Data Protection Addendum

Prior Versions:
[January 2020 - https://www.egnyte.com/january-2020/data-protection-addendum]
[December 2020 - https://www.egnyte.com/december-2020/data-protection-addendum]

To account for recent changes in applicable law/regulations and to further enhance Egnyte’s commitments to its customers, Egnyte has upgraded its DPA, as set forth below. Any customer with an agreement that includes an older version of Egnyte's DPA shall automatically be upgraded to the below DPA. Customers interested in having a prior DPA continue to govern should reach out to Egnyte via email to legal@egnyte.com.

Without derogating from the provisions hereunder and solely to the extent this DPA, including its Standard Contractual Clauses Annex for the transfer of personal data to third countries, is missing required provisions under Data Protection Laws and Regulations for the processing of personal data in the European Union and European Economic Area, such applicable provisions of the Standard contractual clauses for controllers and processors in the EU/EEA, published on June 4, 2021 (https://ec.europa.eu/info/law/law-topic/data-protection/publications/standard-contractual-clauses-controllers-and-processors), shall be deemed incorporated herein.

Updated September 2021

A. DEFINITIONS

“Data Protection Authorities (DPAs)” means independent public supervisory authorities established under GDPR and United States Data Protection Laws and Regulations.

“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, and the United Kingdom, to which Egnyte is bound in relation to its processing of Personal Data under the Agreement.

“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Personal Data” means any Customer Content relating to an identified or identifiable natural person under applicable Data Protection Laws and Regulations.

“Security Breach” means the actual or suspected unauthorized acquisition, destruction, loss, misappropriation or access to, disclosure, use, or modification of the Customer Content while stored by Egnyte. A Security Breach does not include any of those events occurring due to Customer or User actions or inactions, such as a failure to adequately protect Account access information, or the transfer of Content by Customer or a User to a third party outside of Egnyte’s network, etc.

B. DATA PROCESSING

The parties acknowledge and agree that Customer is the “Controller” and Egnyte is the “Processor” with regard to the processing of Personal Data, and Egnyte agrees to:

  1. comply with its obligations under applicable Data Protection Laws and Regulations, as well as the confidentiality and data security provisions of this Agreement;
  2. only process the Personal Data for the limited purposes of performing its obligations as a data processor under this Agreement;
  3. process the Personal Data only in accordance with Customer's documented instructions (from time to time) and shall procure that any Egnyte personnel or other person acting under the authority of Egnyte does the same;
  4. assist Customer in fulfilling its obligations to respond to requests for exercising the User’s (“data subject’s”) rights under GDPR, including by implementing appropriate technical and organisational measures to enable such assistance. To the extent legally permitted, Customer shall be solely responsible for any costs arising from Egnyte’s provision of such assistance;
  5. promptly provide to Customer such assistance as the Customer may from time to time reasonably require to enable it to comply with its security, breach notification, impact assessment, prior consultation, record keeping and DPA cooperation responsibilities under GDPR, including assistance with Customer-initiated audits as strictly necessary to verify compliance pursuant to Article 28(3)(h), which shall not be conducted more than once annually and shall not compromise the confidentiality or security of Egnyte’s operations or systems, including the data of other Egnyte customers;
  6. allow for and contribute to audits and inspections conducted by DPAs having proper legal authority over Egnyte’s Services’ infrastructure;
  7. only store and process Content, including Personal Data, within the EEA for Customers who have notified Egnyte of this requirement in writing prior to implementation of the Services;
  8. maintain a record of all categories of processing activities carried out on behalf of a Customer, in accordance with GDPR;
  9. notify Customer of any communication, including complaints, received from Users pertaining to the privacy or security of their Personal Data; and
  10. purge all Content following termination of the Agreement as set forth in the termination provisions of the Agreement.

Customer shall, in its use of the Services, only submit (and ensure that Users submit) instructions to Egnyte that comply with applicable Data Protection Laws and Regulations. Customer and its Users shall have sole responsibility for the accuracy, quality, and legality of the Personal Data and the means by which they acquired Personal Data.

C. PERSONAL DATA TRANSFERS FROM EUROPE TO THE UNITED STATES

With respect to any Egnyte restricted transfers of Personal Data from the EU, EEA, or UK to Egnyte’s facilities in the United States (per the requests of Customer or Users) requiring the use of an approved transfer mechanism, up until July 2020, Egnyte utilized the EU-U.S. Privacy Shield Framework self-certification for such purpose. While Egnyte remains committed to handling all such Personal Data in accordance with such framework, in light of the fact that, in July 2020, the Court of Justice of the European Union invalidated the EU-Privacy Shield Framework, and until such time as a new Privacy Shield framework is secured that is deemed adequate by the European Union, Egnyte (and Customer) is committed to complying with the Standard Contractual Clauses (“SCCs”) attached as an Annex to this Data Protection Addendum. In the event of any conflict between the SCCs and Privacy Shield, the SCCs shall govern.

