Data Processing Addendum

Date: March 11, 2021

This Data Processing Addendum (“DPA”) is incorporated by reference and forms an integral part of the software as a service (“SaaS”) agreement for the Subscription Services (commonly referred to as master subscription agreement, freemium subscription agreement and services agreement) and all related orders for Subscription Services between and Birch Grove Software, Inc. d/b/a ActivTrak (“ActivTrak”) and Customer (as defined below) (the “Agreement”). This DPA governs the Processing of Personal Data in connection with provision of Subscription Services under the Agreement and any applicable order form, sales order or similar transaction document (each an “Ordering Document”). ActivTrak and Customer may be referred to in this DPA individually as a “Party” and collectively as the “Parties.” This DPA becomes effective as of the date of the Agreement (“DPA Effective Date”).

By signing the Agreement, the Customer enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Law, on behalf of its Authorized Affiliates, if and to the extent ActivTrak processes Personal Data of Authorized Affiliates for which such Authorized Affiliates qualify as Controller. For the purposes of this DPA only, and except where indicated otherwise, the term “Customer” shall include the Customer entity executing the Agreement and all Customer’s Authorized Affiliates. All capitalized terms not defined herein shall have the meaning set forth in the Agreement or applicable Ordering Document.

HOW TO EXECUTE THIS DPA

This DPA consists of this cover page and the Data Processing Terms, including Schedules 1 and 2 (with appendices 1 to 3). Customer represents and warrants to ActivTrak that Customer, and any representative of Customer executing this DPA on its behalf, is fully authorized to legally bind Customer and any applicable Customer Authorized Affiliates to this DPA. Customer and ActivTrak acknowledge and agree that execution of the Agreement, whether by click-through or electronic or web-based acceptance of terms, shall constitute Customer’s and ActivTrak’s acceptance of this DPA.

HOW THIS DPA APPLIES

This DPA becomes a legally binding document, fully incorporated by reference as an addendum to the Agreement, once the Customer executes the Agreement, click-through or electronic or web-based acceptance of terms, pursuant to the section “How to Execute this DPA.”

DATA PROCESSING TERMS

In the course of providing the Services to Customer pursuant to the Agreement, ActivTrak may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data.

  1. DEFINITIONS.

    Adequate Country” means, for a jurisdiction with Data Protection Laws that restrict data transfers, a country that such jurisdiction recognizes as providing an adequate level of privacy and data protection as required by such jurisdiction’s Data Protection Laws.

    Affiliate” has the same meaning ascribed in the Agreement.

    Authorized Affiliate” means any of Customer’s Affiliates authorized to use the Services by Customer.

    CCPA” means the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.

    Controller” means the entity which determines the purposes and means of the Processing of Personal Data, including, as applicable, a “business,” “controller,” “data owner,” and other similar terms under Data Protection Laws that refer to persons or entities that determine the purposes and means of the processing of Personal Data.

    Customer” means the non-ActivTrak party that executed the Agreement and together with its Authorized Affiliates (for so long as they remain Affiliates), which have signed an Ordering Document.

    Data Protection Laws” means all applicable federal or state laws and regulations, including EU Data Protection Laws, that: (a) relate to the confidentiality, processing, privacy, security, protection, transfer or trans-border data flow of Personal Data; (b) relate to the privacy or
    interception, recording or monitoring of communications; (c) provide rights to an individual whose Personal Data is being processed; or (d) that trigger a duty to notify an individual whose Personal Data has been, or may have been, the subject of a Personal Data Breach. To the extent the term “Law” and/or “Applicable Law” is defined in the Agreement, the Parties agree that Data Protection Laws shall be
    included in such definition.

    Data Subject” means the identified or identifiable person to whom Personal Data relates.

    EU Data Protection Laws” means the Data Protection Laws in the EU, including but not limited to the EU General Data Protection Regulation 2016/679 (“GDPR”) and laws implementing or supplementing the GDPR.

    EU Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (as annexed to European Commission Decision 2010/87/EU) in the form attached hereto as Schedule 2 hereto, as such contractual clauses may be amended or replaced by the European Commission.

