Data Processing Agreement/Addendum

 

 

This Data Processing Agreement (“DPA”) is made and entered into as of this ____ day of Click or tap to enter a date. forms part of our End User License Agreement (available at https://www.controlup.com/privacy-policy/controlup-eula/) (the “Agreement”). You acknowledge that you, on your own behalf as an individual and on behalf of ___________ incorporated under ____________ law, with its principal offices located at ____________________ (“Organization”) (collectively, “You”, "Your”, “Customer”, or “Data Controller”) have read and understood and agree to comply with this DPA, and are entering into a binding legal agreement with ControlUp as defined below (“ControlUp ”, “Us”, “We”, “Our”, “Service Provider” or “Data Processor”) to reflect the parties’ agreement with regard to the Processing of Personal Data (as such terms are defined below) of European individuals including Swiss citizens. Both parties shall be referred to as the “Parties” and each, a “Party”.

 

WHEREAS, ControlUp shall provide services of performance monitoring, troubleshooting, analytics and management of multiple types of IT infrastructures (collectively, the “Services”) for Customer, as described in the Agreement; and

 

 

WHEREAS, In the course of providing the Services pursuant to the Agreement, we may process Personal Data on your behalf, in the capacity of a “Data Processor”; and the Parties wish to set forth the arrangements concerning the processing of Personal Data within the context of the Services and agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

 

NOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the parties, intending to be legally bound, agree as follows:

 

1.       INTERPRETATION AND DEFINITIONS

1.1       The headings contained in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA. References to clauses or sections are references to the clauses or sections of this DPA unless otherwise stated. Words used in the singular include the plural and vice versa, as the context may require. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement.

1.2       Definitions:

(a)          “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

(b)          “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws and Regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and ControlUp, but has not signed its own agreement with ControlUp and is not a "Customer" as defined under the Agreement.

(c)          “CCPA” means the California Consumer Privacy Act of 2018 and its modifications and amendments.

(d)          “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this DPA only, and except where indicated otherwise, the term "Data Controller" shall include yourself, the Organization and/or the Organization’s Authorized Affiliates.

(e)          “ControlUp Group” means ControlUp and its Affiliates engaged in the Processing of Personal Data.

(f)           “Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their Member States and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.

(g)          “Data Subject” means the identified or identifiable person to whom the Personal Data relates.

(h)          “ControlUp” means the relevant ControlUp entity of the following ControlUp legal entities: ControlUp Technologies Ltd., and/or ControlUp Inc, and/or ControlUp GmbH, ControlUp UK Limited, ControlUp Technologies Ltd.

(i)           “FADP” means the Federal Act on Data Protection of 19 June 1992, and as revised as of 25 September 2020.

(j)           “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).

(k)          “Member State” means a country that belongs to the European Union and/or the European Economic Area. “Union” means the European Union.

(l)           “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined under Data Protection Laws and Regulations and/or under the CCPA, as applicable. For the avoidance of doubt, Customer’s business contact information is not by itself deemed to be Personal Data subject to this DPA.

(m)        “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(n)          “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.

(o)          “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Customer, as updated from time to time, and accessible via https://support.controlup.com/docs/controlup-architecture-security-concepts?highlight=archit , or as otherwise made reasonably available by ControlUp.

(p)          “Chief Information Security Officer (CISO)” – sets the framework, approves the Information Security Policy and related standards and operating procedures, assigns roles within ControlUp for implementing the security program, and ensures that the organization maintains its program current and in compliance with relevant laws, regulations, and industry best practices. The CISO is available by email via Security@controlup.com.

(q)          “Sub-processor” means any Processor engaged by ControlUp and/or ControlUp Affiliate to Process Personal Data on behalf of Customer.

(r)          “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

(s)          “Standard Contractual Clauses” or “SCCs” means (i) the standard contractual clauses for the transfer of Personal Data to Data processors established in third countries which do not ensure an adequate level of protection as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council from June 4, 2021, as available here, as updated, amended, replaced or superseded from time to time by the European Commission; or (ii) where required from time to time by a supervisory authority for use with respect to any specific restricted transfer, any other set of contractual clauses or other similar mechanism approved by such Supervisory Authority or by Applicable Laws for use in respect of such Restricted Transfer, as updated, amended, replaced or superseded from time to time by such Regulatory Authority or Data Protection Laws and Regulations.

