February 17, 2022
Data Sharing Agreement
This Snyk Data Sharing Agreement and its Schedules (“DSA”) reflects the parties’ agreement in relation to the Processing of Personal Data by Snyk Limited and its affiliates (collectively, “us”) and you (“Counterparty”) (together “the parties”) in connection with the services being provided by you to us (“Services”) under one or more agreements for services (each a “Services Agreement”) between the parties.
This DSA is in addition to the Services which you will provide us under the Agreement and is effective upon the effective date as stated in the Services Agreement. If any of the terms of this DSA conflict or are inconsistent with those in the Services Agreement, this DSA will take precedence over the terms of the Services Agreement.
We may update the terms of this DSA from time to time, so you should check this webpage periodically for any changes. We will indicate on this webpage when the terms were last modified.
The term of this DSA will be the same as the term of the Services Agreement. Terms not defined in this DSA will have the same meaning that is stated in the Services Agreement.
(A) For the purposes of providing the Services to Snyk, you may have access to, or be provided with, or provide Snyk with Personal Data (as defined below) in relation to which each is subject to certain obligations.
(B) Snyk will act as Controller of the Personal Data, and this DSA sets out the terms of the provision of the Personal Data and how it may be used.
(C) Counterparty will act as a Controller or Processor, depending on the processing activities and purpose of processing. Services Agreement indicates Counterparty’s position in relation to the Services and the processing activities being conducted.
Definitions and Interpretation
1.1 In this DSA:
(a) “CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 999.300 to 999.337), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including personal information, service provider, and business purposes, carry the same meaning in this DSA.
(b) “Contracted Business Purposes” means the services described in the Services Agreement for which the Counterparty receives or accesses personal information.
(c) “Snyk” means Snyk Limited of Highlands House, Basingstoke Road, Spencers Wood, Reading, Berkshire, RG7 1NT United Kingdom and its affiliates;
(d) “Counterparty” means the other party to the Services Agreement;
(e) "Controller", "Data Subject", "Personal Data", "Process/Processing", "Processor", and “adequacy decision” shall have the same meanings as in the GDPR;
(f) “Transfer Clauses" means: (i) the Standard Contractual Clauses approved by EC Commission Decision of 27 December 2004, as may be amended from time to time, for the transfer of Personal Data from the European Economic Area (“EEA”) to a third party country, as set out in Schedule 1 of this DSA; and (ii) the the Standard Contractual Clauses approved by EC Commission Decision of 5 February 2010, as may be amended from time to time, for the transfer of Personal Data from the EEA to a third party country, as set out in Schedule 2 of this DSA;
(g) "Data Protection Laws" means any applicable law or regulation relating to the protection of personal data or the privacy of individuals, each as amended, including but not limited to the GDPR, legislation implementing the requirements of the GDPR in each EU Member State and the California Consumer Privacy Act of 2018.; and
(h) "GDPR" means European Union Regulation (EU) 2016/679.1.2 References to the singular include the plural and vice versa.
1.3 Any words following the words "include", "includes", "including", "in particular" or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
When Counterparty is Controller the following will apply:
Compliance with Applicable Laws
2.1 Both parties will comply with the Data Protection Laws in the collection and processing of Personal Data they collect themselves or receive from the other party pursuant to this DSA.
2.2 The parties acknowledge and agree that neither of them will act as a data processor on behalf of the other, and that they are each responsible for meeting their respective compliance obligations under the Data Protection Laws.
Counterparty Warranties
3.1 Counterparty warrants that:
(a) it will provide a privacy notice to all Data Subjects in compliance with all applicable Data Protection Laws within 14 days of receiving the Personal Data from Snyk; and
(b) it will respond promptly to all enquiries from Snyk or from Data Subjects relating to the Personal Data, and in particular shall action all requests from Data Subjects to exercise their rights under Data Protection Laws on request from either the relevant Data Subject or from Snyk.
When Counterparty is Processor the following will apply:
4.1 As our processor, you agree to:
(a) only process Personal Data in accordance with this DSA and our instructions;
(b) promptly and without undue delay inform us if any instructions we provide infringe Data Protection Laws;
(c) implement appropriate technical and organisational measures, to ensure a level of security appropriate to the risks presented by the processing, such as protection against accidental or unlawful destruction, loss, alteration or unauthorised disclosure of, or access to, Personal Data;
(d) only allow your employees, agents or subcontractors (“Personnel”) access to personal data as required to perform the Services and ensure Personnel are under obligations of confidentiality;
(e) promptly notify us of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data in your possession or under your control;
(f) provide us with reasonable assistance in respect of a security breach and all information in your possession concerning the security breach;
(g) assist us, when reasonably requested, in relation to data protection impact assessments, responses to data subjects’ requests to exercise their rights under GDPR and engagement with supervisory authorities; and
(h) maintain records of your processing activities as required by Article 30.2 of the GDPR and make such records available to the applicable supervisory authority upon request.
