Data Processing Addendum

Data Processing Addendum

This Data Processing Addendum (“Addendum”) is effective as of May 25, 2018 (the “Addendum Effective Date”) by and between ReelDx, Inc. (“ReelDx”) and the customer specified in the ReelDx Agreement between you and ReelDx governing your use of the Service Offering (the “Agreement”). This Addendum supplements the ReelDx Agreement, as updated from time to time between you and ReelDx, or other agreement between you and ReelDx governing your use of the Service Offering. In the event of conflict between this Addendum and the ReelDx Agreement, this Addendum shall control with respect to its subject matter.

Additional Definitions. Unless otherwise indicated, capitalized terms have the meaning stated in the ReelDx Agreement. In addition, the following words have the following meanings:

“Controller” means an entity which, alone or jointly with others, determines the purposes and means of the Processing of the Personal Data.

“Model Clauses” means the Standard Contractual Clauses (Controller to Processor) approved by the EU Commission for transfers of Personal Data to countries outside the European Economic Area (“EEA”) that have not been deemed by the European Commission as providing an adequate level of data protection.

“Personal Data” means any information relating to an identified or identifiable natural person which is subject to Privacy Laws and is Processed by ReelDx, acting as a Processor on your behalf, in connection with the provision of the Service Offering.

“Privacy Laws” means any data protection and/or privacy related laws, statutes, directives, or regulations (and any amendments or successors thereto) to which a party to the ReelDx Agreement is subject and which are applicable to the Processing of Personal Data in connection with the Service Offering.

“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated 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.

“Processor” means an entity which Processes the Personal Data on behalf of the Controller.

“Security Incident” means a breach of ReelDx’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Personal Data transmitted, stored or otherwise Processed on your behalf by ReelDx hereunder.

“Subprocessor” means a third party engaged by ReelDx (including without limitation an affiliate and/or subcontractor of ReelDx) in connection with the Processing of the Personal Data in relation to the provision of the Service Offering.

Applicability. This Addendum shall apply only to the extent you are established within the EEA or Switzerland and to the extent ReelDx Processes Personal Data on your behalf in connection with the Service Offering.

Instructions and details of processing. You are the controller and ReelDx is the Processor of the Personal Data processed under the ReelDx Agreement. You authorize ReelDx to Process the Personal Data to provide the Service Offering in accordance with ReelDx’s rights and obligations under the ReelDx Agreement. This Addendum and the ReelDx Agreement, and any configurations by you or your authorized users, comprise your complete instructions to ReelDx regarding the Processing of Personal Data. Any additional or alternate instructions must be agreed between the parties in writing, including the costs (if any) associated with complying with such instructions. You agree that you will not require ReelDx to undertake or engage in any activity that would require, or result in, ReelDx acting in the capacity of a Controller.You represent and warrant that your instructions will comply with applicable law, including applicable Privacy Laws and will not require ReelDx to take any action prohibited by applicable law, including applicable Privacy Law.ReelDx is not responsible for determining if your instructions are compliant with applicable law.However, if ReelDx is of the opinion that your instruction infringes applicable Privacy Laws, ReelDx shall notify you and shall not be required to comply with such infringing instruction. Details of the subject matter of the Processing, its duration, nature and purpose, and the type of Personal Data and categories of individuals to which such Personal Data relates are as specified in the description of the Service Offering, the ReelDx Agreement, and the ReelDx GDPR and Data Security FAQ available here: 

Disclosures. ReelDx may only disclose the Personal Data to third parties (including its Subprocessors) for the purpose of: (a) complying with your reasonable and lawful instructions; (b) as required in connection with the Service Offering and as permitted by this Addendum and/or (c) as required to comply with Privacy Laws, or an order of any court, tribunal, regulator or government agency with competent jurisdiction to which ReelDx is subject provided that ReelDx will (to the extent permitted by law) inform the you in advance of making any disclosure of Personal Data and will reasonably cooperate with you to limit the scope of such disclosure to what is legally required.

Compliance with Laws. You and ReelDx agree to comply with our respective obligations under Privacy Laws applicable to the Service Offering.You represent and warrant (on your behalf and on behalf of each of your affiliates and any applicable third-parties) that you have obtained all necessary authorizations and consents required for your and ReelDx’s Processing of Personal Data in connection with the Service Offerings in compliance with Privacy Laws prior to disclosing, transferring, or otherwise making available, any Personal Data to ReelDx.ReelDx shall, to the extent commercially practicable, assist you to respond to requests for exercising the rights of individuals under applicable Privacy Laws. ReelDx reserves the right to charge you for such assistance if the cost of assisting exceeds a nominal amount.ReelDx shall notify you as soon as reasonably practicable of any request ReelDx receives from individuals relating to the exercise of their rights under applicable Privacy Laws during the term of the ReelDx Agreement (to the extent such request relates to the Personal Data provided by you to ReelDx) and you shall be responsible for any such request.