(t)           “UK GDPR” means the Data Protection Act 2018, as updated, amended, replaced or superseded from time to time by the ICO.

(u)          “UK Standard Contractual Clauses” or “UK SCCs” means the standard contractual clauses for the transfer of Personal Data to Data processors established in third countries which do not ensure an adequate level of protection as set out by the ICO, as available here, as updated, amended, replaced or superseded from time to time by the ICO.

 

2.       PROCESSING OF PERSONAL DATA

2.1       Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data, (i) Customer is the Data Controller, (ii) ControlUp is the Data Processor and that (iii) ControlUp or members of the ControlUp Group may engage Sub-processors pursuant to the requirements set forth in Section 5 “Sub-processors” below. For clarity, this DPA shall not apply with respect to ControlUp processing activity as a Data Controller with respect to ControlUp data as detailed in ControlUp’s privacy policy.

2.2       Customer’s Processing of Personal Data. Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations and comply at all times with the obligations applicable to data controllers (including, without limitation, Article 24 of the GDPR). For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the means by which Customer acquired Personal Data. Without limitation, Customer shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall have any and all required legal bases in order to collect, Process and transfer to Data Processor the Personal Data and to authorize the Processing by Data Processor of the Personal Data which is authorized in this DPA.

2.3       Data Processor’s Processing of Personal Data.

2.3.1        Subject to the Agreement, Data Processor shall Process Personal Data that is subject to this DPA only in accordance with Customer’s documented instructions as necessary for the performance of the Services and for the performance of the Agreement and this DPA, unless required to otherwise by Union or Member State law or any other applicable law to which Data Processor is subject, in which case, Data Processor shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.

2.3.2        To the extent that Data Processor cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind) from Customer and/or its authorized users relating to Processing of Personal Data or where Data Processor considers such a request to be unlawful, Data Processor (i) shall inform Customer, providing relevant details of the problem (but not legal advice), (ii) Data Processor may, without any kind of liability towards Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to Data Processor all the amounts owed to Data Processor or due before the date of termination. Customer will have no further claims against Data Processor (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).

2.3.3        ControlUp will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of ControlUp, to the extent that such is a result of Customer’s instructions.

 

3.       RIGHTS OF DATA SUBJECTS

If Data Processor receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, right to be informed, erasure (“right to be forgotten”), restriction of Processing, data portability, right to object, or its right not to be subject to automated individual decision making, including profiling (“Data Subject Request”), Data Processor shall, to the extent legally permitted, promptly forward such Data Subject Request to Customer and reasonably assist Customer.

 

4.       CONTROLUP PERSONNEL

4.1       Confidentiality

Data Processor shall grant access to the Personal Data to persons under its authority (including, without limitation, its personnel) only on a need to know basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

4.2       Data Processor may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws (in such a case, Data Processor shall inform the Customer of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s),accountant(s), investors or potential acquirers.

 

5.       AUTHORIZATION REGARDING SUB-PROCESSORS

5.1       List of Current Sub-processors and Notification of New Sub-processors

Data Processor current list of Sub-processors is included in Schedule 2 (“Sub-processor List”) and is hereby approved by Data Controller. Data Controller hereby grants general authorization to Data Processor to engage new Sub-processors by notifying Data Controller of the intended change or addition thirty (30) days before the new Sub-processor will be implemented. This Section ‎5 shall not apply to subcontractors of ControlUp which provide ancillary services to support the performance of the DPA. This includes, for example, telecommunication services, maintenance and user service, cleaning staff, or auditors.

5.2       Objection Right for New Sub-processors

Customer may reasonably object to Data Processor’s use of a new Sub-processor for reasons related to the GDPR or Swiss FADP by notifying Data Processor promptly in writing within ten (10) days after receipt of Data Processor’s notice and such written objection shall include the reasons related to the GDPR or Swiss FADP for objecting to Data Processor’s use of such new Sub-processor. Failure to object to such new Sub-processor in writing within ten (10) days following Data Processor’s notice shall be deemed as acceptance of the new Sub-Processor. In the event Customer reasonably objects to a new Sub-processor, as permitted in the preceding sentences, Data Processor will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Data Processor is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by Data Processor without the use of the objected-to new Sub-processor by providing written notice to Data Processor provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to Data Processor. Until a decision is made regarding the new Sub-processor, Data Processor may temporarily suspend the Processing of the affected Personal Data. Customer will have no further claims against Data Processor due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.