5.1 Furthermore, you shall act as a Service Provider under the CCPA, and as such, shall:
(a) only collect, use, retain, or disclose personal information for the Contracted Business Purposes for which Customer provides or permits personal information access in accordance with the Services Agreement;
(b) not collect, use, retain, disclose, sell, or otherwise make personal information available for its own commercial purposes or in a way that does not comply with the CCPA. If a law requires Counterparty to disclose personal information for a purpose unrelated to the Contracted Business Purpose, the Counterparty must first inform the Snyk of the legal requirement and give the Snyk an opportunity to object or challenge the requirement, unless the law prohibits such notice;
(c) limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose;
(d) promptly comply with any Snyk request or instruction requiring Counterparty to provide, amend, transfer, or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing;
(e) If Contracted Business Purposes require the collection of personal information from individuals on Snyk’s behalf, Counterparty will always provide a CCPA-compliant notice at collection that Snyk specifically pre-approves in writing. Counterparty will not modify or alter the notice in any way without the Snyk’s prior written consent;
5.2 We agree to your use of approved sub-processors when processing Personal Data. You shall require your sub-processors, and any future sub-processors, to comply with terms that are substantially similar to those imposed on you in this DSA, and you shall be liable for any acts, errors or omissions of a sub-processor.
5.3 You may authorise new sub-processors, provided that you have given not less than 14 days’ prior written notice of such changes. We may object to any future sub-processors on reasonable data protection grounds before such change takes effect and, if both parties are unable to reach a solution to the objection within a reasonable amount of time, we may terminate the Services Agreement without penalty.
6.1 We may exercise our right of audit under Data Protections laws in the following ways:
(a) You agree to allow for and provide us reasonable assistance with audits conducted by us or a third-party we instruct, in relation to your compliance with Data Protection Laws while processing Personal Data. We will notify you in writing 30 days’ in advance of an audit, unless we reasonably believe a security breach has or will occur, or if you are in breach of your obligations under this DSA. You agree to provide us and/or our representatives with reasonable assistance to conduct such audits.
(b) We may exercise our right of audit under Data Protection Laws by requesting you to provide an audit report or certification not older than 12 months by an independent external auditor, demonstrating that your technical and organisational measures are in accordance with regulatory standards.
For all Parties:
7. International Transfers of Personal Data
7.1 Where Personal Data originating from within the European Economic Area (the "EEA") or otherwise subject to the EU General Data Protection Regulation by Snyk shall be processed by Counterparty outside the EEA without a current adequacy decision (an “Adequate Country”), Counterparty agrees to comply with the Transfer Clauses, whereby Snyk will be regarded as the Data Exporter and Counterparty will be regarded as the Data Importer.
7.2 In the event of inconsistencies between the provisions of the Transfer Clauses and this DSA or other agreements between the parties, the Transfer Clauses shall take precedence. The terms of this DSA shall not vary the Transfer Clauses in any way, and the Transfer Clauses may only be varied or terminated as specifically set out therein.
8. In addition to entering into the Transfer Clauses, Counterparty shall:
(a) implement all necessary technical measures to safeguard the transfer of Personal Data, including, where necessary, end-to-end encryption and pseudonymisation;
(b) disclose to Snyk any surveillance laws which Counterparty is subject to and, to the extent possible under applicable law, regulation or contractual obligations, any requests for Personal Data from public authorities Counterparty has received to date, whether or not they relate to Snyk’s Personal Data;
(c) notify Snyk in writing if Counterparty is no longer able to comply with its contractual commitments under this DSA and before any disclosures of Personal Data are made;
(d) in the event that Counterparty becomes subject to a request from a public authority to disclose any of Snyk’s Personal Data, Counterparty agrees to review the legality of such a request and, if Counterparty concludes there are grounds under domestic law to do so, challenge the order. To the extent legally possible, Counterparty shall notify Snyk of any request from a public authority without undue delay and at least within 72 hours from receiving it, in writing;
(e) after reviewing the legality of such a request, if Counterparty has ascertained that it remains legally compelled to disclose Personal Data, Counterparty shall:
i. only disclose the minimum amount of Personal Data required; and
ii. retain evidence (such as audit logs) that any disclosure of Personal Data to public authorities was made in accordance with the restrictions under this DSA, and shall be made available to Snyk upon request without undue delay; and
(f) not voluntarily disclose any Personal Data to any public authority without first obtaining Snyk’s prior written consent, to the extent legally possible.
9. Both parties acknowledge that a revised version of the Transfer Clauses (“Revised SCCs”) has been published by the European Commission and are in draft form at the time of signature of the Services Agreement. At the point at which the Revised SCCs are finalised and approved for use by the European Commission, both parties agree to enter into the Revised SCCs.
