Data Protection Addendum
[January 2020 - https://www.egnyte.com/january-2020/data-protection-addendum]
To account for recent changes in applicable law/regulations and to further enhance Egnyte’s commitments to its customers, Egnyte has upgraded its DPA, as set forth below. Any customer with an agreement that includes an older version of Egnyte's DPA shall automatically be upgraded to the below DPA. Customers interested in having a prior DPA continue to govern should reach out to Egnyte via email to email@example.com.
Updated December 2020:
“Data Protection Authorities (DPAs)” means independent public supervisory authorities established under GDPR and United States Data Protection Laws and Regulations.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, and the United Kingdom, to which Egnyte is bound in relation to its processing of Personal Data under the Agreement.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any Customer Content relating to an identified or identifiable natural person under applicable Data Protection Laws and Regulations.
“Security Breach” means the actual or suspected unauthorized acquisition, destruction, loss, misappropriation or access to, disclosure, use, or modification of the Customer Content while stored by Egnyte. A Security Breach does not include any of those events occurring due to Customer or User actions or inactions, such as a failure to adequately protect Account access information, or the transfer of Content by Customer or a User to a third party outside of Egnyte’s network, etc.
B. DATA PROCESSING
The parties acknowledge and agree that Customer is the “Controller” and Egnyte is the “Processor” with regard to the processing of Personal Data, and Egnyte agrees to:
- comply with its obligations under applicable Data Protection Laws and Regulations, as well as the confidentiality and data security provisions of this Agreement;
- only process the Personal Data for the limited purposes of performing its obligations as a data processor under this Agreement;
- process the Personal Data only in accordance with Customer's documented instructions (from time to time) and shall procure that any Egnyte personnel or other person acting under the authority of Egnyte does the same;
- assist Customer in fulfilling its obligations to respond to requests for exercising the User’s (“data subject’s”) rights under GDPR, including by implementing appropriate technical and organisational measures to enable such assistance. To the extent legally permitted, Customer shall be solely responsible for any costs arising from Egnyte’s provision of such assistance;
- promptly provide to Customer such assistance as the Customer may from time to time reasonably require to enable it to comply with its security, breach notification, impact assessment, prior consultation, record keeping and DPA cooperation responsibilities under GDPR, including assistance with Customer-initiated audits as strictly necessary to verify compliance pursuant to Article 28(3)(h), which shall not be conducted more than once annually and shall not compromise the confidentiality or security of Egnyte’s operations or systems, including the data of other Egnyte customers;
- allow for and contribute to audits and inspections conducted by DPAs having proper legal authority over Egnyte’s Services’ infrastructure;
- only store and process Content, including Personal Data, within the EEA for Customers who have notified Egnyte of this requirement in writing prior to implementation of the Services;
- maintain a record of all categories of processing activities carried out on behalf of a Customer, in accordance with GDPR;
- notify Customer of any communication, including complaints, received from Users pertaining to the privacy or security of their Personal Data; and
- purge all Content following termination of the Agreement as set forth in the termination provisions of the Agreement.
Customer shall, in its use of the Services, only submit (and ensure that Users submit) instructions to Egnyte that comply with applicable Data Protection Laws and Regulations. Customer and its Users shall have sole responsibility for the accuracy, quality, and legality of the Personal Data and the means by which they acquired Personal Data.
C. PERSONAL DATA TRANSFERS FROM EUROPE TO THE UNITED STATES
With respect to any Egnyte restricted transfers of Personal Data from the EU, EEA, or UK to Egnyte’s facilities in the United States (per the requests of Customer or Users) requiring the use of an approved transfer mechanism, up until July 2020, Egnyte utilized the EU-U.S. Privacy Shield Framework self-certification for such purpose. While Egnyte remains committed to handling all such Personal Data in accordance with such framework, in light of the fact that, in July 2020, the Court of Justice of the European Union invalidated the EU-Privacy Shield Framework, and until such time as a new Privacy Shield framework is secured that is deemed adequate by the European Union, Egnyte (and Customer) is committed to complying with the Standard Contractual Clauses (“SCCs”) attached as an Annex to this Data Protection Addendum. In the event of any conflict between the SCCs and Privacy Shield, the SCCs shall govern.
