Data Processing Addendum

This Data Processing Addendum (“DPA”) is made and entered into on the Effective Date by and between Peritus Learning and Development Ltd (“Peritus”) and the contracting customer (“Company”) as detailed in the Master Service Level Agreement (“Agreement/SaaS”).

Company and Peritus are also referred to as a “Party” and collectively as the “Parties”.

This DPA represents the Parties’ agreement regarding the processing of Personal Data submitted by the Company to the Services and it forms part of the Peritus’s Master Service Level Agreement (the “Agreement”), as updated from time to time, so this DPA and the Agreement shall be considered one, fully integrated document.

The duration of the Personal Data processing under this DPA corresponds to the duration of the Services. This DPA shall automatically terminate upon termination of the Agreement, or as earlier terminated pursuant to the terms of this DPA.

1. Definitions

“Company Personal Data” means Personal Data that are processed by Peritus in the course of providing the Services under the Agreement.

“Data Controller” means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data. For the purpose of this DPA, Data Controller is the Company and/or the other Data Controllers on whose behalf Company acts.

“Data Processor” means any natural or legal person, public authority, agency or any other body which processes Personal Data on behalf of a Controller or on the instruction of another Processor acting on behalf of a Controller. For the purpose of this DPA, Data Processor is Peritus and its Affiliates.

"Data Protection Laws" means all applicable laws and regulations relating to the processing of Personal Data and privacy that may exist in the relevant jurisdictions.

“Data Subject” means an identified or identifiable natural person.

“Data Systems” means information systems including, but not limited to, cloud based systems, net-services, networks, computers, computer systems, communication systems and other information systems which may or may not be part of the Platform.

“Peritus Affiliate” means Peritus affiliates, subsidiaries or sister companies (companies controlled by the same parent company) that may assist in the performance of the Services and may be engaged in the processing of Personal Data.

“GDPR” means the Regulation (EU) 2016/679 (European Union General Data Protection Regulation).

“Platform” is the online training platform provided by Peritus as part of the Services.

“Personal Data” means any information relating to an identified or identifiable living individual or as otherwise defined in the Data Protection Act 2018;

“process”, “processing” or “processed” are any operation or set of operations which is performed upon Personal Data, whether or not by automated means, according with the meaning they have in the GDPR.

“Security Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration or unauthorized disclosure of, or access to Company Personal Data.

“Services” means all services provided by Peritus under the Agreement, as defined and disciplined by the same Agreement.

“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 (Commission Decision of 5 February 2010) attached hereto as Annex C to this DPA.

“Sub-processor” means any Peritus Affiliate and any sub-contractor engaged in the processing of Company Personal Data, according to Section 3 of this DPA.

"Supervisory Authority" means any regulatory, supervisory, governmental or other competent authority with jurisdiction or oversight over the Data Protection Laws.

2. Appointment & Data Processing

2.1 Company is the sole Data Controller of the Company Personal Data or has been instructed by and obtained the authorization of the relevant Controller(s) to enter into this DPA in the name and on behalf of such Controller(s). Company is responsible for obtaining all the necessary authorizations and approvals to enter, use, provide, store and process Company Personal Data within the Service, ensuring Peritus to have obtained all the necessary permissions and approvals including under the law, to carry out such activities.

2.2 Company, as the Data Controller, hereby appoints Peritus as the Data Processor in respect of all processing operations carried out on Company Personal Data in order to provide the Services.

2.3 Peritus shall process Company Personal Data only for the purpose, scope and to the extent necessary to provide the Services and in accordance with Company’s instructions, as defined in paragraph 2.4 below.

2.4 The Parties agree that the Agreement and this DPA are the Company’s final instruction relating to the Company Personal Data Processing. Additional instructions that may be required by Company require the prior written agreement between the Parties, including agreement on any additional fees payable by Company to Peritus for carrying out such additional instructions. Company is entitled to terminate this Addendum and the Agreement if Peritus declines to follow any additional instructions requested by Company. In any case, Peritus will promptly inform Company if it believes that Company's instructions infringe Data Protection Laws or other relevant law.