Confidentiality. ReelDx shall maintain the confidentiality of the Personal Data in accordance with Privacy Laws applicable to Processors and shall ensure ReelDx employees or representatives authorized to process the Personal Data (including its Subprocessors) have committed themselves to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.

Security. Taking into the state of the art, the costs of implementation, the nature, scope, context and purposes of the Processing and any other relevant circumstances relating to the Processing of your Personal Data on ReelDx systems as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons in respect of such Personal Data, ReelDx shall implement appropriate technical and organizational measures to ensure security, confidentiality, integrity, availability and resilience of Processing systems and services involved in the Processing of your Personal Data that are appropriate to the risk. ReelDx will periodically (i) test, monitor, assess and evaluate the effectiveness of its safeguards, controls, systems and procedures and (ii) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of the Personal Data, and appropriately address these risks.ReelDx shall implement and document appropriate business continuity and disaster recovery plans to enable it to continue or resume providing the Service Offering (including restoring access to the Personal Data where applicable) in a timely manner after a disruptive event.ReelDx will periodically test and monitor the effectiveness of its business continuity and disaster recovery plans.ReelDx will provide a summary of its written business continuity and disaster recovery plans to you upon written request.

Additional Terms for EU Personal Data

Application of Model Clauses. The Model Clauses in Attachment 1 and the additional terms in this Section 8 will apply to the Processing of Personal Data by ReelDx in the course of providing the Service Offering:

The Model Clauses apply only to Personal Data that is transferred from the European Economic Area (EEA) to outside the EEA, either directly or via onward transfer, to any country or recipient: (i) not recognized by the European Commission as providing an adequate level of protection for personal data (as described in applicable Privacy Laws), and (ii) not otherwise subject to appropriate safeguards as recognized by applicable Privacy Laws, authorities or courts.

The Model Clauses apply to the legal entity that has executed the Model Clauses.

International Transfers. ReelDx is authorized, in connection with the provision of the Service Offering, or in the normal course of business, to make worldwide transfers of Personal Data to its Subprocessors.When making such transfers, ReelDx shall ensure appropriate protection is in place to safeguard the Personal Data transferred under or in connection with the ReelDx Agreement.Where the provision of Service Offering involves the transfer of Personal Data from the EEA to countries outside the EEA (which are not subject to an adequacy decision under Privacy Laws) such transfer shall be subject to the following requirements: (a) ReelDx has in place intra-group agreements with any affiliates which may have access to the Personal Data, which agreements shall incorporate the Model Clauses; and (b) ReelDx has in place agreements with its Subprocessors (other than its affiliates) that incorporate the Model Clauses, in both cases (a) and (b) or an alternative recognized compliance standard for the lawful transfer of Personal Data outside the EEA.

Subprocessors. You agree that ReelDx may appoint and use Subprocessors to process Personal Data in connection with the Service Offering provided that: (a) ReelDx puts in place a contract in writing with each Subprocessor that imposes obligations that are (i) relevant to the services to be provided by the Subprocessors and (ii) materially similar to the rights and/or obligations granted or imposed on ReelDx under this Addendum; and (b) where a Subprocessor fails to fulfil its data protection obligations as specified above, ReelDx shall be liable to the you for the performance of the Subprocessor’s obligations.ReelDx shall inform you of any intended changes concerning the addition or replacement of Subprocessors with respect to your Personal Data and give you an opportunity to object to such changes.

Privacy Impact Assessment (PIA) Clause.ReelDx shall provide reasonable cooperation and assistance to you, to the extent applicable, in relation to ReelDx’s Processing of the Personal Data and within the scope of the agreed Service Offering, in connection with any data protection impact assessment(s) which you may carry out in relation to the Processing of Personal Data to be undertaken by ReelDx, including any required prior consultation(s) with supervisory authorities.ReelDx reserves the right to charge you a reasonable fee for the provision of such cooperation and assistance.

Security Incidents.Where ReelDx has established that a Security Incident has occurred, ReelDx shall, where required by applicable Privacy Laws, notify you without undue delay and shall:

to the extent such information is known or available to ReelDx at the time, provide you with details of the Security Incident, a point of contact, and the measures taken or to be taken to address the Security Incident;

reasonably cooperate and assist you with any investigation into, and/or remediation of, the Security Incident (including, without limitation and where required by Privacy Laws, the provision of notices to regulators and affected individuals);

not inform any unaffiliated third party (other than another customer affected by the same Security Incident, a Subprocessor potentially possessing relevant information, or experts or consultants utilized by ReelDx) of any Security Incident relating to the Personal Data without first obtaining your prior written consent, except as otherwise required by applicable law.Nothing in this clause shall prevent ReelDx from notifying other customers whose personal data may be affected by the Security Incident;

in the event you intend to issue a notification regarding the Security Incident to a data protection supervisory authority, other regulator or law enforcement agency, you shall (unless prohibited by law) allow ReelDx to review the notification and you shall have proper consideration to any reasonable comments or amendments proposed by ReelDx.