5.3       Agreements with Sub-processors

5.3.1   In accordance with Articles 28.7 and 28.8 of the GDPR and Swiss FADP, if and when the European Commission and FDPIC lays down the standard contractual clauses referred to in such Article, the Parties may revise this DPA in good faith to adjust it to such standard contractual clauses.

5.3.2   In accordance with this agreement, all data protection duties and liabilities imposed on the Data Processor by relevant data protection laws and regulations shall be equally applicable to Sub-Processor, in consistency with the provisions herein.

 

6.       SECURITY

6.1       Controls for the Protection of Personal Data

Taking into account the state of the art, the costs of implementation, the scope, the context, the purposes of the Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Data Processor shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR and Article 8 of Swiss FADP for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in the Security Documentation which are hereby approved by Customer. Upon the Customer’s request, Data Processor will use commercially reasonable efforts to assist Customer, at Customer’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR and Articles 22-24 of Swiss FADP considering the nature of the processing, the state of the art, the costs of implementation, the scope, the context, the purposes of the Processing and the information available to Data Processor.

6.2       Security Assessments and Audits

Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement and this DPA, Data Processor shall make available to Customer that is not a competitor of Data Processor (or Customer’s independent, third-party auditor that is not a competitor of Data Processor) a copy of Data Processor’s then most recent third-party audits or certifications, as applicable (provided, however, that such audits, certifications and the results therefrom, including the documents reflecting the outcome of the audit and/or the certifications, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without Data Processor’s prior written approval and, upon Data Processor’s first request, Customer shall return all records or documentation in Customer’s possession or control provided by Data Processor in the context of the audit and/or the certification). At Customer’s cost and expenses, Data Processor shall allow for and contribute to audits, including inspections of Data Processor’s, conducted by the controller or another auditor mandated by the controller (who is not a direct or indirect competitor of Data Processor) provided that the parties shall agree on the scope, methodology, timing and conditions of such audits and inspections. Notwithstanding anything to the contrary, such audits and/or inspections shall not contain any information, including without limitation, personal data that does not belong to Customer. Nothing in this DPA will require Data Processor either to disclose to Customer (and/or its authorized auditors), or provide access to: (i) any data of any other customer of Data Processor; (ii) Data Processor’s internal accounting or financial information; (iii) any trade secret of Data Processor; or (iv) any information that, in Data Processor’s sole reasonable discretion, could compromise the security of any of Data Processor’s systems or premises or cause Data Processor to breach obligations under any applicable law or its obligations to any third party.

 

7.       Personal Data Incident Management and Notification

Data Processor shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Data Controller’s Personal Data (a “Personal Data Incident”). Where, and in so far as, it is not possible to provide the Personal Data Incident at the same time, the Personal Data Incident may be provided in phases without undue further delay. Data Processor shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as Data Processor deems necessary and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within Data Processor’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s users. In any event, Customer will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).

 

 

8.       RETURN AND DELETION OF PERSONAL DATA

Subject to the Agreement, Data Processor shall, at the choice of Customer, delete or return the Personal Data to Customer after the end of the provision of the Services relating to processing, and shall delete existing copies unless applicable law requires storage of the Personal Data. In any event, to the extent required or allowed by applicable law, Data Processor may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defense of legal claims and/or to comply with applicable laws and regulations. If the Customer requests the Personal Data to be returned, the Personal Data shall be returned in the format generally available for Data Processor’s clients.

 

9.       AUTHORIZED AFFILIATES

9.1       Contractual Relationship

The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between Data Processor. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.

9.2       Communication

The Customer shall remain responsible for coordinating all communication with Data Processor under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

 

10.   TRANSFERS OF DATA

10.1    Transfers to countries that offer adequate level of data protection

Personal Data may be transferred from the EU Member States, the three EEA member countries (Norway, Liechtenstein and Iceland) and the United Kingdom (collectively, “EEA”) to countries that offer adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission, the UK supervisory authority or under Swiss FADP (“Adequacy Decisions”) without any further safeguard being necessary.

