Personal Data Processing Addendum

THIS ADDENDUM IS DATED AS OF THE EFFECTIVE DATE, AS IDENTIFIED ON THE INITIAL ORDER FORM BETWEEN CUSTOMER AND FASTPATH, INC.

BETWEEN

(1) The Customer identified on the initial Order Form, which Customer is incorporated and registered in the country, with the company number, and at the registered office, each as identified on the Order Form (the "Data exporter"); and
(2) Fastpath Solutions LLC incorporated in the State of Delaware, USA with company number 7992588 whose principle office is at 4093 NW Urbandale Drive / Urbandale, IA 50322 ("Data importer").

BACKGROUND

(A) The Customer and Fastpath entered into a Subscription Services Agreement for certain services as identified on the Order Form by Fastpath ("Subscription Agreement") that may require Fastpath to process Personal Data on behalf of the Customer ancillary to those services.
(B) This Personal Data Processing Addendum ("Addendum") sets out the additional terms, requirements and conditions on which Fastpath will process Personal Data when providing services under the Subscription Agreement. This Addendum substantially replicates the EU Commission’s Standard Contractual Clauses controller to processor. This Addendum also contains other provisions relevant to the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and the California Consumer Protection Act (“CCPA”).

1. DEFINITIONS
1.1.   1.1. “GDPR” shall mean the General Data Protection Regulation (2016/679) along with any member state derogations, laws implementing the GDPR, or regulator guidance that may be issued from time to time;
1.1 “personal data” shall mean information relating, directly or indirectly, to an identified or identifiable natural person. Without limiting the generality of the foregoing, “personal data” includes but is not limited to personal data as defined under GDPR and personal information as defined under CCPA;
1.2 “data subject” shall have the meaning of data subject as defined under GDPR and consumer as defined under CCPA;
1.3 “special categories of data”, “process/processing”, “controller”, “processor”, and “supervisory authority” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
1.4 the “data exporter” means the controller who transfers the personal data;
1.5 the “data importer” means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of this Addendum and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
1.6 the “sub-processor” means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of this Addendum and the terms of the written subcontract;
       1.2. the “applicable data protection law” means (i) all international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements and guidance currently in effect and as they become effective relating in any way to privacy, confidentiality, security, consumer protection, or breach notification that are applicable to personal data and (ii) all industry standards concerning privacy, data protection, confidentiality or information security applicable to “personal data.” Without limiting the generality of the foregoing, “applicable data protection law” shall include GDPR, CCPA, and U.S. state data protection and breach notification laws.  
1.7 “technical and organisational security measures” means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
1.8 “sell” shall have the meanings provided under GDPR or CCPA, as applicable.
1.9 “CCPA” shall mean the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq, and any regulations and guidance that may be issued pursuant to CPPA from time to time.
1.10 “service provider” shall have the meaning as defined in § 1798.140(v) of the CCPA.

2. DETAILS OF THE TRANSFER
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of this Addendum.

3. THIRD-PARTY BENEFICIARY CLAUSE
3.1 The data subject can enforce against the data exporter this clause, clause 4.2 to 4.9(i), clause 5.1 to 5.5, and 5.7 to 5.10, clause 6.1 and 6.2, clause 7, clause 8.2, and clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this clause, clause 5.1 to 5.5 and 5.7, clause 6, clause 7, clause 8.2, and clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter.
3.3 The data subject can enforce against the sub-processor this clause, clause 5.1 to 5.5 and 5.7, clause 6, clause 7, clause 8.2, and clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under this Addendum.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by the applicable data protection law.

4. OBLIGATIONS OF THE DATA EXPORTER
The data exporter agrees and warrants:
4.1 that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
4.2 that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and this Addendum;
4.3 that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
4.4 that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
4.5 that it will ensure compliance with the security measures;
4.6 that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
4.7 to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
4.8 to make available to the data subjects upon request a copy of this Addendum, with the exception of Appendix 1, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with this Addendum, unless this Addendum or the contract contain commercial information, in which case it may remove such commercial information;
4.9 that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under this Addendum; and
4.10 that it will ensure compliance with clause 4.1 to 4.9.

5. OBLIGATIONS OF THE DATA IMPORTER
The data importer agrees and warrants:
5.1 to process the personal data only on behalf of the data exporter and in compliance with its instructions and this Addendum; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
5.2 that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by this Addendum, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
5.3 that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
5.4 that it will promptly notify the data exporter about:

5.4.1 any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
5.4.2 any accidental or unauthorised access; and
5.4.3 any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

5.5 to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
5.6 at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by this Addendum which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
5.7 to make available to the data subject upon request a copy of this Addendum, or any existing contract for sub-processing, unless this Addendum or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
5.8 that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
5.9 that the processing services by the sub-processor will be carried out in accordance with clause 11;
5.10 to send promptly a copy of any sub-processor agreement it concludes under this Addendum to the data exporter.

