Data Processing Addendum
This Data Processing Addendum (“Addendum”) supplements the agreement entered into by and between Customer (“Customer”) and HyTrust, Inc. (“HyTrust”) governing Customer’s use of HyTrust’s software and/or services (the “Agreement”) and applies to the extent that HyTrust processes Personal Data on behalf of Customer in the course of providing Services. Any terms not defined in this Addendum shall have the meaning set forth in the Agreement. In the event of a conflict between the terms and conditions of this Addendum and the Agreement, the terms and conditions of this Addendum shall supersede and control.
1.1 “Anonymous Data” means Personal Data that has been processed in such a manner that it can no longer be attributed to an identified or identifiable natural person.
1.2 “Authorized Employee” means an employee of HyTrust who has a need to know or otherwise access Personal Data to enable HyTrust to perform their obligations under this Addendum or the Agreement.
1.3 “Authorized Individual” means an Authorized Employee or Authorized Sub-processor.
1.4 “Authorized Sub-processor” means a third-party subcontractor, agent, reseller, or auditor who has a need to know or otherwise access Personal Data to enable HyTrust to perform its obligations under this Addendum or the Agreement, and who is authorized to do so under Section 4.2 of this Addendum.
1.5 “Data Subject” means an identified or identifiable natural person to whom Personal Data relates.
1.6 “Personal Data” means any information relating to Data Subject which HyTrust Processes on behalf of Customer other than Anonymous Data, and includes Sensitive Personal Information.
1.7 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise processed.
1.8 “Privacy Shield Principles” means the Swiss-U.S. and EU-U.S. Privacy Shield Framework and Principles issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework.
1.9 “Process” or “Processing” means any operation or set of operations which is performed upon the Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.
1.10 “Sensitive Personal Information” means a Data Subject’s (i) government-issued identification number (including social security number, driver’s license number or state-issued identification number); (ii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (iii) genetic and biometric data or data concerning health; or (iv) Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation or sexual activity, criminal convictions and offences (including commission of or proceedings for any offense committed or alleged to have been committed), or trade union membership.
1.11“Services” means services provided by HyTrust to Customer pursuant to the Agreement.
1.12 “Supervisory Authority” means an independent public authority which is established by a member state of the European Union, Iceland, Liechtenstein, or Norway.
2. Processing of Data
2.1 The rights and obligations of the Customer with respect to this Processing are described herein. Customer shall, in its use of the Services, at all times Process Personal Data, and provide instructions for the Processing of Personal Data, in compliance with EU Directive 95/46/EC (the “Directive”), and the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR” and together, “Data Protection Laws”)). Customer shall ensure that its instructions comply with all laws, rules and regulations applicable in relation to the Personal Data, and that the Processing of Personal Data in accordance with Customer’s instructions will not cause HyTrust to be in breach of the Data Protection Laws. Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to HyTrust by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to HyTrust regarding the Processing of such Personal Data. Customer shall not provide or make available to HyTrust any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify HyTrust from all claims and losses in connection therewith. This Addendum does not apply to Personal Data for which HyTrust is a Customer.
2.2 HyTrust shall Process Personal Data only (i) for the purposes set forth in the Agreement and/or Exhibit A, (ii) in accordance with the terms and conditions set forth in this Addendum and any other documented instructions provided by Customer, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by Supervisory Authority to which the HyTrust is subject; in such a case, the HyTrust shall inform the Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest and (iii) in compliance with the Data Protection Laws. Customer hereby instructs HyTrust to Process Personal Data in accordance with the foregoing and as part of any Processing initiated by Customer in its use of the Services.
2.3 The subject matter, nature, purpose, and duration of this Processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit Ato this Addendum.
2.4 Following completion of the Services, at Customer’s choice, HyTrust shall return or delete the Personal Data, except as required to be retained by the laws of the European Union or European Union member states.
3. Authorized Employees
3.1 HyTrust shall take commercially reasonable steps to ensure the reliability and appropriate training of any Authorized Employee.
3.2 HyTrust shall ensure that all Authorized Employees are made aware of the confidential nature of Personal Data and have executed confidentiality agreements that prevent them from disclosing or otherwise Processing, both during and after their engagement with HyTrust, any Personal Data except in accordance with their obligations in connection with the Services.
3.3 HyTrust shall take commercially reasonable steps to limit access to Personal Data to only Authorized Individuals.
4. Authorized Sub-processors
4.1 Customer acknowledges and agrees that HyTrust may (1) engage its affiliates and the Authorized Sub-processors listed in Exhibit C to this Addendum to access and Process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the Processing of Personal Data.
4.2 A list of HyTrust’s current Authorized Sub-processors (the “List”) is available at https://www.hytrust.com/legal/Sub-processors, which may be updated by HyTrust from time to time. The List will provide a mechanism to subscribe to notifications of new Authorized Sub-processors and Customer agrees to subscribe to such notifications. At least ten (10) days before enabling any third party other than Authorized Sub-processors to access or participate in the Processing of Personal Data, HyTrust will add such third party to the List. Customer may object to such an engagement in writing within ten (10) days of receipt of the aforementioned notice by Customer.
