*To the extent the GDPR, the UK GDPR, or the CCPA directly applies to SANS’ provision of Services under the Master Services and License Agreement, then (i) this DPA forms part of the Master Services and License Agreement, and (ii) this DPA is effective upon the effective date of the Master Services and License Agreement. *
Data Processing Agreement
Whereas:
A. In this DPA, SANS may be referred to as (SANS, Service Provider, We, Our) and You the Customer may be referred to as (You, Client, Your)
B. Client and Service Provider have entered into a written services agreement relative to Client’s procurement of Service Provider’s SANS Security Awareness training (the “License Agreement” or “Principal Agreement”) which involves Processing of Personal Data of Data Subjects subject to Applicable Data Protection Law in the context of the Services specified in the Principal Agreement (the “Services”).
C. Specific to the Principal Agreement, the Parties have agreed to enter into this Data Processing Agreement (“DPA”) which shall govern the Processing of Personal Data of Data Subjects subject to Applicable Data Protection Law in the context of the Services.
NOW, THEREFORE, the Parties agree as follows:
A. This DPA regulates the Processing of Personal Data of Data Subjects subject to Applicable Data Protection Law for the purposes (as defined in Exhibit B, Appendix 1 below) by the Parties in the context of the Services.
B. The Parties agree that the terms as set out below supersede and replace any conflicting privacy and data protection terms contained in the Principal Agreement pertaining to the Processing of Personal Data subject to Applicable Data Protection Law.
C. Appendices 1 and 2 form an integral part of this DPA.
D. Except as modified below, the terms of the Principal Agreement remain in full force and effect.
1. Definitions.
In this DPA, the following terms shall have the meanings set out below. Capitalized terms not otherwise defined herein have the meaning given to them in the Principal Agreement.
1.1. Controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
1.2. Data Subject means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.3. Applicable Data Protection Law means any data protection regulation that may apply in the context of the Agreement, including, where applicable, (i) the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) and the laws and regulations adopted to implement the GDPR and (ii) any other laws or regulations relating to the Processing of Personal Data
1.4. Personal Data means information relating to a Data Subject that is Processed by Service Provider for Client pursuant to the License Agreement and this DPA.
1.5. Personal Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed.
1.6. Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.7. Processor means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
2. Roles of the Parties.
Client and Service Provider agree that:
2.1. In the context of this DPA, Client acts as Controller, and appoints Service Provider as Processor for the Processing of Personal Data for providing the Services. In that context, Client, as Controller, has the sole and exclusive authority to, consistent with the Principal Agreement, determine the purposes and means of the Processing of Personal Data that are disclosed to and collected by Service Provider.
2.2. In its role as Processor, Service Provider shall:
2.2.1. comply with all applicable laws in the Processing of Personal Data;
2.2.2. not retain, use, or disclose any Personal Data for any purpose other than to perform services pursuant to the terms of the License Agreement and this DPA;
2.2.3. not retain, use, or disclose Personal Data for a commercial purpose other than providing the services specified in the License Agreement;
2.2.4. not share Personal Data with any additional parties without the prior written consent of Client; and
2.2.5. not otherwise Process Personal Data other than on Client’s documented instructions unless Processing is required by applicable laws to which Service Provider is subject, in which case Service Provider shall to the extent permitted by applicable laws inform Client of that legal requirement before the relevant Processing of that Personal Data.
2.3. Service Provider shall not retain, use, or disclose Personal Data except:
2.3.1. to Process Personal Data on behalf of Client pursuant to the terms of the License Agreement and this DPA;
2.3.2. to retain and employ another service provider as a subcontractor, where the subcontractor meets the requirements for a service provider under the General Data Protection Regulation 2016/679.;
2.3.3. for internal use to build or improve the quality of its services, provided that the use does not include building or modifying household or individual profiles to use in providing services to another business, or correcting or augmenting data acquired from another source;
2.3.4. to detect data security incidents, or protect against fraudulent or illegal activity;
2.3.5. as necessary to comply with applicable laws;
2.3.6. to comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities;
2.3.7. to cooperate with law enforcement agencies concerning conduct or activity that the service provider reasonably and in good faith believes may violate federal, state, or local law; or
2.3.8. to exercise or defend legal claims.
