s instructions described in Section 3.2.1 (including with regard to data transfers) unless European Data Protection Legislation to which Brightback is subject requires other processing of Customer Personal Data by Brightback, in which case Brightback will notify Customer (unless that law prohibits Brightback from doing so on important grounds of public interest).
4. Data Deletion
4.1. Deletion on Termination. On expiry of the Term, Customer instructs Brightback to delete all Customer Personal Data (including existing copies) from Brightback’s systems in accordance with applicable law as soon as reasonably practicable, unless applicable law requires otherwise.
5. Data Security
5.1 Brightback’s Security Measures, Controls and Assistance.
5.1.1.Brightback’s Security Measures. Brightback will implement and maintain technical and organizational measures to protect Customer Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Personal Data as described in Appendix 2 (the "Security Measures"). Brightback may update or modify the Security Measures from time to time provided that such updates and modifications do not materially decrease the overall security of the Services.
5.1.2.Security Compliance by Brightback Staff. Brightback will grant access to Customer Personal Data only to employees, contractors and Subprocessors who need such access for the scope of their performance, and are subject to appropriate confidentiality arrangements.
5.1.3.Brightback’s Security Assistance. Brightback will (taking into account the nature of the processing of Customer Personal Data and the information available to Brightback) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under European Data Protection Legislation, including Articles 32 to 34 (inclusive) of the GDPR, by:
- implementing and maintaining the Security Measures in accordance with Section 5.1.1 (Brightback’s Security Measures);
- complying with the terms of Section 5.2 (Information Security Incidents); and
- providing Customer with the Security Documentation in accordance with Section 5.4.1 (Reviews of Security Documentation) and the Agreement, including this Addendum.
5.2. Information Security Incidents
5.2.1.Information Security Incident Notification. If Brightback becomes aware of an Information Security Incident, Brightback will: (a) notify Customer of the Information Security Incident without undue delay after becoming aware of the Information Security Incident; and (b) take reasonable steps to identify the case of such Information Security Incident, minimise harm and prevent a recurrence.
5.2.2.Details of Information Security Incident. Notifications made pursuant to this Section 5.2 (Information Security Incidents) will describe, to the extent possible, details of the Information Security Incident, including steps taken to mitigate the potential risks and steps Brightback recommends Customer take to address the Information Security Incident.
5.2.3.Notification. Customer is solely responsible for complying with incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Information Security Incident(s).
5.2.4.No Acknowledgement of Fault by Brightback. Brightback’s notification of or response to an Information Security Incident under this Section 5.2 (Information Security Incidents) will not be construed as an acknowledgement by Brightback of any fault or liability with respect to the Information Security Incident.
5.3. Customer’s Security Responsibilities and Assessment.
5.3.1.Customer’s Security Responsibilities. Customer agrees that, without prejudice to Brightback’s obligations under Section 5.1 (Brightback’s Security Measures, Controls and Assistance) and Section 5.2 (Information Security Incidents):
a. Customer is solely responsible for its use of the Services, including:
i) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Personal Data;
ii) securing the account authentication credentials, systems and devices Customer uses to access the Services;
iii) securing Customer’s systems and devices Brightback uses to provide the Services; and
iv) backing up its Customer Personal Data; and
b. Brightback has no obligation to protect Customer Personal Data that Customer elects to store or transfer outside of Brightback’s and its Subprocessors’ systems (for example, offline or on-premises storage).
5.3.2.Customer’s Security Assessment.
a) Customer is solely responsible for reviewing the Security Documentation and evaluating for itself whether the Services, the Security Measures and Brightback’s commitments under this Section 5 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation.
b) Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Brightback as set out in Section 5.1.1 (Brightback’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Personal Data.
5.4 Reviews and Audits of Compliance
5.4.1.Customer may audit Brightback’s compliance with its obligations under this Addendum up to once per year. In addition, to the extent required by European Data Protection Legislation, including where mandated by Customer’s supervisory authority, Customer or Customer’s supervisory authority may perform more frequent audits (including inspections). Brightback will contribute to such audits by providing Customer or Customer’s supervisory authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to the Services.