2.5 Peritus acknowledges that is has no right, title or interest in Company Personal Data (including all intellectual property or proprietary information) and may not sell, rent or lease Company Personal Data to anyone.

2.6 The subject matter and duration of the processing, the nature and purpose of the processing, and the obligations and rights of Company are set forth in the Agreement, including this DPA. The type of Personal Data is non-sensitive identification data (first and last name) and contact details (email address). The categories of Data Subjects are Company personnel and personnel of Company’s customers and partners. Company must specify in the Annex B whether other type of Personal Data or other categories of Data Subjects are involved in the processing.

3. Sub-Processing

3.1 General

3.1.1 Company acknowledges and agrees that (a) Peritus Affiliates may be retained as Sub-processors; and (b) Peritus and Peritus Affiliates, respectively, may engage third-party Sub-processors in connection with the provision of the Services, or to fulfil its contractual obligations under this DPA, or to provide certain services on its behalf, such as providing support services.

3.1.2 On Company’s request, Peritus shall provide details of the name of each Sub-processor and details of the countries where Company Personal Data are processed by each Sub-processor, in accordance with Article 28(4) of GDPR.

3.1.3 Peritus shall notify Company of any intended changes to the identity of the Sub-processors. Within 30 days after Peritus’s notification of the intended change, Company can object to the Peritus’s use of a new Sub-processor, in which case Peritus and Company shall meet to discuss the matter in good faith. If Peritus cannot reasonable accommodate Company’s objection, Company may terminate the Agreement and this DPA. If Company does not object to the change within 30 days after Peritus’s notification, the use of the new Sub-processor will be deemed accepted.

3.1.4 Peritus may only disclose or permit access to Company Personal Data to a Sub-processor provided Peritus has first executed a valid and enforceable written contract with the Sub-processor containing privacy and security provisions substantially similar to those contained in this DPA, in accordance with Article 28(2) and 28(4) of GDPR.

3.1.5 Peritus will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of all Sub-processors it engages to provide the Services, that cause Peritus to breach any of Peritus's obligations under this DPA.

3.2 Docebo S.p.A

Docebo S.p.A - Via Parco 47 - 20853 Biassono (MB) - ITALY, is the Peritus Affiliate who owns, developed, maintains and operates the Platform.

3.3 Amazon Web Services

3.3.1 Company acknowledges that the Platform relies on Amazon Web Services (AWS), engaged as a Sub-processor to Peritus.

3.1.2 Peritus, through its third-party suppliers or Software licensors, has entered into a written data processing agreement with AWS containing privacy and security provisions that comply with the provisions of Article 28 of the GDPR.

3.4 Information Processing Location

Peritus will specify the location(s) where Company Personal Data will be processed within the AWS Network. The Main production site location and the Disaster recovery site location will be agreed among the parties during the Platform implementation. Locations include: London (UK); Ireland (EU); Frankfurt (EU); Northern Virginia (North America); Singapore (APAC); Sydney (APAC/Australia); Canada (North America).

3.5 Callidus Software Inc.

Company acknowledges that Company Personal Data is provided to them in order to provide the content element of the Services provided under the Agreement.

4. Compliance with Laws

4.1 Each Party will comply with all laws, including the Data Protection Laws applicable to it and binding on it in the performance of this DPA, including all statutory requirements relating to data protection.

4.2 Company acknowledges that Peritus is not responsible for determining the requirements of laws applicable to Company’s business or that Peritus’s provision of the Services meet the requirements of such laws.

5. Security Responsibilities of Peritus

5.1 Peritus is responsible for implementing and maintaining appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Company Personal Data and to ensure that Peritus's processing of Personal Data is in accordance with the requirements of the Data Protection Laws and protects the rights of Data Subjects.

5.2 Information relevant to such security measures is provided in the section 4 of Agreement’s Schedule A and in the “Information Protection and Security Standard” document, attached hereto as Annex A. Such document may be subject to changes, based on technical progress and further development, provided, in any case, that the security of the Services is not degraded.