2.4. Should any person or authority conclude, deem, or assert that Service Provider is a joint Controller with Client, then the Parties agree that Client would maintain the sole and exclusive authority for interactions with the related Data Subjects, including and especially related to Articles 13 and 14 of the GDPR.
3. Service Provider’s obligations.
Service Provider agrees and warrants that it will:
3.1. notify Client, when any law or legal requirement prevents Service Provider (1) from fulfilling its obligations under this DPA or Data Protection Law, and/or (2) from complying with the instructions received from Client, via this DPA, unless such notification is prohibited by law or on important grounds of public interest. In both situations, Client is entitled to (i) suspend the Processing of Personal Data by Service Provider; (ii) terminate any further Personal Data Processing; and (iii) terminate this DPA, if doing so is required to comply with Applicable Data Protection Law.
3.2. within 48 (forty-eight) hours inform Client, in writing, as applicable to the Services and related to: (i) any Data Subjects’ requests to their rights of (a) access, (b) rectification, (c) erasure, (d) data portability, (e) restriction of Processing, (f) objection to the Processing; and (g) not being subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning them or similarly significantly affects them; (ii) any request or complaint received from Client, employees, or from any other individual related to this DPA; (iii) any question, complaint, investigation or other inquiries from Data Protection Authorities; and (iv) any public authority of whatever jurisdiction requesting disclosure of or information about the Personal Data that are Processed by Service Provider, unless such notification is prohibited by law. Service Provider agrees and warrants that it will provide Client with a copy of any such requests within 48 (forty-eight) hours and that it will not respond to that request except on the documented instructions of Client or as required by applicable laws to which Service Provider is subject, in which case Service Provider shall to the extent permitted by applicable laws inform Client of that legal requirement before Service Provider responds to the request. Taking into account the nature of the Processing, Service Provider will assist Client, by appropriate technical and organizational measures, insofar as this is possible, in fulfilling its obligations to respond to such requests.
3.3. cooperate with and assist Client to comply with and fulfill it its own obligations under Applicable Data Protection Law and this DPA, including: complying with Data Subjects’ requests to exercise their rights; replying to complaints from Data Subjects; replying to investigations and inquiries from supervisory authorities; and conducting data protection impact assessments and prior consultations with supervisory authorities.
3.4. upon termination of the Principal Agreement or upon request by Client (i) delete or return Personal Data, and (ii) comply with Client request to delete existing copies unless applicable law requires storage of the Personal Data (in which case Service Provider will protect the confidentiality of the Personal Data, will not actively Process the Personal Data anymore, and will continue to comply with this DPA).
4. Security of the Processing, Confidentiality, and Personal Data Breach Notification.
Service Provider agrees and warrants that:
4.1. it has implemented and maintains a written information security program that complies with Exhibit B Appendix 2 of this DPA, including appropriate technical and organizational measures to ensure a level of security appropriate to the risk, which includes, at a minimum, the security measures listed in Exhibit B Appendix 2 and as appropriate: (a) the pseudonymization and encryption of Personal Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of Processing systems and services; (c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing of Personal Data. In assessing the appropriate level of security, Service Provider must take into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing of Personal Data, as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and the risks that are presented by the Processing of Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed (“Information Security Program”).
4.2. Service Provider’s Information Security Program must, among other things, include regular testing or otherwise monitoring of the effectiveness of Service Provider’s information safeguards. Service Provider undertakes to notify Client of any technical, operational, organizational or other change having a material impact on the security, confidentiality or protection of Personal Data, no less than 15 (fifteen) working days prior to implementing any such change. Service Provider agrees to submit its Information Security Program to the Data Protection and Security Audit provided under Clause 7.
4.3. Service Provider must take steps to ensure that any person acting under its authority who has access to Personal Data is only granted access to Personal Data on a need-to-know basis, is subject to a duly enforceable contractual or statutory confidentiality obligation, and only Processes Personal Data in accordance with Client instructions.