Egnyte may subcontract portions of the Services, provided that Egnyte shall remain the primary provider of the Services and is responsible for all such subcontracted obligations under the Agreement. If Customer is located within the EEA or has Users based in the EEA, prior to Egnyte engaging a new subcontractor during the Subscription Term that will assist in the processing of Personal Data under the Agreement, Egnyte shall provide Customer with advance notice of the engagement of the subcontractor and an opportunity to object thereto. If Customer objects on reasonable grounds to the engagement of the new subcontractor, the parties will discuss in good faith the possible options for resolving the objection. Egnyte will ensure that any sub-processor agreement at least contain the same data protection obligations as set out in this Agreement.
A current list of Egnyte subcontractors/subprocessors may be found at the following link: https://www.egnyte.com/subcontractors.
E. INFORMATION SECURITY PROCEDURES
- General Description of Egnyte’s Information Security Program. Egnyte’s information security program is designed to:
- ensure the security, integrity and confidentiality of Customer Content (which includes Personal Data), including by implementing appropriate technical and organisational measures;
- protect against anticipated threats or hazards to the security or integrity of Customer Content;
- protect against unauthorized access to or use of the Customer Content that could result in substantial harm or inconvenience to the person that is the subject of the Customer Content; and
- ensure the proper disposal of Customer Content.
- General Procedures.
- Data Storage. Egnyte stores Customer Content on secure computers located in a physically secure and controlled data center environment. Egnyte employs technologies that are consistent with industry standards for firewalls and other security technologies to prevent Egnyte computers from being accessed by unauthorized persons. All data is encrypted at rest with AES-256 bit encryption keys.
- Data Transfers. Egnyte uses HTTPS standards to protect data integrity during transfers. In addition, subject to Section 2.a above, Egnyte will maintain at least the following security measures:
- HTTP with SSL 256-bit encryption (HTTPS); and
- encrypted passwords for the Services.
- Security and Data Protection Impact Assessments.If requested by Customer, Egnyte will cooperate with Customer in an initial security assessment, including the completion of a risk assessment questionnaire. In addition, Egnyte will provide Customer with available and relevant SSAE18-related reports from the third party data center providers utilized in the provision of the Services, as well as with the results of the penetration testing which Egnyte has periodically performed by qualified third party security consultants.
Upon Customer’s written request and provided that i. Customer does not have access to the necessary information and ii. such information is within Egnyte’s possession (that is, without Egnyte having to expend more than nominal efforts to generate the information), Egnyte shall provide Customer with the information it possesses that is needed to fulfill Customer’s obligation under GDPR to carry out a data protection impact assessment related to Customer’s use of the Services. To the extent required under GDPR, Egnyte will provide additional, reasonable cooperation to Customer in its prior consultation with a Data Protection Authority regarding the data protection impact assessment.
All such information provided by Egnyte hereunder shall be considered the Confidential Information of Egnyte and held in confidence in accordance with the terms of the Agreement.
- Network and Physical Security Requirements.
- Basic Security Requirements. In addition to Section 2.a above, Egnyte will:
- maintain a working, tuned network firewall to protect Customer Content;
- regularly install security patches on the Services network;
- ensure authentication to the Services’ network web front-end is encrypted;
- where applicable, use and regularly update malware prevention tools;
- maintain a credential management process, which includes assigning a unique ID to each person with computer access and requiring periodic password changes;
- track access to systems, and generate and store audit trail and logs to help identify malicious activity;
- regularly test efficiency and health of security controls, systems and processes;
- maintain a policy that addresses information security for employees and representatives;
- restrict physical access to systems containing Customer Content;
- restrict remote access to the network / devices and employ secure remote access controls to verify the identity of users connecting to the Services; and
- protect backups from unauthorized access during transit and storage.
- Encryption. Egnyte will use cryptographic algorithms that have been published and evaluated by the general cryptographic community with sufficient strength to equate to 256-bit or better.
- Basic Security Requirements. In addition to Section 2.a above, Egnyte will:
- Security Breach.
- Notification of Security Breach. Egnyte will notify Customer in accordance with applicable law of any actual or suspected Security Breach of any Customer Content immediately following discovery of a Security Breach, and provide Customer with a detailed description of the breach. Furthermore, Egnyte, without undue delay, shall notify Customer of any breach of data security that results in a breach of confidentiality of Personal Data known by Egnyte to be within its control, and the parties shall cooperate in determining the appropriate measures to be taken to address such a breach. Additionally, Egnyte shall ensure that its representatives handling Customer’s Personal Data shall be bound by confidentiality provisions no less strict than those of this Agreement. To the extent that User notification of an actual or suspected Security Breach is legally required or is desired by Customer, Egnyte will notify Customer’s administrator and Customer shall notify all other Users of the breach.