5.3 The technical and organizational measures include the following:

i. Peritus has implemented and will maintain appropriate procedures to ensure that unauthorized persons will not have access to the Data Systems used to process Company Personal Data and that any persons it authorizes to have access to Company Personal Data will protect and maintain the confidentiality and security of Company Personal Data.

ii. Peritus has implemented and will maintain measures to ensure that all employees and contractors involved in the processing of Company Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection and handling of Personal Data.

iii. Peritus will take reasonable steps to ensure the reliability of any personnel who have access to Company Personal Data.

iv. Peritus will not copy or reproduce any Company Personal Data, except as technically necessary to provide the Services (e.g. for data backup for business continuity or disaster recovery purpose), or to comply with statutory data retention rules.

5.4 Company declares and confirms to have evaluated the security measures implemented by Peritus as providing an appropriate level of protection for the Company Personal Data, taking into account the risk associated with the processing of such Personal Data.

6. Security Breach

6.1 If Peritus becomes aware of either (a) any unlawful access to any Company Personal Data stored on the Data Systems used to process Company Personal Data; or (b) any unauthorized access to such Data Systems, where, in either case, such access results in loss, disclosure or alteration of Company Personal Data (each a “Security Incident”), Peritus without undue delay shall: (I) notify Company of the Security Incident; and (II) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.

6.2 In the event of a Security Incident, Peritus shall provide Company with a reasonable assistance in dealing with the Security Incident, in particular in relation to making any notification to a Supervisory Authority or any communication to Data Subject, according to Articles 33 and 34 GDPR. In order to provide such assistance and taking into account the nature of the Services and the information available to Peritus, the notification of the Security Incident according to paragraph 6.1 above may include: (i) a description of the nature of the Security Incident including the categories and approximate number of data records concerned; and (ii) the likely consequences of the breach; and (iii) the measures taken or to be taken by Peritus to address the breach including measures to mitigate any possible adverse consequences; (iv) where, and in so far as, it is not possible for Peritus to provide such information at the time of the notice, the information may be provided in phases without undue further delay.

6.3 Company agrees that:

i. Any Unsuccessful Security Incident will not be subject to this Section. An “Unsuccessful Security Incident” is one that results in no unauthorized access to Company Personal Data or to any Peritus controlled Data Systems used to process Company Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge server, port scans, unsuccessful log-in attempts, denial of service attack, packet sniffing or similar incidents; and

ii. Peritus's obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Peritus of any fault or liability of Peritus with respect to the Security incident.

6.4 Notification of a Security Breach shall be made to the Company via the contact details provided to Peritus via email, and telephonically.

7. Subject Access Requests & Other Communications

To the extent permitted by law, Peritus shall forward to Company any request received by Data Subject in connection with Company Personal Data. Taking into account the nature of the Services, Peritus shall provide reasonable assistance to Company by appropriate technical and organizational measure, insofar as this is possible, to allow the Company to respond to the Data Subject’s requests. Any cost arising from such assistance shall be borne by Company. Such costs shall be set forth in a quote to be agreed in writing by the Parties.

8. Data Quality, Retrieval & Destruction

8.1 Peritus will update, correct or delete Company Personal Data on Company’s request.

8.2 On termination of this DPA Peritus will comply with Company’s instruction to return, delete or destroy all Company Personal Data processed by Peritus (including all copies) and provide Company with written confirmation or certification of such return, deletion or destruction, unless legislation, regulations or other legal process applicable to Peritus prevents it from doing so.

8.3 Company acknowledges that the Platform relies on Amazon Web Services (AWS), and that Peritus can only logically delete terminated Company Personal Data stored in the Platform, as better specified in the relevant section of Annex A. Deletion will be performed in accordance with the timing requested by Company, or after fifteen (15) business days from the termination of the Agreement, if not otherwise specified.

9. Permitted Disclosures of Personal Data

9.1 Peritus may disclose Company Personal Data to the extent such data is required to be disclosed by law, by any government or regulatory authority, or by a valid and binding order of a law enforcement agency (such as a subpoena or court order) or other authority of competent jurisdiction.

9.2 If a law enforcement agency sends Peritus a demand for disclosure of the Company Personal Data, Peritus will attempt to redirect the law enforcement agency to request that data directly from Company. As part of this effort, Peritus may provide Company’s basic contact information to the law enforcement agency.