Deletion of Personal Data.Upon termination of the Service Offering (for any reason) and if requested by you in writing, ReelDx shall, as soon as reasonably practicable and in accordance with applicable law, delete, or return to you, the Personal Data on ReelDx systems, provided that ReelDx may: (a) retain one copy of the Personal Data as necessary to comply with any legal, regulatory, judicial, audit or internal compliance requirements; and (b) defer the deletion of the Personal Data to the extent and for the duration that any Personal Data or copies thereof cannot reasonably and practically be expunged from ReelDx’s systems.For such retention or deferral periods as set out in subparagraphs (a) and (b) of this clause, the provisions of this Addendum shall continue to apply to such Personal Data.ReelDx reserves the right to charge you for any reasonable costs and expenses incurred by ReelDx in deleting or returning the Personal Data pursuant to this clause.

Demonstrating Compliance.ReelDx shall, upon reasonable prior written request from you (such request not to be made more frequently than once in any twelve-month period), provide to you such information or access as may be reasonably necessary under applicable law and in accordance with ReelDx’s security practices, to demonstrate ReelDx’s compliance with its obligations under this Addendum.ReelDx reserves the right to charge you a reasonable fee for the provision of such cooperation and assistance.

Liability and Costs.Neither ReelDx nor any Subprocessor shall be liable for any claim brought by you or any third party arising from any action or omission by ReelDx and/or Subprocessors to the extent such action or omission resulted from compliance with your instructions or approved security practices, policies and/or processes.

APPENDIX 1 - EU STANDARD CONTRACTUAL CLAUSES

These Clauses are attached to and made a part of the Data Processing Addendum between ReelDx and you.

For the purpose of EU Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the entity identified as “you” in the Addendum (the “data exporter”) and is ReelDx Software, Inc., 875 Howard Street, 5th Floor, San Francisco, CA 94103 (the “data importer”) each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

1.CLAUSE 1 DEFINITIONS. For the purposes of the Clauses:

‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

"the data exporter" shall mean the controller who transfers the personal data;

"the data importer" shall mean the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of these Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

"the sub-processor" means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

"the applicable data protection law" means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

"technical and organizational security measures" means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

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

CLAUSE 3 THIRD-PARTY BENEFICIARY CLAUSE

CLAUSE 4 OBLIGATIONS OF THE DATA EXPORTER. The data exporter agrees and warrants:

that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to these Clauses;

that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

that it will ensure compliance with the security measures;

that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

that it will ensure compliance with Clause 4(a) to (i).

CLAUSE 5 OBLIGATIONS OF THE DATA IMPORTER. The data importer agrees and warrants:

to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

that it will promptly notify the data exporter about:

any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

any accidental or unauthorized access; and

any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

that the processing services by the sub-processor will be carried out in accordance with Clause 11 (Sub-processing);

to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.

CLAUSE 6 LIABILITY

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

CLAUSE 7 MEDIATION AND JURISDICTION

The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;

to refer the dispute to the courts in the Member State in which the data exporter is established.

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

CLAUSE 8 COOPERATION WITH SUPERVISORY AUTHORITIES

The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).

CLAUSE 9 GOVERNING LAW. The Clauses shall be governed by the law of the Member State in which the data exporter is established.

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

CLAUSE 11 SUB-PROCESSING

The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.

The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

CLAUSE 12 OBLIGATION AFTER THE TERMINATION OF PERSONAL DATA-PROCESSING SERVICES

The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

The data importer and the sub-processor warrant that upon the request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.

APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES

These Clauses are attached to and made a part of the Data Protection Addendum between ReelDx and Provider. This Appendix forms part of the Clauses. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

DATA EXPORTER. The data exporter is identified at the start of the Clauses as “you”.

DATA IMPORTER. The data importer is ReelDx Software, Inc., a provider of web services.

DATA SUBJECTS. The personal data transferred may concern the following categories of data subjects:

CATEGORIES OF DATA. The data subjects’ personal data transferred may concern the following categories of data:

SPECIAL CATEGORIES OF DATA (IF APPROPRIATE). Personal data which reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union opinions, memberships or activities, social security files, and data concerning health (including physical or mental health or condition), sexual life and information regarding criminal offences or alleged offences and any related court proceedings and shall include special categories of data as defined in Article 8 of the Directive 95/46/EC and Article 9 of the GDPR 2016/679.

PROCESSING OPERATIONS. The personal data transferred may be subject to the following processing activities: Any operation with regard to personal data irrespective of the means applied and procedures, in particular the obtaining, collecting, recording, organizing, storage, holding, use, amendment, adaptation, alteration, disclosure, dissemination or otherwise making available, aligning, combining, retrieval, consultation, archiving, transmission, blocking, erasing, or destruction of data, the operation and maintenance of systems, management and management reporting, financial reporting, risk management, compliance, legal and audit functions and shall include “processing” which shall have the meaning given to such term in the Directive and the GDPR.ReelDx may modify processing instructions at any time in the future via an amendment to this DPA or in additional contracts.

APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

This Appendix forms part of the Clauses and must be completed and signed by the parties

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached)

Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data as set forth in Section 7 of the Data Protection Addendum.