    Personal Data” means all information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a Data Subject or, where required by law, household, which is provided to ActivTrak by or on behalf of Customer in connection with the Agreement or related Ordering Document. Personal Data includes any information that constitutes: “personally identifiable information”; “non-public personal information”; “personal data”; “protected data”; or any similar category of information or data protected under Data Protection Laws. Personal Data shall be considered Customer’s Confidential Information under the Agreement.

    Personal Data Breach” means any actual or reasonably suspected misuse, compromise, or unauthorized, accidental or unlawful access, disclosure, acquisition, destruction, loss, or alteration of Personal Data, including, without limitation, any circumstance pursuant to which applicable Data Protection Laws require either notification to be given to affected parties or other activity in response to such circumstance.

    Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

    Processor” means the entity which Processes Personal Data on behalf of a Controller. A Processor includes “service providers,” “processors,” “third party service providers,” “third party agents,” and other similar terms under Data Protection Laws that refer to persons or entities that process Personal Data on behalf of a Controller.

    Restricted Transfer Country” means a jurisdiction whose Data Protection Laws restrict the transfer of Personal Data to third countries that are not Adequate Countries in the absence of
    appropriate safeguards, including by entering into the applicable Standard Contractual Clauses for such jurisdiction. Restricted Transfer Countries include, but are not limited to, member states of the European Union and the European Economic Area, Switzerland, and the United Kingdom.

    Service” has the meaning ascribed in the Agreement, and for the purposes of this DPA includes Subscription Services and any applicable Support Services (as defined in the Agreement).

    Standard Contractual Clauses” means standard or model contractual clauses that are published by a jurisdiction’s supervisory authority or that the jurisdiction otherwise authorizes to be used to enable the transfer of Personal Data from such jurisdiction to Processors in countries that such jurisdiction does not deem to be an Adequate Country, in compliance with such jurisdiction’s Data Protection Laws. Standard Contractual Clauses include but are not limited to the EU Standard Contractual Clauses.

    Subscription Services” means all available service plans for the ActivTrak SaaS analytics application to monitor and improve workforce productivity and efficiency, including the freemium, advanced, premium or any future service plan offered by ActivTrak, as may be modified, improved or expanded from time to time.

    Sub-processor” means any Processor, including ActivTrak Affiliate or third-party subcontractor, engaged by ActivTrak to Process Personal Data in connection with the provision of Services to Customer pursuant to the Agreement or related Ordering Document.

    Supervisory Authority” means public authority which is established in a jurisdiction to oversee compliance with Data Protection Laws, including but not limited to the supervisory authority in EU Member States pursuant to the GDPR.

  2. ROLES OF THE PARTIES.

    1. Controller. The Parties acknowledge and agree that with regard to Processing of Personal Data, Customer is the Controller. Prior to providing or otherwise making available Personal Data to ActivTrak, Customer will identify and inform ActivTrak of any additional Controllers. To the extent there are multiple Controllers, Customer shall serve as a single point of contact for ActivTrak. As other Controllers may have certain direct rights against ActivTrak, Customer undertakes to exercise all such rights on their behalf and to obtain all necessary permissions from the other Controllers. ActivTrak shall be discharged of its obligation to inform or notify any other Controller when ActivTrak has provided such information or notice to Customer.
    2. Processor. Customer appoints ActivTrak as Processor to Process Personal Data. Further, Customer authorizes ActivTrak to engage Sub-processors in accordance with the requirements set forth in Section 6.
    3. Assistance and Cooperation. ActivTrak shall provide such assistance, cooperation and information as Customer may reasonably require to comply with its obligations under applicable Data Protection Laws, including, without limitation, entering into any data transfer agreements, assisting with data protection impact assessments and associated consultations with a supervisory authority, and cooperating with any inquiry, notice or investigation by any SupervisoryAuthority.
  3. PROCESSING OF PERSONAL DATA.