6. LIABILITY
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
6.3 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in clauses 6.1 and 6.2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under this Addendum as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under this Addendum.
6.4 If the data importer is a “service provider,” this clause 6 will not apply to any claim a data subject may have otherwise been able to bring against the data importer for a breach of the data exporter’s obligations, to the extent such claim applies to actions covered and rights asserted under the CCPA. The data importer will remain subject to prospective liability under the GDPR.
 
7. MEDIATION AND JURISDICTION
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under this Addendum, the data importer will accept the decision of the data subject:

7.1.1 to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
7.1.2 to refer the dispute to the courts in the Member State in which the data exporter is established.

7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

8. COOPERATION WITH SUPERVISORY AUTHORITIES
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to clause 8.2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5.2.

9. GOVERNING LAW
This Addendum shall be governed by the law of the jurisdiction, including that of the Member State, in which the data exporter is established.

10. VARIATION OF THE CONTRACT
The parties undertake not to vary or modify this Addendum. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict this Addendum.

11. SUB-PROCESSING
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under this Addendum without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under this Addendum, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under this Addendum. Where the sub-processor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in clause 6.1 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for sub-processing of the contract referred to in clause 11.1 shall be governed by the law of the jurisdiction, including that of the Member State, in which the data exporter is established.
11.4 The data exporter shall keep a list of sub-processing agreements concluded under this Addendum and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

12. OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA-PROCESSING SERVICES
12.1 The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in clause 12.1.

13. CALIFORNIA CONSUMER PROTECTION LAW
13.1 The restrictions described in this clause 13 apply only in circumstances covered by the CCPA.
13.2 The data importer shall not sell, as this term is defined in the CCPA, any personal information. The data importer is prohibited from further collecting, retaining, using, or disclosing such personal information for any commercial purpose other than for the specific business purpose, as that term is defined in the CCPA, of performing the services specified in the Subscription Agreement. The data importer is prohibited from retaining, using, or disclosing the personal information outside of the direct business relationship between the data exporter and the data importer.
13.3 The data importer hereby certifies that it understands and will comply with the responsibilities and restrictions imposed by this clause 13.

14. OTHER OBLIGATIONS
14.1 This clause 14 contains additional obligations but, to the extent there is any conflict with the preceding clauses, the preceding clauses shall take precedence.
14.2 The data importer shall:

14.2.1 ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
14.2.2 taking into account the nature of the processing, assist the data exporter by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights;
14.2.3 assist the data exporter in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR, or such other applicable data protection law, taking into account the nature of processing and the information available to the data importer.
14.2.4 at the choice of the data exporter, delete or return all the personal data to the data exporter after the end of the provision of services relating to processing, and delete existing copies unless European Union or EU Member State law requires storage of the personal data;
14.2.5 make available to the data exporter all information necessary to demonstrate compliance with the obligations laid down in Article 28 of GDPR, if applicable, and allow for and contribute to audits, including inspections, conducted by the data exporter or another auditor mandated by the data exporter.
14.2.6 immediately inform the data exporter if, in its opinion, an instruction infringes GDPR, other European Union or EU Member State, CCPA, or other applicable data protection law provisions.

14.3 Where the data importer engages another processor for carrying out specific processing activities on behalf of the data exporter, the same data protection obligations as set out in the contract or other legal act between the data exporter and the data importer as referred to in clause 14.2 shall be imposed on that other processor by way of a contract or other legal act under European Union or EU Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of GDPR. Where that other processor fails to fulfil its data protection obligations, the data importer shall remain fully liable to the data exporter for the performance of that other processor's obligations.
14.4 The data importer shall promptly and without undue delay notify the data exporter if any personal data is lost or destroyed or becomes damaged, corrupted, or unusable. The data importer will restore such personal data at its own expense.
14.5 The data importer shall without undue delay notify the data exporter if it becomes aware of:

14.5.1 any accidental, unauthorised or unlawful processing of the Personal Data; or
14.5.2 a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed (“Personal Data Breach”).

14.6 Where the data importer becomes aware of a situation under clause 14.5.1 and/or clause 14.5.2, it shall, without undue delay, also provide the data exporter with the following information:

14.6.1 description of the nature of the situation under clause 14.5.1 and/or clause 14.5.2, including the categories and approximate number of both data subjects and personal data records concerned;
14.6.2 the likely consequences; and
14.6.3 description of the measures taken, or proposed to be taken to address the situation under clause 14.5.1 and/or clause 14.5.2, including measures to mitigate its possible adverse effects.

