Data Processing Addendum (DPA)

This Data Processing Addendum (including its Exhibits) (“Addendum”) forms part of and is subject to the terms and conditions of the principal agreement where ThreatDown provides services to Company (the “Agreement”) by and between you (“Company”); and “ThreatDown” as defined in the Agreement (“Service Provider”). This Addendum shall not be used with, and does not apply to, customers who are natural persons using the Services in the course of a purely personal or family activity (cf. Art. 2(2)(c) GDPR).

1. Subject Matter and Duration.
a) Subject Matter. This Addendum reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Company Personal Data in connection with Service Provider’s execution of the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum or any of its Exhibits conflicts with the Agreement, this Addendum shall control.
b) Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement or upon the date that the parties sign this Addendum if it is completed after the effective date of the Agreement. Service Provider will Process Company Personal Data until the relationship terminates as specified in the Agreement.

2. Subject Matter and Duration.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
a) “Company Personal Data” means Personal Data Processed by Service Provider on behalf of Company.
b) “Data Protection Laws” means the applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Company Personal Data are subject. “Data Protection Laws” may include, but are not limited to, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act) (“CCPA”); the Colorado Privacy Act; the Connecticut Data Privacy Act; the EU General Data Protection Regulation 2016/679 (“GDPR”) and its respective national implementing legislations; the Swiss Federal Act on Data Protection; the United Kingdom General Data Protection Regulation; the United Kingdom Data Protection Act 2018; the Utah Consumer Privacy Act; and the Virginia Consumer Data Protection Act (in each case, as amended, adopted, or superseded from time to time).
c) “Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws.
d) “Principles” means the EU-U.S. Data Privacy Framework Principles, the Swiss-U.S. DPF Principles, and UK Extension to the EU-U.S. Data Privacy Framework Principles, in each case, including the Supplemental Principles.
e) “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
f) “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Company Personal Data attributable to Service Provider.
g) “Services” means the services that Service Provider performs under the Agreement.
h) “Standard Contractual Clauses” the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.
i) “Subprocessor(s)” means Service Provider’s authorized vendors and third-party service providers that Process Company Personal Data.