    1. Restrictions on Processing. Customer discloses Personal Data to ActivTrak solely for the business purpose of ActivTrak performing the Services on behalf of Customer or Authorized Affiliate. ActivTrak shall treat Personal Data as Customer Confidential Information and process Personal Data only (i) in accordance with the documented instructions received from Customer or the applicable Authorized Affiliate (as the case may be), including with regard to transfers of Personal Data to a third country or an international organization (as defined in the GDPR), and (ii) for the purpose of fulfilling its obligations or exercising its rights under the Agreement. If ActivTrak reasonably believes Customer’s instruction violates Data Protection Laws, ActivTrak will promptly inform Customer and may suspend the performance of such instruction until Customer has modified such instruction or confirmed its lawfulness in writing. The scope of Customer’s instructions for Processing Personal Data shall be defined by the Agreement, any applicable Ordering Document and this DPA.
    2. Description of Processing. The Agreement, including this DPA, and any applicable Ordering Document set forth the purposes of the Processing. ActivTrak agrees to store or otherwise Process Personal Data at data centers at the locations listed in the ActivTrak Sub-processor List referenced in Section 6 of this DPA, with respect to Processing by ActivTrak Sub-processors in provision of the Services, as may be updated from time to time in accordance to Section 6 of this DPA.
    3. No Sale of Personal Data.
      shall not sell any Personal Data. The Parties acknowledge and agree that (i) ActivTrak has not and will not receive any monetary or other valuable consideration in exchange for ActivTrak’s receipt of Personal Data, and (ii) any consideration paid by Customer to ActivTrak under the Agreement is for ActivTrak’s provision of the Services only. ActivTrak shall not Process the Personal Data (a) for any purpose other than the specific purpose of providing the Services to Customer pursuant to the Agreement or applicable Ordering Document or (b) outside the direct business relationship between ActivTrak and Customer.
  4. DATA SUBJECTS RIGHTS.

    1. Data Subject Request. To the extent legally permitted, ActivTrak shall promptly, but in no event later than ten (10) business days, notify Customer of any request that it receives directly from a Data Subject to exercise their rights pursuant to Data Protection Laws (each a “Data Subject Request”). Unless otherwise required by applicable law, ActivTrak shall not respond to a Data Subject Request, except to direct such Data Subject to Customer. Further, Customer acknowledges and agrees that Customer shall be responsible to respond to Data Subject Requests.
    2. Assistance. As reasonably requested by Customer, and taking into account the nature of the Processing, ActivTrak shall assist, insofar as reasonably possible, by implementing technical and organizational measures to respond to Data Subject Requests.
    3. Costs. To the extent legally permitted, Customer shall be responsible for any reasonable costs arising from ActivTrak’s provision of assistance under this Section 4.
  5. ACTIVTRAK PERSONNEL.

    1. Confidentiality. ActivTrak shall ensure that each ActivTrak personnel with access to Personal Data is (i) informed of the confidential nature of the Personal Data; (ii) subject to
      confidentiality undertakings or professional or statutory obligations of confidentiality; and (iii) trained on their responsibility of confidentiality. ActivTrak shall ensure that such confidentiality obligations survive the termination of the personnel engagement.
    2. Access to Personal Data. ActivTrak shall ensure that access to Personal Data is limited to those personnel with a need to know in order for ActivTrak to perform its obligations or exercise its rights under the Agreement.
    3. Reliability. ActivTrak shall take commercially reasonable steps to ensure the reliability of ActivTrak personnel with access to Personal Data.
  6. SUB-PROCESSORS