4.4. as applicable to the provision of Services under this DPA, Service Provider will inform Client, in writing, without undue delay, and no later than 48 (forty-eight) hours after having become aware of a Personal Data Breach. Such notice will summarize in reasonable detail the effect on Client, if known, of the Personal Data Breach and the corrective action taken or to be taken by Service Provider. Service Provider shall assist Client in complying with its own obligations under Applicable Data Protection Law to include the notification of such Personal Data Breach. Service Provider will (i) promptly take all necessary corrective actions; (ii) cooperate fully with Client in all reasonable and lawful efforts to prevent, mitigate or rectify the effects of such Personal Data Breach; and (iii) be responsible for the costs and expenses associated with the performance of its obligations described in this paragraph, unless such Personal Data Breach is caused by the acts or omissions of Client.
4.5. except to the extent prohibited by applicable legal, regulatory, or law enforcement requirements, Service Provider must obtain the approval of Client, prior to the publication or communication of any filings, communications, notices, press releases, or reports related to such Personal Data Breach that expressly mention Client or its Affiliates.
5. International Data Transfers.
5.1. Service Provider agrees and warrants that it is prohibited from transferring Personal Data that is subject to EU or UK Applicable Data Protection Law outside of Europe and/or the UK except if it obtains the explicit written consent of Client and provided that the Personal Data are transferred to a country which has been considered to provide an adequate level of protection under EU or UK Applicable Data Protection Law or to a data recipient which has implemented adequate safeguards under EU or UK Applicable Data Protection Law such as approved Binding Corporate Rules or, Standard Contractual Clauses.
5.2. Absent the adequacy finding referred to in Clause 5.1, In situations where the Service Provider requires critical maintenance support from its parent company, the Escal Institute of Advanced Technologies Incorporated, based in the USA, the Parties will execute Standard Contractual Clauses, detailed in Exhibit B of this Agreement. The Standard Contractual Clauses will apply to Personal Data Processed by Service Provider in the context of the Services that are transferred outside of Europe, either directly or via an onward transfer, to any country not recognized by the European Commission as providing an adequate level of protection for Personal Data under Applicable Data Protection Law or to a recipient which has not implemented adequate safeguards under Applicable Data Protection Law.
6. Service Provider’s Sub-Processing.
6.1. notify Client, when any law or legal requirement prevents Service Provider (1) from fulfilling its obligations under this DPA or Data Protection Law, and/or (2) from complying with the instructions received from Client, via this DPA, unless such notification is prohibited by law or on important grounds of public interest. In both situations, Client is entitled to (i) suspend the Processing of Personal Data by Service Provider; (ii) terminate any further Personal Data Processing; and (iii) terminate this DPA, if doing so is required to comply with Applicable Data Protection Law.
6.2. within 48 (forty-eight) hours inform Client, in writing, as applicable to the Services and related to: (i) any Data Subjects’ requests to their rights of (a) access, (b) rectification, (c) erasure, (d) data portability, (e) restriction of Processing, (f) objection to the Processing; and (g) not being subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning them or similarly significantly affects them; (ii) any request or complaint received from Client, employees, or from any other individual related to this DPA; (iii) any question, complaint, investigation or other inquiries from Data Protection Authorities; and (iv) any public authority of whatever jurisdiction requesting disclosure of or information about the Personal Data that are Processed by Service Provider, unless such notification is prohibited by law. Service Provider agrees and warrants that it will provide Client with a copy of any such requests within 48 (forty-eight) hours and that it will not respond to that request except on the documented instructions of Client or as required by applicable laws to which Service Provider is subject, in which case Service Provider shall to the extent permitted by applicable laws inform Client of that legal requirement before Service Provider responds to the request. Taking into account the nature of the Processing, Service Provider will assist Client, by appropriate technical and organizational measures, insofar as this is possible, in fulfilling its obligations to respond to such requests.