3. Processing Terms for Company Personal Data.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
a) Documented Instructions. Service Provider shall Process Company Personal Data to provide the Services in accordance with the Agreement, this Addendum, any applicable Statement of Work, and any instructions agreed upon by the parties. Service Provider will, unless legally prohibited from doing so, inform Company in writing if it reasonably believes that there is a conflict between Company’s instructions and applicable law or otherwise seeks to Process Company Personal Data in a manner that is inconsistent with Company’s instructions.
Authorization to Use Subprocessors. To the extent necessary to fulfill Service Provider’s contractual obligations under the Agreement, Company hereby authorizes Service Provider to engage Subprocessors.
b) Authorization to Use Subprocessors. To the extent necessary to fulfill Service Provider’s contractual obligations under the Agreement, Company hereby authorizes Service Provider to engage Subprocessors.
c) Service Provider and Subprocessor Compliance. Service Provider shall (i) enter into a written agreement with Subprocessors regarding such Subprocessors’ Processing of Company Personal Data that imposes on such Subprocessors data protection requirements for Company Personal Data that are consistent with this Addendum; and (ii) remain responsible to Company for Service Provider’s Subprocessors’ failure to perform their obligations with respect to the Processing of Company Personal Data.
d) Right to Object to Subprocessors. Where required by Data Protection Laws, Service Provider will maintain a list of current Subprocessors on its website (currently available at: www.threatdown.com/legal/subprocessors). Company shall sign up on such website to receive notifications of Subprocessor changes. Service Provider shall notify Company by updating the website prior to engaging any new Subprocessors that Process Company Personal Data and allow Company ten (10) days to object from the date website is updated. If Company has legitimate objections to the appointment of any new Subprocessor, the parties will work together in good faith to resolve the grounds for the objection.
e) Confidentiality. Any person authorized to Process Company Personal Data must be subject to a duty of confidentiality, contractually agree to maintain the confidentiality of such information, or be under an appropriate statutory obligation of confidentiality.
f) Personal Data Inquiries and Requests. Where required by Data Protection Laws, Service Provider agrees to provide reasonable assistance and comply with reasonable instructions from Company related to any requests from individuals exercising their rights in Company Personal Data granted to them under Data Protection Laws.
g) Data Protection Assessment, Data Protection Impact Assessment, and Prior Consultation. Where required by Data Protection Laws, Service Provider agrees to provide reasonable assistance and information at Company’s expense to Company where, in Company’s judgement, the type of Processing performed by Service Provider requires a data protection assessment, data protection impact assessment, and/or prior consultation with the relevant data protection authorities.
h) Demonstrable Compliance. Service Provider agrees to provide information reasonably necessary to demonstrate compliance with this Addendum upon Company’s reasonable request.
i) Service Optimization. Where permitted by Data Protection Laws, Service Provider may Process Company Personal Data: (i) for its internal uses to build or improve the quality of its services; (ii) to detect Security Incidents; and (iii) to protect against fraudulent or illegal activity.
j) Aggregation and De-Identification. Service Provider may: (i) compile aggregated and/or de-identified information in connection with providing the Services provided that such information cannot reasonably be used to identify Company or any data subject to whom Company Personal Data relates (“Aggregated and/or De-Identified Data”); and (ii) use Aggregated and/or De-Identified Data for its lawful business purposes.
k) California Specific Terms. To the extent that Service Provider’s Processing of Company Personal Data is subject to the CCPA, this Section 3(k) will also apply. Company discloses or otherwise makes available Company Personal Data to Service Provider for the limited and specific purpose of Service Provider providing the Services to Company in accordance with the Agreement and this Addendum. Service Provider shall: (i) comply with its applicable obligations under the CCPA; (ii) provide the same level of protection as required under the CCPA; (iii) notify Company if it can no longer meet its obligations under the CCPA; (iv) not “sell” or “share” (as such terms are defined by the CCPA) Company Personal Data; (v) not retain, use, or disclose Company Personal Data for any purpose (including any commercial purpose) other than to provide the Services under the Agreement or as otherwise permitted under the CCPA; (vi) unless otherwise permitted by the CCPA, not retain, use, or disclose Company Personal Data outside of the direct business relationship between Company and Service Provider; and (vii) unless otherwise permitted by the CCPA, not combine Company Personal Data with personal data that Service Provider (1) receives from, or on behalf of, another person, or (2) collects from its own, independent consumer interaction. Service Provider will permit Company, upon reasonable request, to take reasonable and appropriate steps to ensure that Service Provider Processes Company Personal Data in a manner consistent with the obligations applicable to a “Business” under the CCPA by requesting that Service Provider attest to its compliance with this Section 3(k). Following any such request, Service Provider will promptly provide that attestation or notice about why it cannot provide it. If Company reasonably believes that Service Provider is engaged in unauthorized Processing of Company Personal Data that is subject to this Section 3(k), Company will immediately notify Service Provider of such belief, and the parties will work together in good faith to remediate the allegedly violative Processing activities, if necessary.

4. Information Security Program.
a) Security Measures. Service Provider shall use commercially reasonable efforts to implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Company Personal Data.

5. Security Incidents.
a) Notice. Upon becoming aware of a Security Incident, Service Provider agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Company’s Designated POC. Where possible, such notice will include all available details required under Data Protection Laws for Company to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.

