This Data Processing Addendum (including all Schedules attached hereto, the “DPA”) is incorporated into, and is subject to the terms and conditions of, the Master Subscription Agreement or other written or electronic agreement (“Agreement”) between Traceable, Inc. (“Traceable”) and the entity identified as “Customer” in the Agreement (“Customer”). This DPA applies to the extent Traceable’s Processing of Customer Personal Data is subject to the Data Protection Laws. This DPA shall be effective for the term of the Agreement.
1. Definitions
1.1. For this DPA:
1.1.1. “CCPA” means the California Consumer Privacy Act, including as modified by the California Privacy Rights Act (“CPRA”) once the CPRA takes effect, together with any implementing regulations;
1.1.2. “Controller” means the entity which determines the purposes and means of the Processing of Personal Data;
1.1.3. “Customer Personal Data” means the Personal Data described under Schedule 1 to this DPA;
1.1.4. “Data Protection Laws” means all laws relating to data protection and privacy applicable to Traceable’s Processing of Customer Personal Data, including without limitation, the CCPA, the GDPR and member state laws implementing the GDPR, the United Kingdom’s Data Protection Act 2018, and applicable privacy and data protection laws of any other jurisdiction, each as amended, repealed, consolidated or replaced from time to time;
1.1.5. “Data Subjects” means the individuals identified in Schedule 1;
1.1.6. “EU SCCs” means the Standard Contractual Clauses approved with Commission Implementing Decision (EU) 2021/914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as amended, supplemented, updated or replaced from time to time;
1.1.7. “GDPR” means the General Data Protection Regulation (EU) 2016/679 together with any national implementing laws in any member state of the EEA (“EU GDPR”) and the EU GDPR as incorporated into the laws of the United Kingdom (“UK GDPR”);
1.1.8. “Personal Data”, “Personal Data Breach” and “Processing” will each have the meaning given to them in the Data Protection Laws. The term “Personal Data” includes “personal information,” “personally identifiable information,” and equivalent terms as such terms may be defined by the Data Protection Laws. The term “Personal Data Breach” includes equivalent terms as defined by the Data Protection Laws;
1.1.9. “Processor” means the entity which Processes Personal Data on behalf of the Controller;
1.1.10. “Sell” has the meaning given in the Data Protection Laws; and
1.1.11. “UK SCCs” means the Standard Contractual Clauses for controller to processor transfers set forth in the European Commission’s decision (C(2010)593) of 5 February 2010.
1.2. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
2. Processing of Customer Personal Data
2.1. The parties acknowledge and agree that Customer is the Controller or Processor of Customer Personal Data and Traceable is a Processor of Customer Personal Data. Traceable will only Process Customer Personal Data as a Processor on behalf of and in accordance with Customer’s prior written instructions, including any instructions provided through Customer’s use of the Service. Traceable is hereby instructed to Process Customer Personal Data to the extent necessary to provide the Service as set forth in the Agreement and this DPA. Traceable shall not (1) retain, use, or disclose Customer Personal Data other than as provided for in the Agreement, as needed to provide the Service, or as otherwise permitted by Data Protection Laws; (2) combine Customer Personal Data with Personal Data Traceable receives from other customers or individuals (except as permitted by the CCPA); or (3) Sell Customer Personal Data. Traceable shall notify Customer if it determines that it cannot meet its obligations under the CPRA. Upon receiving written notice from Customer that Traceable has Processed Customer Personal Data without authorization, Traceable will stop and remediate such Processing.
2.2. Traceable will immediately inform Customer if, in its opinion, an instruction from Customer infringes the Data Protection Laws.
2.3. The details of Traceable’s Processing of Customer Personal Data are described in Schedule 1.
2.4. If applicable laws preclude Traceable from complying with Customer’s instructions, Traceable will inform Customer of its inability to comply with the instructions, to the extent permitted by law.
2.5. Each of Customer and Traceable will comply with their respective obligations under the Data Protection Laws.
3. Cross-Border Transfers of Personal Data
3.1. With respect to Customer Personal Data originating from the European Economic Area (“EEA”) or Switzerland that is transferred from Customer to Traceable, the parties agree to comply with the general clauses and with “Module Two” (Controller to Processor) of the EU SCCs, which are incorporated herein by reference, with Customer as the “data exporter” and Traceable as the “data importer.”