10.2    Transfers to other countries

If the Processing of Personal Data includes transfers from the EEA (and Switzerland), or the UK to countries outside the EEA which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the Parties shall comply with Chapter V of the GDPR or swiss FADP, including, if necessary, executing the Standard Contractual Clauses adopted by the relevant data protection authorities of the EEA, the Union, the Member States or the European Commission or comply with any of the other mechanisms provided for in the GDPR or swiss FADP for transferring Personal Data to such Other Countries, and the below shall apply:

10.2.1     With respect to the EU transfers of Personal Data, Data Controller as a Data Exporter (as defined in the SCCs) and Data Processor on behalf of itself and each Data Processor Affiliate (as applicable) as a Data Importer (as defined in the SCCs) hereby enter into the SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the SCC and the terms of this DPA, the terms of the SCC shall take precedence.

10.2.2     With respect to the UK transfers of Personal Data (from the UK to other countries which have not been subject to a relevant Adequacy Decision), Customer as a Data Exporter (as defined in the UK SCCs) and ControlUp on behalf of itself and each ControlUp Affiliate (as applicable) as a Data Importer (as defined in the UK SCCs), hereby enter into the UK SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the UK SCC and the terms of this DPA, the terms of the UK SCC shall take precedence.

10.2.3     With respect to the EU transfers of Personal Data, Data Controller as a Data Exporter (as defined in the SCCs) and Data Processor on behalf of itself and each Data Processor Affiliate (as applicable) as a Data Importer (as defined in the SCCs) hereby enter into the Swiss SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the Swiss SCC and the terms of this DPA, the terms of the Swiss SCC shall take precedence.

 

11.   Termination

This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections 2.2, 2.3.3, 8, 11 and 14 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.

 

12.   CCPA.

To the extent that the Personal Data is subject to the CCPA, ControlUp shall not sell or share Customer’s Personal Data. ControlUp acknowledges that when processing Personal Data in the context of the provision of the Services, Customer is not selling or sharing Personal Data to ControlUp. ControlUp agrees not to retain, use or disclose Customer Personal Data: (i) for any purpose other than the Business Purpose (as defined below); (ii) for no other commercial or Business Purpose; or (iii) outside the direct business relationship between ControlUp and Customer. Notwithstanding the foregoing, ControlUp may use, disclose, or retain Customer Personal Data to: (i) transfer the Personal Data to other ControlUp’s entities (including, without limitation, affiliates and subsidiaries), service providers, third parties and vendors, in order to provide the Services to Customer; (ii) to comply with, or as allowed by, applicable laws; (iii) to defend legal claims or comply with a law enforcement investigation; (ii) for internal use by ControlUp to build or improve the quality of its services and/or for any other purpose permitted under the CCPA; (iii) to detect data security incidents, or protect against fraudulent or illegal activity; and (iv) collect and analyze anonymous information. ControlUp shall use commercially reasonable efforts to comply with its obligations under CCPA. If ControlUp becomes aware of any material applicable requirement (to ControlUp as a service provider) under CCPA that ControlUp cannot comply with, ControlUp shall use commercially reasonable efforts to notify Customer. Upon written Customer’s notice, ControlUp shall use commercial reasonable and appropriate steps to stop and remediate ControlUp’s alleged unauthorized use of Personal Data; provided that Customer must explain and demonstrate in the written notice which processing activity of Personal Data it considers to be unauthorized and the applicable reasons. ControlUp shall use commercially reasonable efforts to enable Customer to comply with consumer requests made pursuant CCPA. Notwithstanding anything to the contrary, Customer shall be fully and solely responsible for complying with its own requirements under CCPA. “Business purpose” means the Processing activities that ControlUp will perform to provide Services (as described in the Agreement), this DPA and any other instruction from Customer, as otherwise permitted by applicable law, including, CCPA and the applicable regulations, or as otherwise necessary to provide the Services to Customer.

 

13.   RELATIONSHIP WITH AGREEMENT

In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement. Notwithstanding anything to the contrary in the Agreement, this DPA and/or any other agreement between the parties and to the maximum extent permitted : (A) Us and Our Affiliates’ entire, total and aggregate liability, related to personal data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation under Agreement or applicable law regarding data protection or privacy shall be limited to the amounts paid to us under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (B) In no event will we and/or our affiliates or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings; (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (C) The foregoing exclusions and limitations on liability set forth in this Section ‎shall apply: (i) even if we, our Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).