6. Processing Terms for Company Personal Data.
a) Cross-Border Transfers of Company Personal Data. Company authorizes Service Provider and its Subprocessors to transfer Company Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
b) EU – U.S. Data Privacy Framework. Service Provider is a participant in the EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework (collectively, the “EU – U.S. Data Framework”). If Company Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Company to Service Provider in the United States, such transfer will be subject to the EU – U.S. Data Framework and Service Provider will: (i) provide at least the same level of privacy protection as is required by the Principles; (ii) Process such Company Personal Data in a manner consistent with the Principles; and (iii) notify Company if Service Provider makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by the Principles. If Company reasonably believes that Service Provider is engaged in unauthorized Processing of Company Personal Data that is subject to this Section 6(b), Company will immediately notify Service Provider of such belief, and the parties will work together in good faith to remediate the allegedly violative Processing activities, if necessary. Company may provide a summary or a representative copy of the relevant privacy provisions of the Agreement, including this Addendum to the U.S. Department of Commerce.
c) EEA, Swiss, and UK Standard Contractual Clauses. If Company Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Company to Service Provider in a country that has not been found to provide an adequate level of protection under applicable Data Protection Laws, the parties agree that the transfer shall be governed by the Standard Contractual Clauses, as supplemented by Exhibit A attached hereto, the terms of which are incorporated herein by reference. Where the Standard Contractual Clauses are applicable and Company acts as a controller of Company Personal Data with Service Provider acting as a processor of Company Personal Data, each party shall comply with its obligations under Module Two of the Standard Contractual Clauses. Where the Standard Contractual Clauses are applicable and Company acts as a processor of Company Personal Data with Service Provider acting as a (sub)processor of Company Personal Data, each party shall comply with its obligations under Module Three of the Standard Contractual Clauses. For clarity, the Standard Contractual Clauses do not apply to transfers of Company Personal Data that are subject to the EU – U.S. Data Framework. Each party’s signature to this Addendum or the Agreement (where incorporated by reference) shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.

7. Audits and Assessments.
a) Company Audit. Where Data Protection Laws afford Company an audit or assessment right, Company (or its appointed representative) may carry out an audit or assessment of Service Provider’s policies, procedures, and records relevant to the Processing of Company Personal Data. Any audit or assessment must be: (i) conducted during Service Provider’s regular business hours; (ii) with reasonable advance notice to Service Provider; (iii) carried out in a manner that prevents unnecessary disruption to Service Provider’s operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit or assessment shall be limited to once per year, unless an audit or assessment is carried out at the direction of a government authority having proper jurisdiction.

8. Company Personal Data Deletion.
a) Data Deletion. At the expiry or termination of the Agreement, Service Provider will delete all Company Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Service Provider’s data retention schedule), except where Service Provider is required to retain copies under applicable laws, in which case Service Provider will isolate and protect that Company Personal Data from any further Processing except to the extent required by applicable laws.

9. Company’s Obligations. Company represents and warrants that: (i) it has complied and will comply with Data Protection Laws; (ii) it has provided data subjects whose Company Personal Data will be Processed in connection with the Agreement with a privacy notice or similar document that clearly and accurately describes Company’s practices with respect to the Processing of Company Personal Data; (iii) it has obtained and will obtain and continue to have, during the term, all necessary rights, lawful bases, authorizations, consents, and licenses for the Processing of Company Personal Data as contemplated by the Agreement; and (iv) Service Provider’s Processing of Company Personal Data in accordance with the Agreement will not violate Data Protection Laws or cause a breach of any agreement or obligations between Company and any third party.

10. Processing Details.
a) Subject Matter. The subject matter of the Processing is the Services pursuant to the Agreement.
b) Duration. The Processing will continue until the expiration or termination of the Agreement.
c) Categories of Data Subjects. Data subjects whose Company Personal Data will be Processed pursuant to the Agreement.
d) Nature and Purpose of the Processing. The purpose of the Processing of Company Personal Data by Service Provider is the performance of the Services, including without limitation the provision of security and data protection services, enhance threat defenses, and provide licenses to Service Provider’s products and services.
e) Types of Company Personal Data. Company Personal Data that is Processed pursuant to the Agreement.

11. Business Contact Information. Notwithstanding anything to the contrary, this Addendum does not apply to any Processing of Personal Data by Service Provider as a “controller”, “business”, or where Service Provider otherwise determines the purpose and the means for Processing Personal Data. For example, Service Provider may Process business contact information about Company’s personnel (“Business Contact Information”) in connection with the operation, maintenance, and development of Service Provider’s business. In such cases, Service Provider may Process Business Contact Information in accordance with Service Provider’s privacy policy available at: https://www.threatdown.com/privacy-policy (as updated from time to time). Business Contact Information is not Company Personal Data.

12. Contact Information.
a) Company and Service Provider agree to designate a point of contact for urgent privacy and security issues (a “Designated POC”). The Designated POC for both parties are:

• Company Designated POC: shall be the primary email address associated with Company’s account for the Services.
• Service Provider Designated POC: VP, Deputy General Counsel, Ameet Matharu

Data Processing Addendum (DPA)

This Exhibit A forms part of the Addendum and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Exhibit A have the meaning set forth in the Addendum.