6.3. cooperate with and assist Client to comply with and fulfill it its own obligations under Applicable Data Protection Law and this DPA, including: complying with Data Subjects’ requests to exercise their rights; replying to complaints from Data Subjects; replying to investigations and inquiries from supervisory authorities; and conducting data protection impact assessments and prior consultations with supervisory authorities.
6.4. upon termination of the Principal Agreement or upon request by Client (i) delete or return Personal Data, and (ii) comply with Client request to delete existing copies unless applicable law requires storage of the Personal Data (in which case Service Provider will protect the confidentiality of the Personal Data, will not actively Process the Personal Data anymore, and will continue to comply with this DPA).
7. Data Protection and Security Audit.
7.1. The Parties will mutually agree upon the scope, timing, and duration of the audit, and if necessary, on an independent third-party auditor, in which case Service Provider will make available to Client the result of the audit. Service Provider agrees to fully cooperate with such Data Protection and Security Audit and implement all commercially reasonable changes to its Information Security Program, data processing facilities, and data protection compliance program that, as a result of the Data Protection and Security Audit, are required to ensure Service Provider’s compliance with this DPA and Applicable Data Protection Law.
7.2. Upon request by Client and subject to reasonable discretion, Service Provider will make available to Client information necessary to demonstrate compliance with its obligations under this DPA, and allow Client (or an inspection body composed of independent members mutually selected by the Parties, and which possess the required professional qualifications) to audit and review Service Provider’s Information Security Program, data processing facilities, and data protection compliance program to verify compliance with this DPA and Applicable Data Protection Law (“Data Protection and Security Audit”).
7.3. Service Provider’s failure to allow or cooperate with a Data Protection and Security Audit or implement any legally required changes to the information security program shall entitle Client to: (i) suspend the Processing of Personal Data by Service Provider; (ii) terminate any further Personal Data Processing; and (iii) terminate this DPA, if doing so is required to comply with this DPA and Applicable Data Protection Law.
7.4. The Client shall bear the costs of any Data Protection and Security Audit.
8. Liability Towards Data Subject. The Parties agree that they will be held liable for violations of Applicable Data Protection Law towards Data Subjects as follows:
8.1. Service Provider will be liable for the damage caused by the Processing only where it has not complied with obligations of Applicable Data Protection Law specifically directed to Processors.
8.2. Client will be liable for the damage caused by the Processing only where it has not complied with obligations of Applicable Data Protection Law specifically directed to Controllers.
8.3. Client and/or Service Provider shall be exempt from liability under this Section 8 if it proves that it is not in any way responsible for the event giving rise to the damage.
9. Applicable Law and Jurisdiction. The Processing of Personal Data under this DPA is governed by the law of the United States and the state of Maryland, without regard to their conflicts of laws provisions. Any disputes between the Parties relating to the Processing of Personal Data under this DPA will be subject to the exclusive jurisdiction of the U.S. District Court for the District of Maryland, or if that court lacks subject matter jurisdiction, in the Montgomery County (Maryland) Circuit Court. Notwithstanding the foregoing, and only to the extent required by applicable EU or UK Applicable Data Protection Law, the Processing of Personal Data under this DPA shall be governed by EU or UK Data Protection Law, as applicable to the relevant data subjects, and any disputes between the Parties relating to the Processing of Personal Data under this DPA will be subject to exclusive jurisdiction in Dublin, Ireland (if an EU jurisdiction is required by the GDPR and any applicable European Union Member State laws implementing or supplementing the GDPR) or in London, England (if required by the UK GDPR or other UK domestic data protection law).
10. Modification of this Data Protection Agreement. This DPA may only be modified by a written amendment signed by each of the Parties.
11. Termination. The Parties agree that this DPA is terminated upon the termination of the Principal Agreement pursuant to which Service Provider obtained Personal Data from Client.
12. Notices. Except as provided below, notices provided under this DPA must be in writing and sent by facsimile or certified mail, return receipt requested or sent electronically to the email addresses listed below.