 

14.   AMENDMENTS

This DPA may be amended at any time by a written instrument duly signed by each of the Parties.

 

15.   LEGAL EFFECT

This DPA shall only become legally binding between Customer and Data Processor when the formalities steps set out in the Section “INSTRUCTIONS ON HOW TO EXECUTE THIS DPA” below have been fully completed. Data Processor may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any Data Processor obligation hereunder may be performed (in whole or in part), and any Data Processor right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Data Processor.

 

16.   SIGNATURE

The Parties represent and warrant that they each have the power to enter into, execute, perform and be bound by this DPA.

You, as the signing person on behalf of Customer, represent and warrant that you have, or you were granted, full authority to bind the Organization and, as applicable, its Authorized Affiliates to this DPA. If you cannot, or do not have authority to, bind the Organization and/or its Authorized Affiliates, you shall not supply or provide Personal Data to ControlUp.

By signing this DPA, Customer enters into this DPA on behalf of itself and, to the extent required or permitted under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent that ControlUp processes Personal Data for which such Authorized Affiliates qualify as the/a “data controller”.

This DPA has been pre-signed on behalf of ControlUp.

Instructions on how to execute this DPA:

 

1.     To complete this DPA, you must complete the missing information; and

2.     Send the completed and signed DPA to us by email, indicating the Customer’s legal name and address, to privacy@controlup.com.

 

 

List of Schedules

●      SCHEDULE 1 – DETAILS OF THE PROCESSING

●      SCHEDULE 2 – SUB-PROCESSOR LIST

●      SCHEDULE 3 – STANDARD CONTRACTUAL CLAUSES

 

The parties’ authorized signatories have duly executed this Agreement:

 

 

Signed for and on behalf of                        Signed for and on behalf of

[Customer’s name]                                   Choose an item.                                                                           

 

Name:                                                          Name:                           

 

Title:                                                             Title:                              

 

Date:                                                            Date:                             

 

Signature:                                                     Signature:                      

 

 

 

 

SCHEDULE 1 – DETAILS OF THE PROCESSING

Nature of Processing

Collection, recording, organization, structuring, storage, erasure by automated and manual means.

Purpose of Processing

The Data Importer shall only be allowed to Process Personal Data on behalf of client for the purpose of Setting up a user account/account(s) for Controller Personal; Setting up profile(s) for users authorized by Controller; Providing support and technical maintenance; Displaying and alerting on Statistical IT performance metrics and data in context of personal data (for example session latency for specific session name).

Duration of Processing

Subject to any Section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, Data Processor will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Categories of Data Subjects

·       Employees – former and current employees of the controller.

·       Customer’s users authorized by Customer to use the Services.

Categories of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

1.     In all available operation modes of the Software; Standalone Mode, On-Prem Mode, as well as Hybrid Cloud Mode, ControlUp collects User registration information as entered by the user during ControlUp user account creation. Such information includes: Name, email, phone number, company name and password.

2.     When Licensee operates the software in a Hybrid Cloud Mode performance related information of Licensee’s monitored End Points and Hosts are sent to Our Servers securely as detailed in Section 3 below.

3.     Data types sent to Our Servers when working in a Hybrid Cloud Mode:

3.1.       Portions of the Main Console and Monitor contain functions that send data to Our Servers when working in an Enterprise Hybrid Cloud Mode.

3.2.       The Data sent contains:

3.2.1.       User registration information as entered by the user during ControlUp User Account creation. Such information includes: Name, email, phone number, company name for the service.

3.2.2.       General User Account settings and configurations. Such information includes host names, private IP, and:

3.2.2.1.      User selected ControlUp’s organization upon logon.

3.2.2.2.      User configured ControlUp’s stress settings.

3.2.2.3.      User configured ControlUp’s security policy settings.

3.2.3.       User login information such as login date/time, login count, login private IP address and usage duration.

3.2.4.       Generated ID’s for ControlUp User Account, organization, and environment.

3.2.5.       User’s License Information and License usage information.

3.2.6.       Static computer information displayed in ControlUp’s computers view while remote computer is not connected to ControlUp console.