5.4.2.If a third party is to conduct the audit, Brightback may object to the auditor if the auditor is, in Brightback’s reasonable opinion, not suitably qualified or independent, a competitor of Brightback, or otherwise manifestly unsuitable. Such objection by Brightback will require Customer to appoint another auditor or conduct the audit itself.
5.4.3.To request an audit, Customer must submit a detailed proposed audit plan to email@example.com at least two weeks in advance of the proposed audit date. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Brightback will review the proposed audit plan and provide Customer with any concerns or questions (for example, any request for information that could compromise Brightback security, privacy, employment or other relevant policies). Brightback will work cooperatively with Customer to agree on a final audit plan. Nothing in this Section 5.4 shall require Brightback to breach any duties of confidentiality.
5.4.4.If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor (“Audit Reports”) within twelve (12) months of Customer’s audit request and Brightback confirms there are no known material changes in the controls audited, Customer agrees to accept those findings in lieu of requesting an audit of the controls covered by the report.
5.4.5.The audit must be conducted during regular business hours at the applicable facility, subject to the agreed final audit plan and Brightback’s health and safety or other relevant policies, and may not unreasonably interfere with Brightback business activities.
5.4.6.Customer will promptly notify Brightback of any non-compliance discovered during the course of an audit and provide Brightback any audit reports generated in connection with any audit under this Section 5.4, unless prohibited by European Data Protection Legislation or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and/or confirming compliance with the requirements of this Addendum. The audit reports are Confidential Information of the parties under the terms of the Agreement.
5.4.7.Any audits are at Customer’s expense. Customer shall reimburse Brightback for any time expended by Brightback or its Third Party Subprocessors in connection with any audits or inspections under this Section 5.4 at Brightback’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit.
5.4.8.The parties agree that this Section 5.4 shall satisfy Brightback’s obligations under the audit requirements of the Model Contractual Clauses applied to Data Importer under Clause 5(f) and to any Sub-processors under Clause 11 and Clause 12(2).
6. Impact Assessments and Consultations
Brightback will (taking into account the nature of the processing and the information available to Brightback) reasonably assist Customer in complying with its obligations under European Data Protection Legislation in respect of data protection impact assessments and prior consultation, including, if applicable, Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by:
6.1.Making available for review copies of the Audit Reports or other documentation describing relevant aspects of Brightback’s information security program and the security measures applied in connection therewith; and
6.2.providing the information contained in the Agreement including this Addendum.
7. Data Subject Rights
7.1.Customer’s Responsibility for Requests. During the Term, if Brightback receives any request from a data subject in relation to Customer Personal Data, Brightback will advise the data subject to submit their request to Customer and Customer will be responsible for responding to any such request.
7.2.Brightback’s Data Subject Request Assistance. Brightback will (taking into account the nature of the processing of Customer Personal Data) provide Customer with self-service functionality through the Services or other reasonable assistance as necessary for Customer to fulfil its obligation under European Data Protection Legislation to respond to requests by data subjects, including if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights set out in in Chapter III of the GDPR. Customer shall reimburse Brightback for any such assistance beyond providing self-service features included as part of the Services at Brightback’s then-current professional services rates, which shall be made available to Customer upon request.
8. Data Transfers
8.1.Data Storage and Processing Facilities. Brightback may, subject to Section 8.2 (Transfers of Data Out of the EEA), store and process Customer Personal Data anywhere Brightback or its Subprocessors maintains facilities.
8.2.Transfers of Data Out of the EEA.
8.2.1.Brightback’s Transfer Obligations. If the storage and/or processing of Customer Personal Data (as set out in Section 8.1 (Data Storage and Processing Facilities)) involves transfers of Customer Personal Data out of the EEA or Switzerland, and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), Brightback will make such transfers in accordance with a Transfer Solution, and make information available to Customer about such Transfer Solution upon request.
8.2.2.Customer’s Transfer Obligations. In respect of Transferred Personal Data, Customer agrees that if under European Data Protection Legislation Brightback reasonably requires Customer to enter into Model Contract Clauses or use another Transfer Solution offered by Brightback, and reasonably requests that Customer take any action (which may include execution of documents) required to give full effect to such solution, Customer will do so.