    1. Appointment of Sub-processors. Customer authorizes ActivTrak to appoint Sub-processors to Process the Personal Data on behalf of ActivTrak. The current list of Sub-processors engaged by ActivTrak and authorized by Customer is located on ActivTrak’s website here (“ActivTrak Sub-processor List”). Customer acknowledges and agrees that (a) ActivTrak’s Affiliates may be appointed as Sub­processors; and (b) ActivTrak (and its Affiliates) may engage third-party Sub-processors. Prior to disclosing Personal Data to such Sub-processors, ActivTrak (or ActivTrak Affiliate) shall enter into a written agreement with each such Sub-processor containing substantially similar privacy and data protection obligations as those in the Agreement, applicable Ordering Document and this DPA. To the extent allowable by law, ActivTrak shall make available to Customer upon request copies of such written agreements with Sub-processors.
    2. List of Current Sub-processors. ActivTrak shall maintain an updated list of Sub-processors, as made available on ActivTrak’s website here. Such Sub-processor lists shall identify the Sub-processors and the location of each. Such list of ActivTrak Sub-processors shall include instructions for Customer to subscribe to notification of updates to such list, including intended changes related to the addition or replacement of Sub-processors.
    3. Objection to New Sub-processors. Customer may object to any new Sub-processor by submitting such objection via this form promptly, but no later than ten (10) business days, after notice of such new Sub-processor in accordance with notification procedures set out in Section 6.2 above. With respect to Customer’s timely objections, ActivTrak will (i) use commercially reasonable efforts to provide Customer the Services without the use of such Sub-processor; (ii) take the corrective steps requested by Customer, if reasonably feasible; or (iii) temporarily or permanently, as agreed to by the Parties, cease the provision of the particular services, or aspect of the services, that involve the Sub-processor to which Customer objects. If the Parties are unable to resolve such objection within thirty (30) days, Customer may terminate in writing the relevant services in the applicable Order Form(s) only. For clarity, such termination shall be limited to those services which cannot be provided by ActivTrak without the use of the objected-to new Sub-processor.
    4. Urgent Sub-processor Substitution. In some instances, ActivTrak may be required to replace a Sub-processor on an urgent basis, where such replacement is necessary for the provision of the Services due reasons beyond its control. In such instances, ActivTrak shall notify Customer of the replacement as soon as reasonably practicable. Further, Customer shall have the right to object to such urgent substitutions or replacements pursuant to Section 6.3 above.
    5. Sub-processor Failure to Meet Obligations. Except as otherwise set forth in the Agreement and this DPA, ActivTrak shall be responsible for the obligations of, and services and functions performed by, Sub-processors to the same extent as if ActivTrak performed such obligations, services and functions itself.
  7. SECURITY.

    1. Safeguarding Customer Personal Data. Without limiting the Parties’ security-related obligations under the Agreement, ActivTrak shall at all times implement and maintain a comprehensive information security program that (i) contains reasonable and appropriate administrative, technical, and organizational measures designed to protect the security, confidentiality, integrity and availability of Personal Data, including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data; (ii) complies with Data Protection Laws that apply to ActivTrak as a Processor, including, where applicable, security requirements under the EU Data Protection Law; and (iii) complies with any other specific requirements agreed upon in writing by Parties.
    2. No Degradation of Security. During the Term of the Agreement, any applicable Ordering Document and this DPA, ActivTrak will not reduce or decrease the overall level of security provided to the protection of Personal Data without the approval of Customer.
  8. AUDITS.

    1. Data Handling Audit. In addition to any other audit rights that Customer may have under the Agreement, Customer, through a third-party auditor reasonably acceptable to ActivTrak, and relevant regulatory or supervisory authorities shall have the right to inspect and audit ActivTrak’s facilities, data, documentation, system accounts, books, records, internal policies and controls, and other materials applicable to compliance with this DPA. Such audit will be conducted at a time and in accordance with procedures mutually agreed upon by the Parties, with additional measures taken to minimize the impact of such audit on ActivTrak’s business operations.
    2. Cost. Each Party will bear its own costs in respect of Section 8.2; provided, however, that if any such audit determines that ActivTrak is in breach of its obligations set forth in this DPA, then ActivTrak Provider shall reimburse Customer for its costs and expenses incurred in connection with performing such audit.
  9. PERSONAL DATA BREACHES.