3.2.7.       Remote desktop configuration information (No credential information is ever sent)

3.2.8.       Details of system incidents as defined by one of the following. These might include the following Personal Data:

3.2.8.1.      Incident triggers configured by the User.

3.2.8.2.      Incident triggers configured and updated by ControlUp via ControlUp Cloud Analytics.

3.2.9.       Details of IT and Controller’s infrastructure performance metrics and system information as follows: Performance updates and system information about hosts, computers, Users sessions and processes.

3.2.10.    Details of endpoint connected to Controller’s IT infrastructure performance metrics such as: IP Location, Geolocation, Wi-Fi SSID, host name, etc.

3.2.11.    Auditing information of actions executed by ControlUp users and any changes in the product configuration such as IP Location, Wi-Fi SSID, host name, etc.

For the avoidance of doubt, the information subject to the ControlUp’s privacy policy (e.g., log-in details) available here: https://www.controlup.com/privacy-policy/controlup-privacy-policy/ shall not be subject to the terms of this DPA.

.The frequency of the transfer. Continuous basis.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period. As described in this DPA and/or the Agreement.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing. As detailed in Schedule 2.

 

 

 

SCHEDULE 2 – SUB-PROCESSOR LIST

Sub Processor	Data Storage Locations	Product	Nature of Processing	Scope of Processing
Amazon Web Services	US East (Virginia)	ControlUp Real-Time DX, ControlUp Solve, ControlUp Insights	Hosting of customer data and the Services	o   User registration information. o   User general settings and configuration. o   ControlUp customer’s data telemetry (historical data) o   ControlUp Real-Time audit data. For our current customers outside EEA.
	AWS Europe (Frankfurt)			o   Customer’s data telemetry (historical data) Dedicated for our current EEA customers.
	AWS Europe (Ireland)			o   User registration information. o   User general settings and configuration. o   System Incidents data. o   ControlUp Real-Time audit data.
Amazon Web Services	US East (Virginia)	ControlUp Scoutbees	Hosting of customer data and the Services	EUC, Internet and web Application’s performance metrics. For our current customers outside EEA.
	AWS Europe (Frankfurt)			EUC, Internet and web Application’s performance metrics. Dedicated for our current EEA customers.
Microsoft Azure	East US (Virginia)	ControlUp Edge DX	Hosting of customer data and the Services	Physical endpoint devices statistics and performance metrics. Data is processed within customer’s tenant. Data is stored in customer’s tenant in Azure in a region chosen by the customer.
	Central US (Iowa)
	Canada Central (Toronto)
	Germany North (Berlin)
	West Europe (Amsterdam)
	Sweden Central (Galve)
	France Central (Paris)
	Switzerland North (Zurich)
	UAE North (Dubai)
	Central India (Pune)
Microsoft Azure	West Europe (Amsterdam)	ControlUp DEX	Hosting of customer data and the Services	o   User registration data o   Setting and configuration data o   Data telemetry streaming (historical data) Starting October 2023, new customer’s data will be hosted solely in Azure in a region chosen by the customer.
	East US (Virginia)
	Canada (Toronto)
	Australia (New South Wales)

 

SCHEDULE 3 – STANDARD CONTRACTUAL CLAUSES

EU SCCs. If the Processing of Personal Data includes transfers from the EU to countries outside the EEA which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision, the Parties shall comply with Chapter V of the GDPR. The Parties hereby agree to execute the Standard Contractual Clauses as follows:

a)   The Standard Contractual Clauses (Controller-to-Processor and Processor to Processor) as applicable, will apply, with respect to restricted transfers between Customer and ControlUp that are subject to the GDPR.

b)   The Parties agree that for the purpose of transfer of Personal Data between Customer (as Data Exporter) and ControlUp (as Data Importer), the following shall apply: (i) Clause 7 of the Standard Contractual Clauses shall be applicable; (ii) In Clause 9, option 2 shall apply and the method described in Section ‎5 of the DPA (Authorization Regarding Sub-Processors) shall apply; (iii) Clause 11 of the Standard Contractual Clauses shall be not applicable; (iv) In Clause 13: the relevant option applicable to the Customer, as informed by Customer to ControlUp; (v) In Clause 17, option 1 shall apply. The Parties agree that the Standard Contractual Clauses shall be governed by the laws of _____________; and (vi) In Clause 18(b) the Parties choose the courts of _____________, as their choice of forum and jurisdiction.