13. Invalidity and Severability. If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
Notices must be sent to:
If to Service Provider:
SANS Institute
Attn: Contracts Administration
11200 Rockville Pike, Suite 200
North Bethesda, MD 20852
With respect to notice to Client pursuant to Clause 4.4 hereof, notice shall be delivered to Client address Principal Agreement to the attention of the Legal Department.
EXHIBIT B: Model Clauses
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to Processor transfers)
Only applicable in situations where a transfer of personal data is required in accordance with clause 5.2. For the avoidance of doubt, consent will be obtained prior to any transfer.
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
BETWEEN
Client
hereinafter “data exporter”
and
The Escal Institute of Advanced Technologies, Inc. / dba SANS Institute
ATTN: Contracts Administration
11200 Rockville Pike, Suite 200
North Bethesda, MD 20852
FAX: 301-951-0140
EMAIL: ssagdprprivacy@sans.org
hereinafter “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
Purpose and scope
a. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
b. The Parties:
i. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
ii. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
c. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
d. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
a. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
b. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
a. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
i. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
ii. Clause 8 – Clause 8.1(b), 8.9(a), (c), (d) and (e);
iii. Clause 9 –Clause 9(a), (c), (d) and (e);
iv. Clause 12 –Clause 12(a), (d) and (f);
v. Clause 13;
vi. Clause 15.1(c), (d) and (e);
vii. Clause 16(e);
viii. Clause 18 –Clause 18(a) and (b).
b. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
a. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
b. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
c. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
Docking clause
a. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
b. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A
c. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organizational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
a. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
b. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
a. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organizational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymization, including during transmission where the purpose of processing can be fulfilled in that manner. In case of pseudonymization, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organizational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
b. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management, and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
d. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
i. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
ii. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
iii. the onward transfer is necessary for the establishment, exercise, or defense of legal claims in the context of specific administrative, regulatory, or judicial proceedings; or
iv. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
a. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
b. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
c. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
d. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
e. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
a. GENERAL WRITTEN AUTHORIZATION The data importer has the data exporter’s general authorization for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub- processors at least thirty (30) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
b. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third- party beneficiary rights for data subjects. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
c. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
d. The data importer shall remain fully responsible to the data exporter for the performance of the sub- processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
e. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
a. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
b. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organizational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
c. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
a. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
b. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
c. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
i. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
ii. refer the dispute to the competent courts within the meaning of Clause 18.
d. The Parties accept that the data subject may be represented by a not-for-profit body, organization or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
e. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
f. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
a. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
b. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
c. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
d. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
e. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
f. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
g. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
a. Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.]
Where the data exporter is not established in an EU Member State: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.]
b. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
a. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorizing access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
b. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
i. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
ii. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorizing access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
iii. any relevant contractual, technical, or organizational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
c. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
d. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
e. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
f. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g., technical or organizational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
a. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary, with the help of the data exporter) if it:
i. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
ii. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
b. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
c. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
d. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
e. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimization
a. The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
b. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
c. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
a. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
b. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
c. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
i. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
ii. the data importer is in substantial or persistent breach of these Clauses; or
iii. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
d. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
e. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of England and Wales.
Clause 18
Choice of forum and jurisdiction
a. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
b. The Parties agree that those shall be the courts of the England and Wales.
c. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
d. The Parties agree to submit themselves to the jurisdiction of such courts.
EXHIBIT B - APPENDIX 1
DESCRIPTION OF PROCESSING
This Appendix forms part of the Clauses and must be completed and signed by the parties
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 specify briefly your activities relevant to the transfer):
Client
Data importer
The data importer is (please specify briefly activities relevant to the transfer):
The Escal Institute of Advanced Technologies, Inc. /dba SANS Institute
11200 Rockville Pike, Suite 200
North Bethesda, MD 20852
Data subjects
The personal data transferred concern the following categories of data subjects (please specify):
- Employees of the Client
Categories of data
The personal data transferred concern the following categories of data (please specify):
- Contact details (unique learner number, first name, last name, and email address)
- Business contact information from other client personnel such as purchasing, billing/accounting and administrators.