    1. Notification Requirements. In addition to any data or security breach notification obligations under the Agreement, ActivTrak will notify Customer without undue delay, but no later than 72 hours, after becoming aware of a Personal Data Breach.
    2. Notification Contents. In relation to the notification requirement in Section 9.1, ActivTrak shall describe (i) the nature of the Personal Data Breach; (ii) the categories and, to the extent reasonably possible, approximate number of Data Subjects; (iii) to the extent reasonably possible, information regarding the Data Subjects and data records concerned; (iv) measures taken or proposed to be taken by ActivTrak to address the Personal Data Breach; and (vi) the name and contact details of ActivTrak’s data protection officer or other relevant contact from whom more information may be obtained.
    3. Cooperation and Assistance. ActivTrak shall take prompt steps to remediate the Personal Data Breach and mitigate any harmful effects on Personal Data. In addition, ActivTrak shall reasonably cooperate with Customer’s requests and take such steps to assist in any subsequent investigation, mitigation, and remediation of such Personal Data Breach.
  10. RETURN, DELETION, AND RETENTION OF CUSTOMER DATA.

    1. Return and Deletion. Upon termination or expiration of the Agreement or applicable Ordering Document, ActivTrak shall, in accordance with the terms of the Agreement, delete or make available to Customer for retrieval all Personal Data (including copies, if applicable) in its possession or control, except to the extent that (i) ActivTrak is otherwise required maintain such data by applicable law; or (ii) such Personal Data is archived on back-up systems, for which ActivTrak will protect such data from further Processing and delete in accordance with ActivTrak’s standard deletion practices.
    2. Retention. In accordance with Section 10.1, ActivTrak may retain such portion of Personal Data, provided that ActivTrak (a) complies with the confidentiality, privacy and data security provisions of the Agreement and this DPA for as long as it retains such Personal Data, and (b) deletes such data without undue delay once ActivTrak is no longer subject to such requirement.
  11. AUTHORIZED AFFILIATES.

    1. Contractual Relationship. The Parties acknowledge and agree that Customer enters into this DPA on behalf of itself and, as applicable, on behalf of its Authorized Affiliates. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. Customer shall ensure that Authorized Affiliates’ use of the Services shall at all times comply with Data Protection Laws, the Agreement, all applicable Ordering Documents and this DPA. Any such violation by an Authorized Affiliate shall be deemed a violation by Customer.
    2. Communication. Customer shall remain responsible for coordinating all communication with ActivTrak under this DPA in relation to this DPA on behalf of its Authorized Affiliates. Customer shall serve as a single point of contact forAuthorized Affiliates. ActivTrak shall be discharged of its obligation to inform or notify another Authorized Affiliate when ActivTrak has provided such information or notice to Customer.
    3. Rights of Authorized Affiliates. As Authorized Affiliates may have certain direct rights against ActivTrak, Customer shall exercise all such rights on their behalf and shall obtain all necessary permissions from any applicable Authorized Affiliate, subject to the following:
      1. Except where applicable Data Protection Laws require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against ActivTrak directly;
      2. Customer shall exercise any such rights under this DPA in a combined manner for itself and all applicable Authorized Affiliates. For clarity, Customer shall not exercise such rights separately for each individual Authorized Affiliate; and
      3. With respect to audit rights under Section 8 of this DPA, Customer shall exercise audit requests on behalf of itself and all Authorized Affiliates in one single audit, to the extent reasonably possible.
  12. LIMITATION OF LIABILITY; INDEMNIFICATION.

    1. ActivTrak’s liability, taken together in the aggregate, arising out of or related to this DPA, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement. Any reference in such section of the Agreement to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and DPA together. For the avoidance of doubt, ActivTrak’s (including its Affiliates) total liability for all claims by Customer and all Authorized Affiliates arising out of or related to the Agreement and this DPAs shall apply in the aggregate, and not individually and severally to Customer and/or to any Authorized Affiliate.
    2. The indemnity provisions of the ‘Indemnification’ section of the Agreement are incorporated by reference herein.
  13. CROSS-BORDER DATA TRANSFER.