3.2. For purposes of the EU SCCs the parties agree that:
3.2.1. In Clause 7, the optional docking clause will not apply;
3.2.2. In Clause 9, Option 2 will apply and the time period for prior notice of Sub-Processor changes will be as set forth in Section 5.1 of this DPA;
3.2.3. In Clause 11, the optional language will not apply;
3.2.4. For the purposes of Clause 15(1)(a), Traceable shall notify Customer (only) and not the Data Subject(s) in case of government access requests and Customer shall be solely responsible for promptly notifying the affected Data Subjects as necessary;
3.2.5. In Clause 17, the EU SCCs shall be governed by the laws of Ireland;
3.2.6. In Clause 18(b), the parties agree to submit to the jurisdiction of the courts of Ireland;
3.2.7. In Annex I, Section A (List of Parties), (i) the data exporter’s and the data importer’s identity and contact details and, where applicable, information about their respective data protection officer and/or representative in the EEA are those set forth in the Agreement or as otherwise communicated by each party to the other party; (ii) Customer is a Controller or Processor, and Traceable is a Processor; (iii) the activities relevant to the data transferred under the EU SCCs relate to the provision of the Services pursuant to the Agreement; and (iv) entering into this DPA shall be treated as each party’s signature of Annex I, Section A, as of the effective date of this DPA;
3.2.8. In Annex I, Section B (Description of Transfer): (i) Schedule 1 to this DPA describes Traceable’s Processing of Customer Personal Data; (ii) the frequency of the transfer is continuous (for as long as Customer uses the Services); (iii) Customer Personal Data will be retained in accordance with Clause 8.5 of the EU SCCs and this DPA; (iv) Traceable uses sub-Processors to support the provision of the Services.
3.2.9. In Annex I, Section C (Competent Supervisory Authority), the competent supervisory authority identified in accordance with Clause 13 of the EU SCCs is the competent supervisory authority communicated by Customer to Traceable. Unless and until Customer communicates a competent supervisory authority to Traceable, the competent supervisory authority shall be the Irish Data Protection Commission.
3.2.10. In Annex II, data importer has implemented and will maintain appropriate technical and organizational measures to protect the security, confidentiality and integrity of Customer Personal Data as described in Schedule 2.
3.3. If the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection, the parties agree to rely on the EU SCCs with the following modifications: (i) the Federal Data Protection and Information Commissioner (FDPIC) will be the competent supervisory authority under Clause 13 of the EU SCCs; (ii) the parties agree to abide by the GDPR standard in relation to all Processing of Customer Personal Data that is governed by the Swiss Federal Act on Data Protection; (iii) the term ‘Member State’ in the EU SCCs will not be interpreted in such a way as to exclude Data Subjects who habitually reside in Switzerland from initiating legal proceedings in Switzerland in accordance with Clause 18(c) of the EU SCCs; and (iv) references to the ‘GDPR’ in the EU SCCs will be understood as references to the Swiss Federal Act on Data Protection insofar as the transfer of Customer Personal Data is subject to the Swiss Federal Act on Data Protection.
3.4. With respect to transfers from Customer to Traceable of Customer Personal Data originating from the United Kingdom, the parties agree to comply with the UK SCCs, which are incorporated herein by reference. The parties agree that, for the UK SCCs: (i) Customer is the “data exporter”, and Traceable is the “data importer”; (ii) all references to the “Directive 95/46/EC” and its provisions shall be deemed to refer to the relevant provisions of the UK GDPR and the Data Protection Act 2018 of the United Kingdom; (iii) all references to the “Commission” shall be deemed to refer to the Information Commissioner; (iv) all references to the “European Economic Area” or the “European Union” shall be deemed to refer to the United Kingdom; (v) for Appendix 1 to the UK SCCs, information about the exporter and importer, the categories of Data Subjects, types of Personal Data and type of Processing operations are as set out in Schedule 1 to this DPA; and (vi) for Appendix 2 to the UK SCCs, the security measures are as described in Schedule 2. The parties acknowledge that the Information Commissioner’s Office has not yet approved new standard contractual clauses under the UK GDPR. The UK SCCs will apply only until such time as the Information Commissioner’s Office issues new standard contractual clauses under the UK GDPR. If the Information Commissioner’s Office approves the EU SCCs for transfers from the UK, the parties agree to adopt the EU SCCS as the mechanism to legitimize such transfers. Where necessary, the parties shall work together, in good faith, to enter into an updated version of the UK SCCs or negotiate an alternative solution to enable transfers of Customer Personal Data in compliance with Data Protection Laws.
4. Confidentiality and Security
4.1. Traceable will require Traceable’s personnel who access Customer Personal Data to commit to protect the confidentiality of Customer Personal Data.
4.2. Traceable will implement commercially reasonable technical and organizational measures, as further described in Schedule 2, that are designed to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data.