10. In the event that the Transfer Clauses are amended replaced or repealed by the European Commission, or under applicable law, other than as described in 8.2, Snyk will provide any updated version of the Transfer Clauses on this webpage or another solution to enable a transfer of Personal Data to be conducted in compliance with Data Protection Laws.
11. Miscellaneous
11.1 If any provision of this DSA is judged by any court of a competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this DSA will otherwise remain in full force and effect.
11.2 Snyk may amend this DSA (except for the substantive provisions of the Transfer Clauses) and any amendments to this DSA will be posted on this webpage https://snyk.io/procurement/data-sharing-amendments/.
SCHEDULE 1: Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Between
Snyk Limited of Highlands House, Basingstoke Road, Spencers Wood, Reading, Berkshire, RG7 1NT United Kingdom (hereinafter “data exporter”)
and
Counterparty, as defined in the Services Agreement (hereinafter “data importer”)
each a “party”; together “the parties”.
Definitions
For the purposes of the clauses:
a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
b) “the data exporter” shall mean the controller who transfers the personal data;
c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
h) It will process the personal data, at its option, in accordance with:
i. the data protection laws of the country in which the data exporter is established, or
ii. the relevant provisions1 of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data2, or
iii. the data processing principles set forth in Annex A.
Data importer to indicate which option it selects:
Initials of data importer: Counterparty;
i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
i. the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
ii. the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
iii. data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
iv. with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
VI. Termination
a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
b) In the event that:
i. the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
ii. compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
iii. the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
iv. a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
v. a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
1 “Relevant provisions” means those provisions of any authorisation or decision except for the enforcement provisions of any authorisation or decision (which shall be governed by these clauses).
2 However, the provisions of Annex A.5 concerning rights of access, rectification, deletion and objection must be applied when this option is chosen and take precedence over any comparable provisions of the Commission Decision selected.
SCHEDULE 1: ANNEX A - DATA PROCESSING PRINCIPLES
Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
a) i. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.or
b) where otherwise provided by the law of the data exporter.
SCHEDULE 1: ANNEX B - DESCRIPTION OF THE TRANSFER
Data subjects
The personal data transferred concern the following categories of data subjects: As set-out in the relevant Services Agreement
Purposes of the transfer(s)
The transfer is made for the following purposes: As set-out in the relevant Services Agreement
Categories of data
The personal data transferred concern the following categories of data: As set-out in the relevant Services Agreement
Recipients
The personal data transferred may be disclosed only to the following recipients or categories of recipients: As set-out in the relevant Services Agreement
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data: As set-out in the relevant Services Agreement
Data protection registration information of data exporter (where applicable): As set-out in the relevant Services Agreement
Additional useful information (storage limits and other relevant information): As set-out in the relevant Services Agreement
Contact points for data protection enquiries: Privacy@snyk.io
SCHEDULE 2: Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement
Between
Snyk Limited of Highlands House, Basingstoke Road, Spencers Wood, Reading, Berkshire, RG7 1NT United Kingdom (hereinafter “data exporter”)
and
Counterparty, as defined in the Services Agreement (hereinafter “data importer”)
each a “party”; together “the parties”.
Definitions
For the purposes of the clauses:
a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
b) “the data exporter” shall mean the controller who transfers the personal data;
c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
h) It will process the personal data, at its option, in accordance with:
i. the data protection laws of the country in which the data exporter is established, or
ii. the relevant provisions3 of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data4, or
iii. the data processing principles set forth in Annex A.
Data importer to indicate which option it selects:
Initials of data importer: Counterparty
i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
i. the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
ii. the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
iii. data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
iv. with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
VI. Termination
a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
b) In the event that:
i. the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
ii. compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
iii. the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
iv. a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
v. a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
c) Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
VIII. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
3 “Relevant provisions” means those provisions of any authorisation or decision except for the enforcement provisions of any authorisation or decision (which shall be governed by these clauses).
4 However, the provisions of Annex A.5 concerning rights of access, rectification, deletion and objection must be applied when this option is chosen and take precedence over any comparable provisions of the Commission Decision selected.
SCHEDULE 2: ANNEX A
DATA PROCESSING PRINCIPLES
Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
a) i. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
ii. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.or
b) where otherwise provided by the law of the data exporter.
SCHEDULE 2: ANNEX B - DESCRIPTION OF THE TRANSFER
Data subjects
As set-out in the relevant Services Agreement
Purposes of the transfer(s)
The transfer is made for the following purposes: As set-out in the relevant Services Agreement
Categories of data
As set-out in the relevant Services Agreement
Recipients
As set-out in the relevant Services Agreement
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data: As set-out in the relevant Services Agreement
Data protection registration information of data exporter (where applicable): As set-out in the relevant Services Agreement
Additional useful information (storage limits and other relevant information): As set-out in the relevant Services AgreementContact points for data protection enquiries: Privacy@snyk.io