    1. Transfer Mechanisms for Data Transfers. Subject to the additional terms in Schedule 1, the Parties shall take measures to ensure that Personal Data is transferred in accordance with Data Protection Laws, including but not limited to entering into Standard Contractual Clauses pursuant to this Section 13. ActivTrak shall provide Customer with all information reasonably necessary to allow Customer to obtain any applicable data transfer authorization in connection with the Services.
    2. EU Standard Contractual Clauses. Pursuant to the Agreement or applicable Ordering Document, if Customer has approved ActivTrak to process Personal Data related to individuals located in the EU, EEA, United Kingdom, or Switzerland, the Parties concurrent with executing this DPA hereby execute the EU Standard Contractual Clauses, attached to this DPA as Schedule 2 (including Appendices 1-3).
    3. Other Restricted Transfer Countries.Pursuant to the Agreement or applicable Ordering Document, if Customer has approved ActivTrak to process Personal Data that originates from a Restricted Transfer Country other that the jurisdictions identified in Section 13.2 above, the Parties shall execute Schedule 2 of this DPA, or the applicable Standard Contractual Clauses for that jurisdiction, concurrently with the execution of the Agreement and this DPA, provided such Restricted Transfer Country permits the use of Standard Contractual Clauses, including in the form of Schedule 2 hereto, for data transfer purposes.
  14. GENERAL.

    1. Choice of Law. The validity, construction, and the Parties’ performance under this DPA shall be governed by the choice of law provision in the Agreement, unless otherwise required by Data Protection Law.
    2. Order of Precedence; Conflicts. To the extent there is a conflict between the provisions in this DPA and any privacy or data security-related provisions in the Agreement, the provisions in this DPA shall control. If the Services include the Processing of Personal Data originating in a Restricted Transfer County pursuant to Section 13 above, the obligations under the applicable Standard Contractual Clauses shall control with respect to any Personal Data that is subject to the laws of the relevant jurisdiction for such Standard Contractual Clauses, to the extent there is a with the requirements in this DPA.
    3. Change in Data Protection Laws. The Parties agree to work together in good faith to investigate and evaluate the impact of any changes to Data Protection Laws and work toward resolving concerns related to such changes. For this purposes of this section changes in Data Protection Laws includes, but is not limited to, changes in such laws or guidance issued by Supervisory Authority or governmental agency.
    4. Relationship of the Parties. The Parties acknowledge and agree that ActivTrak is acting as an independent contractor. Nothing contained in this DPA shall be construed as forming a partnership or joint venture between the Parties.
    5. Integration, Waiver and Severability.
      1. This DPA and the Agreement supersede all prior oral or written agreements with respect to the subject matter and contain the full understanding and agreement of the Parties with respect to the use, disclosure and safeguarding of Personal Data. This DPA may not be amended, modified or waived, in whole or in part, except in a writing signed by the Parties.
      2. No waiver by a Party of its rights with respect to any breach of the other party’s obligations in this DPA shall be construed to be a waiver of any subsequent similar breach, and such waiver shall not prevent the Party from asserting its right under this DPA or the Agreement.
      3. If any provision of this DPA is held to be invalid or unenforceable by a court of competent jurisdiction, the Parties agree that the provision affected will be severed and the maximum restriction available under such circumstances shall be substituted for the stated restriction. The remainder of this DPA will continue in full force and effect.
    6. Notices. Unless otherwise stated in this DPA, all notices required under this DPA shall be provided as required in the Agreement or applicable Ordering Document.
    7. Successors and Assigns. All terms of this DPA shall be binding upon and inure to the benefit of the Parties’ successors and assigns.
    8. Headings. The headings provided in this DPA are for convenience only and shall not affect the enforcement or interpretation of this DPA.
    9. Survival. The obligations undertaken and agreements made in sections 3.1, 3.3, 4, 5, 7, 9, 10, 12, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, shall survive the termination of the Agreement, any applicable Ordering Document and this DPA. Each such obligation or agreement shall be construed as independent of any other provision of this DPA, the Agreement or applicable Ordering Document following termination.
    10. Term and Termination. This DPA shall commence on the DPA Effective Date and shall thereafter remain in full force and effect unless and until terminated pursuant to this Section 10. This DPA will automatically terminate upon (i) the termination of the Agreement, (ii) written notice provided by Customer to ActivTrak, or (iii) upon written notice provided by ActivTrak to Customer.