9.3 If compelled to disclose Company Personal Data to a law enforcement agency, then Peritus will give Company reasonable notice of the demand to allow Company to seek a protective order or other appropriate remedy, unless Peritus is legally prohibited from doing so.

10. Information Security Assessment

10.1 Peritus will provide to Company and its designees, during the term of this DPA, all requested information in order to assess Peritus’s information security measures adequacy and compliance with applicable data protection law.

10.2 Peritus or its partners or affiliates have obtained the third-party certifications and audits set forth in the “Annex A: Information Protection and Security Standard”. Upon Company’s written request, and subject to the confidentiality obligations set forth in the Agreement, Peritus shall make available to Company that is not a competitor of Peritus (or Company’s independent, third-party auditor that is not a competitor of Peritus) a copy of Peritus or its third-party suppliers or Software licensors most recent third-party audits or certifications, as applicable.

10.3 Company is responsible for reviewing the information made available by Peritus relating to data security and making an independent determination as to whether the Services meets Company’s requirements and legal obligations, including the requirements of Article 28-3(h) of GDPR, as well as Company’s obligations under this Addendum.

i. Peritus will allow for and contribute to audits, including inspections, at the following conditions: Company may ask to be authorized to commission, at its own expenses, an independent expert, whose appointment shall be subject to Peritus’s approval; or to directly perform activities to check the measures taken by Peritus, according to the schedule and to the modalities that will be agreed upon between the Parties, and in accordance with the relevant policy set forth by Peritus.

ii. Company may ask to be authorized to conduct, directly or through third parties whose appointment shall be subject to Peritus’s approval, and at its own expenses, penetration tests and vulnerability scans. Peritus shall allow such activities according to the schedule and to the modalities that will be agreed upon between the Parties, and in accordance with the relevant policy set forth by Peritus.

11 . Transfers of Personal Data out of the EEA

11.1 Peritus makes available the transfer mechanisms listed below which shall apply, in the order of precedence as set out in Section 11.2, to any transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations:

1. Peritus or its third-party suppliers or Software licensors’ EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications;

2. The Standard Contractual Clauses attached hereto as Annex C to this DPA.

11.2 The transfer of Personal Data will be subject to a single transfer mechanism in accordance with the following order of precedence: (1) Peritus or its third-party suppliers or Software licensors’ EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications and, (2) the Standard Contractual Clauses.

11.3 If Peritus engages a new Sub-processor in accordance with Section 3 of this DPA, at Peritus’s discretion:

i. Company shall enter into separate Standard Contractual Clauses with the new Sub-processor as provided by Peritus; or

ii. Peritus shall enter into a written agreement with such new Sub-processor which imposes the same obligations on the new Sub-processor as are imposed on Peritus under Standard Contractual Clauses.

11.4 Company agrees that the Standard Contractual Clauses, including any claims arising from them, are subject to the terms set forth in the Agreement, including the exclusion and the limitation of liability. In any case of conflict between the Agreement and the Standard Contractual Clauses, the latter shall prevail.

11.5 Company agrees that the provision of support services, as set forth in the Agreement, may require access to Company Personal Data by Peritus’s operators from EU or USA and Canada. In the latter case, the transfer of Personal Data will be subject to the transfer mechanisms set out in clause 11.2 above.

12. Nondisclosure

Company agrees that the details of this DPA are not publicly known and constitute Confidential Information under the confidentiality provisions of the Agreement. If the Agreement does not include a confidentiality provision protecting Confidential Information and Company and Peritus or its Affiliates do not have a non-disclosure agreement in place covering this DPA, then Company will not disclose the contents of this DPA to any third party except as required by law.

13. Assistance on Data Protection Impact Assessment

13.1 Peritus shall provide Company with reasonable cooperation and assistance needed to fulfil Company’s obligation under Article 35 of GDPR to carry out a data protection impact assessment related to Company’s use of the Services, to the extent Company does not otherwise have access to the relevant information, and to the extent such information is available to Peritus.