- Investigation of Security Breach. Egnyte will:
- promptly investigate each Security Breach;
- take all reasonable steps necessary to limit, stop or otherwise remedy the Security Breach;
- promptly implement appropriate internal technical and procedural controls to reduce the likelihood of a recurrence of a Security Breach; and
- provide Customer with documentation detailing the controls implemented.
In addition, in the event of a Security Breach, Customer will have the right to conduct on-premises investigations at the third party data centers utilized by Egnyte in the provision of the Services, subject to the internal rules and processes of such data centers and only as reasonably necessary to investigate the breach.
- Backup and Business Continuity. Egnyte maintains a business continuity program, including a recovery plan, sufficient to ensure Egnyte can continue to function through an operational interruption and continue to provide Services to Customer. The program provides a framework and methodology, including a business impact analysis and risk assessment process, necessary to identify and prioritize critical business functions. In the event Egnyte experiences an event requiring recovery of systems, information or services, the recovery plan will be executed promptly. Egnyte continuously enhances the Services’ security and availability of its multi-tenant enterprise class cloud infrastructure. Egnyte maintains multiple copies of Customer’s Content across two data centers at all times to ensure availability and redundancy.
- Egnyte Encryption Key Management. Egnyte uses the Egnyte Object Store to encrypt all Customer Content “at rest” in the Services, as follows:
- The Egnyte Object Store uses an AES-256 bit symmetric key algorithm to generate the Customer encryption key. The key is (i) generated per Egnyte domain, (ii) generated at the time the Customer Egnyte domain is created, (iii) unique to each Customer Egnyte domain, and (iv) stored in a secure key vault. This secure key vault is protected by the access control policy set in Egnyte’s information security documentation regarding ISO27001 (or comparable) compliance.
- Customer may choose to use its own encryption key management by integrating with an Egnyte supported Hardware Security Module (HSM) solution.
ANNEX: STANDARD CONTRACTUAL CLAUSES
Name of the data exporting organisation: the entity stated as the Customer in the Agreement, whose details shall be deemed incorporated into these Clauses (the "data exporter")
Name of the data importing organisation: Egnyte, Inc., located at 1350 W. Middlefield Road, Mountain View, CA 94043 (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
The data exporter has entered into a contract for the provision of services with the data importer ("Contract"). Pursuant to the terms of the Contract, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the data exporter agrees to the provision of such services, including the processing of personal data incidental thereto, subject to the parties' compliance with the terms of these Clauses. The Clauses shall be deemed executed by the parties by the execution of the Contract, and shall be deemed incorporated into the Contract.
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' means the controller who transfers the personal data;
- 'the data importer' means 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 the Clauses;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor 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 organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
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.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
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 organisational security measures specified in Appendix 2 to this contract;
- 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, unauthorised 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;
- to forward any notification received from the data importer or any subprocessor 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 subprocessing 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 subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor 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).
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 organisational 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 unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised 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 subprocessing, 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 subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor 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 subprocessor 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 subprocessor agrees that the data subject may issue a claim against the data subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses
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.
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 subprocessor, 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 subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
Th The Clauses shall be governed by the law of the Member State in which the data exporter is established.
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 Clause.
- 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 subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor 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 subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the subprocessor 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 subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing 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 subprocessing 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.
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 subprocessor 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 subprocessor warrant that upon 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
The data exporter is the Customer, the recipient of Services as defined in the Contract.
The data importer is Egnyte, Inc., the provider of the Services to the Customer as further described in the Contract.
The personal data transferred concern the following categories of data subjects:
Users under the Contract
Categories of data
The personal data transferred concern the following categories of data:
Customer data and Content provided by Customer under the Contract. For clarity, Egnyte does not access Content via its Services.
Special categories of data (if appropriate)
Subject to Customer Content
The personal data transferred will be subject to the following basic processing activities:
Nature and purpose of processing: The nature and purpose of the processing of the personal data are set out in the Contract and for the purpose of providing the Services.
Duration and subject matter of processing: The subject matter and duration of the processing of the personal data are set out in the Contract.
Data exporter's instructions: Data importer will only act upon data exporter’s instructions as further described in the Contract.
Customer Data Deletion or Return: Upon expiration or termination of the data exporter's use of the Services, the data importer will delete or return the Customer Data in accordance with the terms
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(c) and 5(c):
- Security measures are as described in the Contract, including the DPA to which these Standard Contractual Clauses are attached.