4.2.1 If Customer reasonably objects to an engagement in accordance with Section 4.2, HyTrust shall provide Customer with a written description of commercially reasonable alternative(s), if any, to such engagement, including without limitation modification to the Services. If HyTrust, in its sole discretion, cannot provide any such alternative(s), or if Customer does not agree to any such alternative(s) if provided, HyTrust may terminate this Addendum. Termination shall not relieve Customer of any fees owed to HyTrust under the Agreement.
4.2.2 If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by HyTrust, that third party will be deemed an Authorized Sub-processor for the purposes of this Addendum.
4.3 HyTrust shall ensure that all Authorized Sub-processors have executed agreements with confidentiality provisions that prevent them from disclosing or otherwise Processing, any Personal Data, both during and after their engagement with HyTrust.
4.4 HyTrust shall, by way of contract or other legal act under European Union or European Union member state law (including without limitation approved codes of conduct and standard contractual clauses), ensure that every Authorized Sub-processor is subject to obligations regarding the Processing of Personal Data that are no less protective than those to which the HyTrust is subject under this Addendum.
4.5 HyTrust shall remain responsible for its compliance with the obligations of this Addendum and for any acts and omissions of Authorized Sub-processors that cause HyTrust to breach any of HyTrust’s obligations under this Addendum.
5. Security of Personal Data
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, HyTrust shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of Processing Personal Data.
6. Transfers of Personal Data
6.1 Any transfer of Personal Data made subject to this Addendum from member states of the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of these countries shall, to the extent such transfer is subject to such laws and regulations, be undertaken by HyTrust in accordance with the Swiss-U.S. and EU-U.S. Privacy Shield Framework and Principles issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework(the “Privacy Shield Principles”).
6.2 HyTrust self-certifies to, and complies with, the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks, as administered by the U.S. Department of Commerce, and shall maintain such self-certification and compliance with respect to the Processing of Personal Data transferred from member states of the European Union, Iceland, Lichtenstein, Norway, or the United Kingdom (the “EEA”) or Switzerland to any countries which do not ensure an adequate level of data protection within the meaning of the laws and regulations of the foregoing countries for the duration of the Agreement.
7. Rights of Data Subjects
7.1 HyTrust shall, to the extent permitted by law, promptly notify Customer’s support contacts upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, restriction of Processing, erasure, data portability, restriction or cessation of Processing, withdrawal of consent to Processing, and/or objection to being subject to Processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If HyTrust receives a Data Subject Request in relation to Customer’s data, HyTrust will advise the Data Subject to submit their request to Customer’s support contacts and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services.
7.2 HyTrust shall, at the request of the Customer, and taking into account the nature of the Processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that(i) Customer is itself unable to respond without HyTrust’s assistance and (ii) HyTrust is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by HyTrust.
8. Actions and Access Requests
8.1 HyTrust shall, taking into account the nature of the Processing and the information available to HyTrust, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the GDPR to conduct a data protection impact assessment and/or to demonstrate such compliance, provided thatCustomer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by HyTrust.
8.2 HyTrust shall, taking into account the nature of the Processing and the information available to HyTrust, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority, where necessary and where required by the GDPR. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by HyTrust.
8.3 HyTrust shall maintain records sufficient to demonstrate its compliance with its obligations under this Addendum, and retain such records as required by applicable law. Customer shall, with reasonable notice to HyTrust, have the right to review, audit and copy such records at HyTrust’s offices during regular business hours.
8.4 Upon Customer’s request, HyTrust shall, no more than once per calendar year, either (i) make available for Customer’s review all information necessary to demonstrate compliance with the obligations laid down in this Addendum ,or (ii) if the provision of information pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer or its authorized representative, upon reasonable notice and at a mutually agreeable date and time, to conduct an audit or inspection of HyTrust’s data security infrastructure and procedures that is sufficient to demonstrate HyTrust’s compliance with its obligations under this Addendum, provided that Customer shall provide reasonable prior notice of any such request for an audit and such inspection shall not be unreasonably disruptive to HyTrust’s business. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to HyTrust for any time expended for on-site audits.
8.5 HyTrust shall immediately notify Customer if an instruction, in the HyTrust’s opinion, infringes the Data Protection Laws or Supervisory Authority.
8.6 In the event of a Personal Data Breach, HyTrust shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as HyTrust in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within HyTrust’s reasonable control).
8.7 In the event of a Personal Data Breach, HyTrust shall, taking into account the nature of the Processing and the information available to HyTrust, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the GDPR with respect to notifying (i) the relevant Supervisory Authority and (ii) Data Subjects affected by such Personal Data Breach without undue delay.
8.8 The obligations described in Sections 8.5 and 8.6 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. HyTrust’s obligation to report or respond to a Personal Data Breach under Sections 8.5 and 8.6 will not be construed as an acknowledgement by HyTrust of any fault or liability with respect to the Personal Data Breach.
9. Limitation of Liability
9.1 The total liability of each of Customer and HyTrust (and their respective employees, directors, officers, affiliates, successors, and assigns), arising out of or related to this Addendum, whether in contract, tort, or other theory of liability, shall not, when taken together in the aggregate, exceed the limitation of liability set forth in the Agreement.
Details of Processing
Nature and Purpose of Processing: HyTrust will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Customer in its use of the Services.
Duration of Processing: HyTrust will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.
Categories of Data Subjects: Customer employees and agents
Type of Personal Data: Contact information (Name, title, telephone number, mobile phone number, email address, fax number, address data)