13.2 Peritus shall provide Company with reasonable assistance in the cooperation or prior consultation with the Supervisory Authority in the performance of its task according to Article 36 of GDPR.

13.3 Any charge relating to the assistance provided by Peritus under this Section 13 shall be borne by Company. Such costs shall be set forth in a quote to be agreed in writing by the Parties.

14. Liability

14.1 Peritus’s liability under this DPA shall be subject to the exclusions and the limitations of liability set out in the Agreement.

14.2 Company agrees to indemnify Peritus for any damages and regulatory penalties incurred by Peritus in relation to Company Personal Data that arise as a result of, or in connection with, Company’s failure to comply with its obligations under this DPA or the GDPR.

15. Entire Agreement

15.1 This DPA supersedes and replace all prior representation, understanding, communications and agreements between the Parties in relation to the matter of this DPA.

15.2 For anything not provided in this DPA, reference should be made to the Agreement and to the Data Protection Laws.

16. Annexes

Annex A: “Information Protection and Security Standard”

Annex B: “Other type of Personal Data and other categories of Data Subjects”

Other those specified in the section 2.6 of this DPA will be involved in the processing

Annex C: “Standard Contractual Clauses”

Annex A – Information Protection and Security Standard

Premises

This document constitutes Annex A of the Data Processing Addendum (the “Addendum”) whereby Peritus has been designated as data Processor by the Controller. All terms used and not otherwise defined herein, shall have the meanings ascribed to them in the Addendum.

The Platform relies on Amazon Web Services (AWS) and Peritus or its third-party suppliers or Software licensors leverages the comprehensive and state-of-the-art security capabilities provided by AWS.

The respective security responsibilities among Peritus or its third-party suppliers or Software licensors and AWS are defined in the AWS Shared Responsibility Model, as the same may be updated, from time to time.

Peritus or its third-party suppliers or Software licensors maintains an information security management system (“ISMS”), which is ISO/IEC 27001 certified. Within this framework, Peritus or its third-party suppliers or Software licensors has defined an information security program implementing, in accordance with ISO/IEC 27001 and AICPA/ISAE 3000 SOC 2, policies, procedures, administrative and technical safeguards to minimize security risks, through risk assessment, and to protect its customers’ data against accidental or unlawful loss, access or disclosure or other misuse.

The information security program includes the following measures.

1. INFORMATION SECURITY MANAGEMENT

An ISMS is documented, available, and communicated to employees and subcontractors.

Appropriate training is provided to employees and subcontractors in relation to the handling and protection of Company Data and compliance with the ISMS.

The effectiveness of the information security program is regularly monitored and reviewed, and, in any event, at least annually. Adjustments and strengthening are applied as appropriate, based on the results of such monitoring, as well as in response to operational changes that may affect the ISMS.

2. PHYSICAL SECURITY

Policies and procedures, and supporting business processes, are in place for maintaining a safe and secure working environment in Peritus’s offices and to control physical access.

The Platform relies on Amazon AWS who is responsible for implementing controls for restricting physical access to data center facilities, backup media, and other system components including firewalls, routers, and servers.

3. LOGICAL SECURITY

3.1. Access Control

Access control mechanisms are in place to prevent unauthorized access to Company Personal Data and to limit access to personnel with a business need to know.

The access to Company Personal Data is achieved by means of authenticated individual accounts and is limited solely to personnel which need access to perform specific responsibilities or functions in support of the Services.

Administrator accounts are used only for the purpose of performing administrative activities, and each account is traced to a uniquely-identifiable individual.

Accounts are disabled upon user termination or user change of roles and responsibilities, and it is an established and maintained process to periodically review access controls.

3.2. Network Security

The Platform relies on Amazon AWS and network connectivity level security is borne to Amazon. AWS Security Group virtual firewalls are configured to enforce boundaries of VPC and restrict access to the computing environment of the Platform and it runs an Intrusion Detection System.

3.3. Malicious Code Protection

Anti-virus software is used to scan uploaded content to protect the Platform against infection by computer viruses and malicious code.

An endpoint protection anti-virus centrally managed solution has been deployed.