14.7 Immediately following any unauthorised or unlawful personal data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. The data importer will reasonably co-operate with the data exporter in the data exporter's handling of the matter, including:

14.7.1 assisting with any investigation;
14.7.2 providing the data exporter with physical access to any facilities and operations affected;
14.7.3 facilitating interviews with the data importer's employees, former employees and others involved in the matter;
14.7.4 making available all relevant records, logs, files, data reporting and other materials required to comply with all applicable data protection law or as otherwise reasonably required by the data exporter; and
14.7.5 taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing.

14.8 The data importer will not inform any third party of any Personal Data Breach without first obtaining the data exporter's prior written consent, except when required to do so by law. 
14.9 The data importer agrees that the data exporter has the sole right to determine:

14.9.1 whether to provide notice of the Personal Data Breach to any data subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in the data exporter's discretion, including the contents and delivery method of the notice; and
14.9.2 whether to offer any type of remedy to affected data subjects, including the nature and extent of such remedy.

14.10 The data importer will cover all reasonable expenses associated with the performance of the obligations under clause 14.5 and clause 14.7 unless the matter arose from the data exporter's specific instructions, negligence, willful default or breach of this Addendum, in which case the data exporter will cover all reasonable expenses.
14.11 The data importer will also reimburse the data exporter for actual reasonable expenses that the data exporter incurs when responding to a Personal Data Breach to the extent that the data importer caused such a Personal Data Breach, including all costs of notice and any remedy as set out in clause 14.9.
14.12 The data importer will keep detailed, accurate and up-to-date written records regarding any processing of personal data it carries out for the data exporter, including but not limited to, the access, control and security of the personal data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of personal data to a third country and related safeguards, and a general description of the technical and organisational security measures.
14.13 The data importer will permit the data exporter and its third-party representatives to audit the data importer's compliance with its Agreement obligations, on at least 30 days' notice, during the term of the Subscription Agreement. The data importer will give the data exporter and its third-party representatives all necessary assistance to conduct such audits.

Appendix 1

Data exporter
The data exporter will provide secure data from their source business software system as instructed by importer.  This data will be provided to data importer for analysis and reporting as instructed by importer.  Exporter will control all data provided and may make decisions on what data should be tracked and provided to data importer for analysis.

Data importer
The data importer is a US-based supplier of security and audit software solutions. It is making available a software-as-a-service to the exporter and will host the exporter’s data on servers in the USA, hosted through a sub processor.  Importer will provide reporting and review functionality for use by exporter.

Data subjects
The personal data transferred concern the following categories of data subjects:

• the data exporter’s staff
• the data exporter’s customers
• the data exporter’s customer’s staff
• the data exporter’s vendors
• the data exporter’s vendor’s staff

Categories of data
The personal data transferred concern the following categories of data:

• Personal details including
  • user name
  • system ID
  • email address
  • job title
  • descriptions associated with job title
• No special categories of personal data are involved.

Additional data may be tracked by exporter for which the importer would not know the specific fields being tracked, as those must be chosen by exporter. These personal data fields would be in addition to the ones listed above.

Processing operations
The personal data transferred will be subject to the following basic processing activities:

• Receiving data, including collection, accessing, retrieval, and recording
• Holding data, including storage, organisation and structuring
• Using data, including analysis, reporting, and review
• Protecting data, including restricting, encrypting and security testing
• Returning data to the data exporter or data subject
• Erasing data, including destruction and deletion

• Data Importer has annual SOC 1 and SOC 2 reviews conducted to review the suitability of the design and the operating effectiveness of the controls in place around personal security, system resiliency, system monitoring, information security, application change control, and data communications. Efforts include:
  
  • Use of firewalls and monitoring.
  • Secure configuration of hardware, devices, and software.
  • Corporate policies and training ensure requirements are communicated throughout our organization.
  • Control and segregation of access to data and services.
  • Change control and monitoring, including testing.
  • Malware and virus protection.
  • Maintenance and update of software, hardware, and related systems.
  • Regular backups of data.
• Data Importer utilizes Microsoft Azure as a sub processor to host the software solution and data exporter data. Importer reviews the annual Microsoft Azure SOC 1 and SOC 2 reports to ensure controls in place around personal security, system resiliency, system monitoring, information security, application change control, and data communications are adequate and operating as designed.
• Data Importer has an Incident Response Policy and Program in place to address personal data breaches.
• Data Importer has an Information Security Policy and Program in place to manage and administer sound practices around the collection, administration, and security over personal data from the Data Exporter.