List of Schedules

Schedule 1: Details of the Processing
Schedule 2: EU Standard Contractual Clauses (Processors)

SCHEDULE 1 – DETAILS OF THE PROCESSING

This Schedule 1 to this DPA includes certain details of the Processing of Customer Personal Data as required by Data Protection Laws, including but not limited to Article 28(3) GDPR.

Subject Matter and Duration of Processing of Customer Personal Data

As more clearly set out in the Agreement, Ordering Document and this DPA, ActivTrak Processes Customer Personal Data in the provision of its Services, which Customer uses to monitor and improve workforce productivity and efficiency, for the duration of the term as set forth in the Agreement and applicable Ordering Document(s), subject to Section 10 of the DPA or as otherwise agreed upon in writing by the Parties.

Nature and Purpose of Processing

ActivTrak will Process Personal Data as necessary for the provision of the Services to Customer or Authorized Affiliate, pursuant to the Agreement, applicable Ordering Documents and this DPA.

Categories of Data Subjects

Customer may upload Personal Data to the Services, or otherwise make available such Personal Data to ActivTrak, the extent of which is determined and controlled by Customer in its sole discretion. This Personal Data may relate, but is not limited to, the following categories of data subjects:

  • Customer’s past, present and prospective customers, business partners and vendors, and their employees, partners, advisors, consultant, suppliers, vendors, contractors, subcontractors and agents;
  • Past, present and prospective employees (or contact persons) of Customer;
  • Customer’s agents, advisors and freelancers; and
  • Other end users of the Service authorized by Customer to use the Services.

Type of Personal Data

Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but are not limited to the following categories of Personal Data:

  • Personal Identifiers (including name, government ID);
  • Professional life data (including business address, e-mail address, phone and fax contact details and associated local time zone information);
  • Personal life data (including home address and phone number);
  • Employer and employment information (including Employer name, title, job position, location, employee ID, if any);
  • IT systems information (including user ID and password, computer name, domain name, IP address, and software usage pattern tracking information, i.e. cookies); and
  • The data subject’s email content and transmission data which is available on an incidental basis for the provision of Services and Support Services (incidental access may include accessing the content of e-mail communications and data relating to the sending, routing and delivery of emails).

SCHEDULE 2 – STANDARD CONTRACTUAL CLAUSES

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.

These Standard Contractual Clauses are attached and incorporated by reference to the Data Protection Addendum (“DPA”) between ActivTrak and the non-ActivTrak signatory to the DPA, on its behalf and on behalf of its Authorized Affiliates, as such term is defined in the DPA (“Customer”).

For the purpose of these Standard Contractual Clauses, Customer is the data exporting organisation, with its business address, telephone and email information identified in the the Agreement (as defined in the DPA), corresponding to the non-ActivTrak signatory of the Agreement (the “data exporter”). Birch Grove Software, Inc. d/b/a ActivTrak is the data importing organisation (the “data importer” or “ActivTrak”), with its principal place of business at 1301 S MoPac Expy Suite #LL25, Austin, TX 78746; Telephone: + (1) 888-907-0301; and e-mail: [email protected]. ActivTrak and Customer may each be referred to in these Standard Contractual Clauses as a “party” and together the “parties.”

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.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘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;

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘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 and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

(d) ‘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;

(e) ‘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;

(f) ‘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.

Clause 2

Details of the transfer

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

Clause 3

Third-party beneficiary clause

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) 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;

(b) 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;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) 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;

(e) that it will ensure compliance with the security measures;

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

(g) to fo rward 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;

(h) 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;

(i) 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

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

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) 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;

(b) 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;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

     (i) 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,

     (ii) any accidental or unauthorised access, and

     (iii) any req uest received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) 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;

(f) 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;

(g) 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;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

  1. 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.
  2. 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.
  3. 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.