- Optional additional information about learners provided by Client admins; there are fixed fields and user-defined fields
- Information attained during the execution of CBT training, answers to assessments and quizzes, and scores related to training materials.
- System access/usage/interaction/authorization data
Nature and Purpose of the Processing
- Service Provider will Process Personal Data for the purpose of providing the Services, as described in this DPA and the Principal Agreement.
- Purpose for processing is to allow System access, usage, interaction and authorization data
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):
Service Provider delivers Commercial Off The Shelf (COTS) Training Platforms, Tools, and Service Provider authored Computer Based Training (CBT) material. For Service Provider hosted platforms and tools, Service Provider receives, from Client, information regarding their personnel to be assigned training to include: (i) unique learner number, (ii) first name, (iii) last name, (iv) email address; (v) optional additional information about learners provided by Client admins; there are fixed fields and user-defined fields; and (vi) direction when to launch course. The learner platform then launches the course, allows for language selection, and maintains progress and completion information (launch date, time spent, progress, score, and satisfaction). Information relating to the Client learner’s launch and progress remains in the learner platforms for the duration of the Principal Agreement.
Recipients of Data
The personal data transferred may be disclosed only to the following recipients or categories of recipients
- Please note a full list of the Importers Sub Processors attached at XXXXX
Duration of the Processing
Service Provider will Process Personal Data only for as long as necessary to provide the Services and as permitted under the Principal Agreement and this DPA
EXHIBIT B - APPENDIX 2
SECURITY MEASURES
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):
1. Organizational management and dedicated staff responsible for the development, implementation, and maintenance of service provider’s information security program.
2. Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to the service provider’s organization, monitoring and maintaining compliance with policies and procedures, and reporting the condition of its information security and compliance to senior internal management.
3. Maintain Information security policies and make sure that policies and measures are regularly reviewed.
4. Communication with service provider’s applications utilizes cryptographic protocols such as TLS/SSL, SSH, or other encrypted protocols to protect information in transit over public networks. At the network edge equipment such as stateful firewalls, web application firewalls, and DDoS protection are used to filter attacks. Within the internal network, applications follow a multi-tiered model which provides the ability to apply security controls between each layer.
5. Data security controls which include logical segregation of data, restricted (e.g. role-based) access and monitoring, and where applicable, utilization of commercially available and industry-standard encryption technologies to protect data-at-rest
6. Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions, (e.g. granting access on a need-to-know and least privilege basis, use of unique IDs and passwords, Multi-factor Authentication (MFA), or Single Sign-On (SSO) for all users, periodic review and revoking/changing access promptly when employment terminates or changes in job functions occur).
7. Password controls designed to manage and control password strength, and usage including prohibiting users from sharing passwords.
8. System audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review.
9. Physical and environmental security of data center, server room facilities and other areas containing confidential information designed to: (i) protect information assets from unauthorized physical access, (ii) manage, monitor and log movement of persons into and out of service provider’s facilities, and (iii) guard against environmental hazards such as heat, fire and water damage.
10. Operational procedures and controls to provide for configuration, monitoring, and maintenance of technology and information systems according to prescribed internal and adopted industry standards, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from service provider’s possession.
11. Change management procedures and tracking mechanisms to test, approve and monitor all changes to service provider’s technology and information assets.
12. Incident / problem management procedures to allow service provider to investigate, respond to, mitigate and notify of events related to service provider’s technology and information assets.
13. Network security controls that provide for the use of enterprise firewalls and layered architectures, VPCs, and intrusion detection systems and other traffic and event correlation procedures designed to protect systems from intrusion and limit the scope of any successful attack.
14. Vulnerability assessment, patch management, and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate and protect against identified security threats, viruses and other malicious code.
15. Business resiliency/continuity and disaster recovery procedures, as appropriate, designed to maintain service and/or recovery from foreseeable emergency situations or disasters.
16. Security awareness training, information security training, and privacy awareness training for all employees on a regular basis.
EXHIBIT C
LIST OF SUB-PROCESSORS
Amazon AWS
AWS EU Frankfurt region
EU-Central-1