8.3.Disclosure of Confidential Information Containing Personal Data. If Customer has entered into Model Contract Clauses as described in Section 8.2 (Transfers of Data Out of the EEA), Brightback will, notwithstanding any term to the contrary in the Agreement, make any disclosure of Customer's Confidential Information containing personal data, and any notifications relating to any such disclosures, in accordance with such Model Contract Clauses. [For the purposes of the Model Contract Clauses, Customer and Brightback agree that (i) Customer will act as the data exporter on Customer’s own behalf and on behalf of any of Customer’s entities and (ii) Brightback or its relevant Affiliate will act on its own behalf and/or on behalf of Brightback’s Affiliates as the data importers.
9.1.Consent to Subprocessor Engagement. Customer specifically authorises the engagement of Brightback’s Affiliates as Subprocessors. In addition, Customer generally authorises the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If Customer has entered into Model Contract Clauses as described in Section 9.2 (Transfers of Data Out of the EEA), the above authorizations will constitute Customer’s prior written consent to the subcontracting by Brightback of the processing of Customer Personal Data if such consent is required under the Model Contract Clauses.
9.2. Information about Subprocessors. Information about Subprocessors, including their functions and locations, is available at https://brightback.com/legal/subprocessors (as may be updated by Brightback from time to time in accordance with this Addendum).
9.3. Requirements for Subprocessor Engagement. When engaging any Subprocessor, Brightback will enter into a written contract with such Subprocessor containing data protection obligations not less protective than those in the Agreement (including this Addendum) with respect to the protection of Customer Personal Data to the extent applicable to the nature of the Services provided by such Subprocessor. Brightback shall be liable for all obligations subcontracted to, and all acts and omissions of, the Subprocessor.
9.4.Opportunity to Object to Subprocessor Changes.
When any new Third Party Subprocessor is engaged during the Term, Brightback will, at least 30 days before the new Third Party Subprocessor processes any Customer Personal Data, notify Customer of the engagement (including the name and location of the relevant Subprocessor and the activities it will perform).
Customer may object to any new Third Party Subprocessor by providing written notice to Brightback within ten (10) business days of being informed of the engagement of the Third Party Subprocessor as described above. In the event Customer objects to a new Third Party Subprocessor, Customer and Brightback will work together in good faith to find a mutually acceptable resolution to address such objection. If the parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Customer may, as its sole and exclusive remedy, terminate the Agreement by providing written notice to Brightback.
10. Processing Records
10.1.Brightback’s Processing Records. Customer acknowledges that Brightback is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Brightback is acting and, where applicable, of such processor’s or controller's local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Brightback, and will ensure that all information provided is kept accurate and up-to-date.
11.1.Liability Cap. The total combined liability of either party and its Affiliates towards the other party and its Affiliates, whether in contract, tort or any other theory of liability, under or in connection with the Agreement, this Addendum, and the Model Contract Clauses if entered into as described in Section 8.2 (Transfers of Data Out of the EEA) combined will be limited to limitations on liability or other liability caps agreed to by the parties in the Agreement, subject to Section 11.2 (Liability Cap Exclusions).
11.2.Liability Cap Exclusions. Nothing in Section 11.1 (Liability Cap) will affect any party’s liability to data subjects under the third party beneficiary provisions of the Model Contract Clauses to the extent limitation of such rights is prohibited by the European Data Protection Legislation.
Customer acknowledges and agrees that Brightback may create and derive from processing related to the Services anonymised and/or aggregated data that does not identify Customer or any natural person, and use, publicise or share with third parties such data to improve Brightback’s products and services and for its other legitimate business purposes.
Notwithstanding anything to the contrary in the Agreement, any notices required or permitted to be given by Brightback to Customer may be given (a) in accordance with the notice clause of the Agreement; (b) to Brightback’s primary points of contact with Customer; and/or (c) to any email provided by Customer for the purpose of providing it with Service-related communications or alerts. Customer is solely responsible for ensuring that such email addresses are valid.
14. Effect of These Terms
Notwithstanding anything to the contrary in the Agreement, to the extent of any conflict or inconsistency between this Addendum and the remaining terms of the Agreement, this Addendum will govern.