4.3. To the extent required by Data Protection Laws, Traceable will provide Customer with reasonable assistance as necessary for the fulfillment of Customer’s obligations under Data Protection Laws to maintain the security of Customer Personal Data.
5. Sub-Processing
5.1. Customer agrees that Traceable may engage Sub-Processors to Process Customer Personal Data on Customer’s behalf. Including by updating the list at traceable2024.wpengine.com/legal/subprocessors. Traceable will inform Customer of any intended changes concerning the addition or replacement of Sub-Processors and Customer will have an opportunity to object to such changes on reasonable grounds within seven days after being notified. If the parties are unable to resolve such good faith objection, either party may terminate the Agreement by providing thirty (30) days’ written notice to the other party.
5.2. Traceable will impose on its Sub-Processors substantially the same obligations that apply to Traceable under this DPA. Traceable will be liable to Customer for breaches of its Sub-Processors’ obligations as it would be for its own.
5.3. The parties agree that the copies of the Authorized Sub-Processor agreements that must be provided by Traceable to Customer pursuant to Clause 9(c) of the EU SCCs and Clause 5 of the UK SCCs, if applicable, may have commercial information or clauses unrelated to the EU or UK SCCs removed by Traceable beforehand; and, that such copies will be provided by Traceable, in a manner to be determined in its discretion, only upon Customer’s written request.
6. Data Subject Rights
Customer is responsible for responding to any Data Subject requests relating to Customer Personal Data (“Requests”). If Traceable receives any Requests during the term, Traceable will advise the Data Subject to submit the request directly to Customer or the appropriate Controller. Traceable will provide Customer with self-service functionality or other reasonable assistance to permit Customer to respond to Requests.
7. Personal Data Breaches
Upon becoming aware of a Personal Data Breach affecting Customer Personal Data, Traceable will (i) promptly take measures designed to remediate the Personal Data Breach and (ii) notify Customer without undue delay. Customer is solely responsible for complying with Personal Data Breach notification requirements applicable to Customer. At Customer’s request, Traceable will reasonably assist Customer’s efforts to notify Personal Data Breaches to the competent data protection authorities and/or affected Data Subjects, if Customer is required to do so under the Data Protection Laws. Traceable’s notice of or response to a Personal Data Breach under this Section 7 will not be an acknowledgement or admission by Traceable of any fault or liability with respect to the Personal Data Breach.
8. Data Protection Impact Assessment; Prior Consultation
Taking into account the nature of the Processing and the information available to Traceable, Traceable will reasonably assist Customer in conducting data protection impact assessments and consultation with data protection authorities if Customer is required to engage in such activities under applicable Data Protection Laws and such assistance is necessary and relates to the Processing by Traceable of Customer Personal Data.
9. Deletion of Customer Personal Data
Customer instructs Traceable to delete Customer Personal Data within 90 days of the termination of the Agreement and delete existing copies unless applicable law requires otherwise. The parties agree that the certification of deletion described in Clause 8.5 of the EU SCCs and Clause 12 of the UK SCCs, if applicable, shall be provided only upon Customer’s written request. Notwithstanding the foregoing, Traceable may retain Customer Personal Data to the extent and for the period required by applicable laws provided that Traceable maintains the confidentiality of all such Customer Personal Data and Processes such Customer Personal Data only as necessary for the purpose(s) specified in the applicable laws requiring its storage.
10. Audits
10.1. Customer may audit Traceable’s compliance with its obligations under this DPA up to once per year. In addition, Customer may perform more frequent audits (including inspections) in the event: (1) Traceable suffers a Personal Data Breach affecting Customer Personal Data; (2) Customer has genuine, documented concerns regarding Traceable’s compliance with this DPA or the Data Protection Laws; or (3) where required by the Data Protection Laws, including where mandated by regulatory or governmental authorities with jurisdiction over Customer Personal Data. Traceable will contribute to such audits by providing Customer or Customer’s regulatory or governmental authority with the information and assistance reasonably necessary to conduct the audit, including any relevant records of Processing activities applicable to the Service, as described below.
10.2. To request an audit, Customer must submit a detailed proposed audit plan to legal@traceable.ai at least sixty days in advance of the proposed audit start date. The proposed audit plan must describe the proposed scope, duration, start date of the audit, and the identity of any third party Customer intends to appoint to perform the audit. Traceable will review the proposed audit plan and provide Customer with any concerns or questions (for example, Traceable may object to the third party auditor as described in Section 10.3, provide an Audit Report as described in Section 10.4, or identify any requests for information that could compromise Traceable confidentiality obligations or security, privacy, employment or other relevant policies). The parties will negotiate in good faith to agree on a final audit plan at least two weeks in advance of the proposed audit start date. Nothing in this Section 10 shall require Traceable to breach any duties of confidentiality.