c)   Annex I.A: With respect to Module Two: (i) Data Exporter is Customer as a data controller and (ii) the Data Importer is ControlUp as a data processor. With respect to Module Three: (i) Data Exporter is Customer as a data processor and (ii) the Data Importer is ControlUp as a data processor (sub-processor). Data Exporter and Data Importer Contact details: As detailed in the Agreement. Signature and Date: By entering into the Agreement and this DPA, each Party is deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the DPA.

d)   Annex I.B of the Standard Contractual Clauses shall be completed as described in Schedule 1 (Details of the Processing) of this DPA.

e)   Annex I.C of the Standard Contractual Clauses shall be completed as follows: The competent supervisory authority is the _____________ supervisory authority.

f)    Annex II of the Standard Contractual Clauses shall be completed as described in the Security Documentation.

g)   Annex III of the Standard Contractual Clauses shall be completed with the authorized sub-processors detailed in Schedule 2 (Sub-processor list) of this DPA.

 

UK SCCs. If the Processing of Personal Data includes transfers from the UK to countries which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision, the Parties shall comply with Article 45(1) of the UK GDPR and Section 17A of the Data Protection Act 2018. The Parties hereby agree to execute the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses as follows:

a)   The UK Standard Contractual Clauses (Controller-to-Processor and Processor to Processor) if applicable, will apply with respect to restricted transfers between Customer and ControlUp that are subject to the GDPR.

b)   The Parties agree that for the purpose of transfer of Personal Data between Customer (as Data Exporter) and ControlUp (as Data Importer), the following shall apply: (i) Clause 7 of the Standard Contractual Clauses shall be applicable; (ii) In Clause 9, option 2 shall apply and the method described in Section ‎5 of the DPA (Authorization Regarding Sub-Processors) shall apply; (iii) Clause 11 of the Standard Contractual Clauses shall be applicable; (iv) In Clause 17, option 1 shall apply. The Parties agree that the Standard Contractual Clauses shall be governed by the laws of England and Wales; and (v) In Clause 18(b) the Parties choose the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts, as their choice of forum and jurisdiction. Which Parties may end this Addendum as set out in Section 19: Importer and/or Exporter, in accordance with the agreed terms of the DPA.

c)   Annex I.A: With respect to Module Two: Data Exporter is Customer as a data controller and the Data Importer is ControlUp as a data processor. With respect to Module Three: Data Exporter is Customer as a data processor and the Data Importer is ControlUp as a data processor (sub-processor). Data Exporter and Data Importer Contact details: As detailed in the Agreement. Signature and Date: By entering into the Agreement and this DPA, each Party is deemed to have signed these UK Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the DPA.

d)   Annex I.B of the UK Standard Contractual Clauses shall be completed as described in Schedule 1 (Details of the Processing) of this DPA.

e)   Annex I.C of the UK Standard Contractual Clauses shall be completed as follows: The competent supervisory authority is the ICO supervisory authority.

f)    Annex II of the UK Standard Contractual Clauses shall be completed as described in the Security Documentation.

g)   Annex III of the UK Standard Contractual Clauses shall be completed with the authorized sub-processors detailed in Schedule 2 (Sub-processor list) of this DPA.

 

Swiss SCCs. If the Processing of Personal Data includes transfers from the Switzerland to countries outside the EEA which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision, where the FADP applies to Swiss Transfers, the Parties hereby agree to execute the Swiss Standard Contractual Clauses as follows:

a)      The Swiss Federal Data Protection and Information Commissioner shall be the sole Supervisory Authority for Swiss Transfers exclusively subject to the FADP;

b)      The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the Standard Contractual Clauses shall be interpreted to include the FADP with respect to Swiss Transfers;

c)      References to Regulation (EU) 2018/1725 are removed;

d)      Swiss Transfers subject to both the FADP and the GDPR, shall be dealt with by the EU Supervisory Authority named above;

e)      References to the “Union”, “EU” and “EU Member State” shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from the possibility of exercising their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Standard Contractual Clauses;

f)        Where Swiss transfers are exclusively subject to the FADP, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FADP; and

g)      Where Swiss transfers are subject to both the FDPA and the GDPR, all references to the GDPR in the Standard Contractual Clauses are to be understood to be references to the FDPA insofar as the Swiss Transfer is subject to the FADP.