4. SYSTEM DEVELOPMENT AND MAINTENANCE

4.1. Secure SDLC

Documented SDLC methodology is used in the development of new Platform functionalities and the maintenance of existing ones. The methodology contains required procedures for user involvement, testing, conversion, and management approvals of system features.

4.1. Patching vulnerabilities

Specific criteria for implement remediation for any known or identified vulnerabilities and for the application of security patches both on Platform and infrastructure components has been established. Any detected security vulnerability is triaged and monitored through resolution.

5. CHANGE MANAGEMENT

A systematic approach is applied to managing change and ensure that changes to customer-impacting aspects of any Platform functionality are reviewed, tested and approved. Development, testing and implementation are segmented functions within the process. Change management standards are based on established guidelines and tailored to the specifics of each change request.

6. EVENT LOGGING

Platform production servers and systems are configured to log access related events and send logs to a centralized logging repository, and monitoring tools are in place in order to analyze the systems for possible or actual security breaches. The logging and monitoring tools used are configured to provide e-mail alerts to appointed personnel when suspicious activity is detected.

7. INCIDENT RESPONSE

Documented procedures for reporting security, availability, and confidentiality incidents are in place for identifying, acting upon, and reporting failures, incidents and other security concerns.

Incidents are logged within a ticketing system, assigned severity rating and tracked to resolution.

Documented escalation procedures for managing security incidents are provided to guide the established Information Security Incident Response Team in the response and mitigation activities.

8. DATA PROTECTION

Access to the Platform can be limited to connecting only through SSL/HTTPS secure connections.

User content encryption at the storage level is provided as an additional service by leveraging the capability of Amazon S3 to store the file with 256-bit AES encryption and by leveraging AWS Key Management Service for the RDS database volume encryption.

9. DATA DESTRUCTION

Peritus or its third-party suppliers or Software licensors relies on AWS for data destruction as referred in the document “Amazon Web Services – EU Data Protection Whitepaper”, where AWS declares: “ when a customer deletes its content from the AWS services, the content is rendered unreadable or disabled and the underlying storage areas on the AWS network that were used to store the content are wiped, prior to being reclaimed and overwritten, in accordance with AWS standard policies and deletion timelines. AWS procedures also include a secure decommissioning process conducted prior to disposal of storagemedia used to provide the AWS services. As part of that process, storagemedia is degaussed or erased and physically destroyed or disabled in accordance with industry standard practices. ”

Please see http://aws.amazon.com/compliance/aws-whitepapers/ for the latest version of “Amazon Web Services – EU Data Protection Whitepaper”.

10. BUSINESS CONTINUITY AND DISASTER RECOVERY

A resilient Platform architecture is deployed by leveraging AWS features. Critical Platform components are replicated across multiple AWS Availability Zones, each of them designed as an independent failure zone. This capability is leveraged by balancing the architecture components between two AWS Availability Zones to keep the system operational, even if one Availability Zone stops working.

Disaster recovery plans are in place to guide personnel in procedures to protect against disruptions caused by an unexpected event.

Annex C – Standard Contractual Clauses

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

Company is the data exporting organisation (the data exporter)

And

Peritus is the data importing organisation (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.

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 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;

(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 request 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 and must be completed and signed by the parties.

Data subjects

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

● Data exporter’s personnel

● Personnel of data exporter’s customers and partners.

The data exporter has specified in the Annex B of the Data Processing Addendum any other categories of Data Subjects that are involved in the processing.

Categories of data

The personal data transferred concerns the following categories of data:

● Non-sensitive identification data (first and last name) and contact details (email address).

The data exporter has specified in the Annex B of the Data Processing Addendum any other categories Personal Data that are involved in the processing.

Processing operations

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

The nature and purpose of the processing are set forth in the Agreement between data importer and data exporter (Peritus’s Master Service Level Agreement) as established in the Data Processing Addendum.

Appendix 2 to the Standard Contractual Clauses

The technical and organisational security measures implemented by the data importer are described in the section 4 of Schedule A of the Agreement between data importer and data exporter (Peritus’s Master Service Level Agreement) and in the Annex A of the Data Processing Addendum “Information Protection and Security Standard”.