The parties agree that the following terms shall supplement the Standard Contractual Clauses:

Supplemental Terms. The parties agree that: (i) a new Clause 1(e) is added the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.”; (ii) a new Clause 1(f) is added to the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).”; (iii) the optional text in Clause 7 is deleted; (iv) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer must notify data exporter of any new subprocessors in accordance with Section 3(d) of the Addendum; (v) the optional text in Clause 11 is deleted; and (vi) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).

1. Annex I. Annex I to the Standard Contractual Clauses shall read as follows:

A. List of Parties

Data Exporter: Company.

Address: As set forth in the Notices section of the Agreement.

Contact person’s name, position, and contact details: Company’s Designated POC.

Activities relevant to the data transferred under these Clauses: The Services.

Role: Controller (Module Two), Processor (Module Three).

Data Importer: Service Provider.

Address: As set forth in the Notices section of the Agreement.

Contact person’s name, position, and contact details: Service Provider’s Designated POC.

Activities relevant to the data transferred under these Clauses: The Services.

Role: Processor.

B. Description of the Transfer:

Categories of data subjects whose personal data is transferred: The categories of data subjects whose personal data is transferred under the Clauses including, but not limited to, past, current, and future personnel of the Company and its affiliates; advisers, clients, consultants, service providers, and other professional experts of the Company and its affiliates.

Categories of personal data transferred: The categories of personal data transferred under the Clauses including, but not limited to, name, email, contact information, title, positions, address(es), IP address and device information.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: Any sensitive data that is transferred under the Clauses.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Personal data is transferred in accordance with the standard functionality of the Services, or as otherwise agreed upon by the parties.

Nature of the processing: The Services.

Purpose(s) of the data transfer and further processing: The Services.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data importer will retain personal data in accordance with the Addendum. 

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: Data importer’s list of subprocessors is posted at www.threatdown.com/legal/subprocessors.

C. Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.

D. Additional Data Transfer Impact Assessment Questions:

Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Clauses? If yes, please list these laws:

As of the effective date of the Addendum, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, and no such court action is pending. 

Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain:

No.

Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain:

No.

E. Data Transfer Impact Assessment Outcome: Taking into account the information and obligations set forth in the Addendum and, as may be the case for a party, such party’s independent research, to the parties’ knowledge, the personal data originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred pursuant to the Clauses to a country that has not been found to provide an adequate level of protection under applicable data protection laws is afforded a level of protection that is essentially equivalent to that guaranteed by applicable data protection laws.

F. Clarifying Terms: The parties agree that: (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 7 of the Addendum; (iv) under Clause 9(a), Module Three, data exporter agrees to will be solely responsible for communicating any information to the applicable controller; (v) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses; (vi) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; (vii) the information required under Clause 15.1(c) of the Clauses will be provided upon data exporter’s written request; and (viii) notwithstanding anything to the contrary, data exporter will reimburse data importer for all costs and expenses incurred by data importer in connection with the performance of data importer’s obligations under Clause 15.1(b) and Clause 15.2 of the Clauses without regard for any limitation of liability set forth in the Agreement.

2. Annex II. Annex II of the Standard Contractual Clauses shall read as follows:

Data importer shall use commercially reasonable efforts to implement and maintain appropriate technical and organizational measures designed to protect personal data in accordance with the Addendum.

Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the Addendum. 

3. Annex III. A new Annex III shall be added to the Standard Contractual Clauses and shall read as follows:

The UK Information Commissioner’s Office International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is incorporated herein by reference.

Table 1: The start date in Table 1 is the effective date of the Addendum. All other information required by Table 1 is set forth in Annex I, Section A of the Clauses.

Table 2: The UK Addendum forms part of the version of the Approved EU SCCs which this UK Addendum is appended to including the Appendix Information, effective as of the effective date of the Addendum.

Table 3: The information required by Table 3 is set forth in Annex I and II to the Clauses.

Table 4: The parties agree that Importer may end the UK Addendum as set out in Section 19.