D. SUBCONTRACTORS

Egnyte may subcontract portions of the Services, provided that Egnyte shall remain the primary provider of the Services and is responsible for all such subcontracted obligations under the Agreement. If Customer is located within the EEA or has Users based in the EEA, prior to Egnyte engaging a new subcontractor during the Subscription Term that will assist in the processing of Personal Data under the Agreement, Egnyte shall provide Customer with advance notice of the engagement of the subcontractor and an opportunity to object thereto. If Customer objects on reasonable grounds to the engagement of the new subcontractor, the parties will discuss in good faith the possible options for resolving the objection. Egnyte will ensure that any sub-processor agreement at least contain the same data protection obligations as set out in this Agreement.

A current list of Egnyte subcontractors/subprocessors may be found at the following link: https://www.egnyte.com/subcontractors.

E. INFORMATION SECURITY PROCEDURES

  1. General Description of Egnyte’s Information Security Program. Egnyte’s information security program is designed to:
    • ensure the security, integrity and confidentiality of Customer Content (which includes Personal Data), including by implementing appropriate technical and organisational measures;
    • protect against anticipated threats or hazards to the security or integrity of Customer Content;
    • protect against unauthorized access to or use of the Customer Content that could result in substantial harm or inconvenience to the person that is the subject of the Customer Content; and
    • ensure the proper disposal of Customer Content.
  2. General Procedures.
    1. Data Storage. Egnyte stores Customer Content on secure computers located in a physically secure and controlled data center environment. Egnyte employs technologies that are consistent with industry standards for firewalls and other security technologies to prevent Egnyte computers from being accessed by unauthorized persons. All data is encrypted at rest with AES-256 bit encryption keys.
    2. Data Transfers. Egnyte uses HTTPS standards to protect data integrity during transfers. In addition, subject to Section 2.a above, Egnyte will maintain at least the following security measures:
      1. HTTP with SSL 256-bit encryption (HTTPS); and
      2. encrypted passwords for the Services.
  3. Security and Data Protection Impact Assessments. If requested by Customer, Egnyte will cooperate with Customer in an initial security assessment, including the completion of a risk assessment questionnaire. In addition, Egnyte will provide Customer with available and relevant SSAE18-related reports from the third party data center providers utilized in the provision of the Services, as well as with the results of the penetration testing which Egnyte has periodically performed by qualified third party security consultants.

    Upon Customer’s written request and provided that i. Customer does not have access to the necessary information and ii. such information is within Egnyte’s possession (that is, without Egnyte having to expend more than nominal efforts to generate the information), Egnyte shall provide Customer with the information it possesses that is needed to fulfill Customer’s obligation under GDPR to carry out a data protection impact assessment related to Customer’s use of the Services. To the extent required under GDPR, Egnyte will provide additional, reasonable cooperation to Customer in its prior consultation with a Data Protection Authority regarding the data protection impact assessment.

    All such information provided by Egnyte hereunder shall be considered the Confidential Information of Egnyte and held in confidence in accordance with the terms of the Agreement.
  4. Network and Physical Security Requirements.
    1. Basic Security Requirements. In addition to Section 2.a above, Egnyte will:
      1. maintain a working, tuned network firewall to protect Customer Content;
      2. regularly install security patches on the Services network;
      3. ensure authentication to the Services’ network web front-end is encrypted;
      4. where applicable, use and regularly update malware prevention tools;
      5. maintain a credential management process, which includes assigning a unique ID to each person with computer access and requiring periodic password changes;
      6. track access to systems, and generate and store audit trail and logs to help identify malicious activity;
      7. regularly test efficiency and health of security controls, systems and processes;
      8. maintain a policy that addresses information security for employees and representatives;
      9. restrict physical access to systems containing Customer Content;
      10. restrict remote access to the network / devices and employ secure remote access controls to verify the identity of users connecting to the Services; and
      11. protect backups from unauthorized access during transit and storage.
    2. Encryption. Egnyte will use cryptographic algorithms that have been published and evaluated by the general cryptographic community with sufficient strength to equate to 256-bit or better.
  5. Security Breach.
    1. Notification of Security Breach. Egnyte will notify Customer in accordance with applicable law of any actual or suspected Security Breach of any Customer Content immediately following discovery of a Security Breach, and provide Customer with a detailed description of the breach. Furthermore, Egnyte, without undue delay, shall notify Customer of any breach of data security that results in a breach of confidentiality of Personal Data known by Egnyte to be within its control, and the parties shall cooperate in determining the appropriate measures to be taken to address such a breach. Additionally, Egnyte shall ensure that its representatives handling Customer’s Personal Data shall be bound by confidentiality provisions no less strict than those of this Agreement. To the extent that User notification of an actual or suspected Security Breach is legally required or is desired by Customer, Egnyte will notify Customer’s administrator and Customer shall notify all other Users of the breach.
    2. Investigation of Security Breach. Egnyte will:
      1. promptly investigate each Security Breach;
      2. take all reasonable steps necessary to limit, stop or otherwise remedy the Security Breach;
      3. promptly implement appropriate internal technical and procedural controls to reduce the likelihood of a recurrence of a Security Breach; and
      4. provide Customer with documentation detailing the controls implemented.