Clause 7

Mediation and jurisdiction

  1. 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:          (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;          (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

    Clause 8

    Cooperation with supervisory authorities

    1. 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.
    2. 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.
    3. 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). 

    Clause 9

    Governing Law

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

    Clause 10

    Variation of the contract

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

    Clause 11

    Subprocessing

    1. 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.
    2. 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.
    3. 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.
    4. 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.

    Clause 12

    Obligation after the termination of personal data processing services

    1. 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.
    2. 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

    This Appendix forms part of the Clauses.

    The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

    Data exporter

    The data exporter is (please include legal entity name and address):

    The data exporter is: (i) the legal entity that has executed the Standard Contractual Clauses as a data exporter, and (ii) all Authorized Affiliates (as defined in the DPA) on whose behalf the data exporter has entered into the DPA. The data exporter is the controller of the data processed by the data importer, which includes the personal data of the data exporter’s end users. Where the data exporter is processing its customer’s personal data as a data processor and transferring it to the data importer, data exporter is acting as agent for and on behalf of its customers in respect of customer personal data.

    Data importer

    The data importer is (please specify briefly activities relevant to the transfer):

    ActivTrak, Inc., 1301 S MoPac Expy Suite #LL25, Austin, Texas 78746.

    Date importer is a provider of cloud computing solutions, which processes personal data in accordance with the instruction of the data exporter and the terms of the Agreement.

    Data subjects

    The personal data transferred concern the following categories of data subjects:

    • Data exporter’s past, present and prospective customers, business partners and vendors, and their employees, partners, advisors, consultant, suppliers, vendors, contractors, subcontractors and agents;
    • Past, present and prospective employees (or contact persons) of data export;
    • Data exporter’s agents, advisors and freelancers; and
    • Other end users of the Service authorized by the data exporter to use the Services.

    Categories of data

    The personal data transferred concern the following categories of data:

    Data exporter may submit Personal Data to the Services, the extent of which is determined and controlled by data exporter in its sole discretion, and which may include, but are not limited to the following categories of Personal Data:

    • Personal Identifiers (including name, government ID);
    • Professional life data (including business address, e-mail address, phone and fax contact details and associated local time zone information);
    • Personal life data (including home address and phone number);
    • Employer and employment information (including Employer name, title, job position, location, employee ID, if any);
    • IT systems information (including user ID and password, computer name, domain name, IP address, and software usage pattern tracking information, i.e. cookies); and
    • The data subject’s email content and transmission data which is available on an incidental basis for the provision of Services and Support Services (incidental access may include accessing the content of e-mail communications and data relating to the sending, routing and delivery of emails).

    Special categories of data (if applicable)

    The personal data transferred concern the following special categories of data (please specify if applicable):

    None expected.

    Processing operations

    The personal data transferred will be subject to the following basic processing activities:

    The data importer will process Personal Data as needed for the provision of the Services (including software applications) and Support Services to the data exporter as described in the Agreement and applicable Ordering Documents.

    APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES

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

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

    Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services. Additional detail regarding the safeguards available by data importer upon reasonable request from data exporter. Data Importer will not materially decrease the overall security of the Services during a subscription term.

    Technical Security Measures

    • Identity and Access Management systems and processes
    • Network Devices such as Intrusion Detection Systems, Routers, Firewalls
    • Digital Certificates
    • Password Guidelines
    • Email Policy
    • Backup Strategy
    • Log-in with user-ID/password
    • Logging and analysis of system usage
    • Role based access
    • Encrypted Virtual Private Networks

    Organizational Security Measures

    • Controlled access for critical or sensitive areas
    • Visitor Registration and Escort Processes
    • Badges (both employees and visitors)
    • Regular application and network penetration testing
    • Employee Hiring Procedures which require the completion of a detailed application form, and, where legally allowed:
      • Previous employment verification
      • Identity verification
    • All company employees are required to comply with the processor’s Standards of Business Conduct which, at a minimum, includes commitment to comply with processor’s:
      • Privacy Policies
      • Data Handling Policies
      • Confidential Information Policy
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