10.3. Traceable may object to third party auditors that are, in Traceable’s reasonable opinion, not suitably qualified or independent, a competitor of Traceable, or otherwise manifestly unsuitable. Customer will appoint another auditor or conduct the audit itself if the parties cannot resolve the objection after negotiating in good faith.
10.4. If the requested audit scope is addressed in an SSAE 16/ISAE 3402 Type 2, ISO, NIST or similar audit report performed by a qualified third party auditor on Traceable’s systems that Process Customer Personal Data (“Audit Reports”) within twelve (12) months of Customer’s audit request and Traceable confirms there are no known material changes in the controls audited, Customer agrees to accept the Audit Report in lieu of requesting an audit of the controls covered by the Audit Report.
10.5. The audit must be conducted at a mutually agreeable time during regular business hours at the applicable facility, subject to the agreed final audit plan and Traceable’s health and safety or other relevant policies and may not unreasonably interfere with Traceable business activities.
10.6. Any audits are at Customer’s expense and Customer will promptly disclose to Traceable any perceived non-compliance or security concerns discovered during the audit, together with all relevant details.
10.7. The parties agree that the audits described in Clause 8.9 of the EU SCCs and Clause 5(f) of the UK SCCs, if applicable, shall be performed in accordance with this Section 10.
11. Analytics Data
Customer acknowledges and agrees that Traceable may create and derive from Processing related to the Service anonymized and/or aggregated data that does not identify or relate to Customer or any Data Subject (“Analytics Data”), and use, publicize or share with third parties such Analytics Data to improve the Service and for Traceable’s other legitimate business purposes.
12. Liability
12.1. Each party’s liability towards the other party under or in connection with this DPA will be limited in accordance with the provisions of the Agreement.
12.2. Customer acknowledges that Traceable is reliant on Customer for direction as to the extent to which Traceable is entitled to Process Customer Personal Data on behalf of Customer in performance of the Service. Consequently, Traceable will not be liable under the Agreement for any claim brought by a Data Subject arising from (a) any action or omission by Traceable in compliance with Customer’s instructions or (b) from Customer’s failure to comply with its obligations under the Data Protection Laws.
13. General Provisions
With regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and the Agreement, the provisions of this DPA shall prevail. In the event of inconsistencies between the DPA and the EU or UK SCCs, the EU OR UK SCCs will prevail.
SCHEDULE 1
Details of Processing
1. Categories of Data Subjects. This DPA applies to Traceable’s Processing of Customer Personal Data relating to Customer’s employees, contractors, and other authorized users of the Service together with Customer’s customers, where such data are not explicitly redacted or obfuscated by Customer (“Data Subjects”).
2. Types of Personal Data. The extent of Customer Personal Data Processed by Traceable is determined and controlled by Customer in its sole discretion and may include, email addresses, postal addresses, billing details, product information, order information, and any other Personal Data that may be part of API requests and responses in connection with the Service that are not explicitly redacted or obfuscated by Customer.
3. Subject-Matter and Nature of the Processing. Customer Personal Data will be subject to the Processing activities that Traceable needs to perform in order to provide the Service pursuant to the Agreement.
4. Purpose of the Processing. Traceable will Process Customer Personal Data for purposes of providing the Service as set out in the Agreement.
5. Duration of the Processing. Customer Personal Data will be Processed for the duration of the Agreement, subject to Section 9 of the DPA.
SCHEDULE 2
Security Measures
1. Information Security Program.
Traceable will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) help Customer secure Customer Data against accidental or unlawful loss, access or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the Traceable Network, and (c) minimize security risks, including through risk assessment and regular testing. Traceable will designate one or more employees to coordinate and be accountable for the information security program. The data processing is conducted utilizing the public cloud resources of the Google Cloud Platform which certifies the compliance and controls to include security and privacy with regards to Network Security, Physical Access Control, Limited human facility access and Physical Security Protections. All the Google facilities that are utilized by the Traceable are certified against ISO 27001 and 27017 standards.
https://services.google.com/fh/files/misc/fall2022_google_common_infrastructure_iso_27001.pdf
2. Continued Evaluation.
Traceable will conduct periodic reviews of the security of its platform provider and adequacy of its information security program as measured against industry security standards and its policies and procedures. Traceable will continually evaluate the security of its platform provider and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.