        In addition, in the event of a Security Breach, Customer will have the right to conduct on-premises investigations at the third party data centers utilized by Egnyte in the provision of the Services, subject to the internal rules and processes of such data centers and only as reasonably necessary to investigate the breach.
  6. Backup and Business Continuity. Egnyte maintains a business continuity program, including a recovery plan, sufficient to ensure Egnyte can continue to function through an operational interruption and continue to provide Services to Customer. The program provides a framework and methodology, including a business impact analysis and risk assessment process, necessary to identify and prioritize critical business functions. In the event Egnyte experiences an event requiring recovery of systems, information or services, the recovery plan will be executed promptly. Egnyte continuously enhances the Services’ security and availability of its multi-tenant enterprise class cloud infrastructure. Egnyte maintains multiple copies of Customer’s Content across two data centers at all times to ensure availability and redundancy.
  7. Egnyte Encryption Key Management. Egnyte uses the Egnyte Object Store to encrypt all Customer Content “at rest” in the Services, as follows:
    1. The Egnyte Object Store uses an AES-256 bit symmetric key algorithm to generate the Customer encryption key. The key is (i) generated per Egnyte domain, (ii) generated at the time the Customer Egnyte domain is created, (iii) unique to each Customer Egnyte domain, and (iv) stored in a secure key vault. This secure key vault is protected by the access control policy set in Egnyte’s information security documentation regarding ISO27001 (or comparable) compliance.
    2. Customer may choose to use its own encryption key management by integrating with an Egnyte supported Hardware Security Module (HSM) solution.

ANNEX: STANDARD CONTRACTUAL CLAUSES

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.

1Where 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 of 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 […].

(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);

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

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

(v) Clause 13;

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

(vii) Clause 16(e);

(viii) Clause 18 – Module Two: 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

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 the 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 Union2 (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.

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.

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

(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.

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

(c) The data importer shall provide, at the data exporter’s request, a copy of such a subprocessor 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 subprocessor 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

(a) 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) 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. 

(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 safeguards4;

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.

(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).

(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. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed 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.

(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.).

(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.

(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 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 one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Poland. 

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 Poland.

(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.

APPENDIX 

ANNEX I

A. LIST OF PARTIES

MODULE TWO: Transfer controller to processor

Data exporter(s): The data exporter is the Customer, the recipient of Services as defined in the Agreement to which these SCCs are attached.

Data importer(s): The data importer is Egnyte, Inc., the provider of the Services to the Customer as further described in the Agreement to which these SCCs are attached.

B. DESCRIPTION OF TRANSFER

MODULE TWO: Transfer controller to processor

Categories of data subjects whose personal data is transferred

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

Users under the Agreement

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Categories of personal data transferred

The personal data transferred concern the following categories of data:

Customer data and Content provided by Customer under the Agreement. For clarity, Egnyte does not access Content via its Services.

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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.

Subject to Customer Content

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

Subject to Customer action – repeated/continuous

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Nature of the processing

The nature of the processing of the personal data are set out in the Agreement and for the purpose of providing the Services.

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Purpose(s) of the data transfer and further processing

The purpose of the processing of the personal data are set out in the Agreement and for the purpose of providing the Services.

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The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period 

The duration of the processing of the personal data are as set out in the Agreement.

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

The subject matter, nature, and duration of the processing of the personal data are set out in the Agreement and as needed to provide the Services, including any applicable sub-processors defined therein.

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C. COMPETENT SUPERVISORY AUTHORITY

MODULE TWO: Transfer controller to processor

Supervisory Authority governing Poland

Pursuant to Article 27 of the General Data Protection Regulation (GDPR), Egnyte has appointed Egnyte Sp. z o.o. as its local representative within the European Union, and this representative can be reached as follows:

Egnyte Poland Sp. z o. o.

Abpa A. Baraniaka 6

61-131 Poznań

Phone: +48 882 653 482

Email:poznanoffice@egnyte.com

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ANNEX II – TECHINCAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

MODULE TWO: Transfer controller to processor

Security measures are described specifically and in detail in the Agreement, including in the DPA to which these Standard Contractual Clauses are attached.

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ANNEX III – LIST OF SUB-PROCESSORS

MODULE TWO: Transfer controller to processor

The controller has authorised the use of the sub-processors listed at the following link: https://www.egnyte.com/subcontractors.