UNTANGLE INC.

DATA PROTECTION ADDENDUM

This Data Protection Addendum (“Addendum”) forms part of the Untangle End User License Agreement into which it is incorporated by reference (the “Agreement”) between the person, Licensee or entity (“Customer”) and Untangle, Inc. (“Untangle”) (each, a “Party” and collectively, the “Parties”).

1. Subject Matter and Duration.

  1. Subject Matter. This Addendum reflects the Parties’ commitment to abide by Data Protection Laws concerning the Processing of Personal Data in connection with the Parties’ execution and performance of the Agreement. If and to the extent language in this Addendum conflicts with the Agreement, this Addendum shall control.
  2. Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement or upon the date that the Parties sign this Addendum if it is executed after the effective date of the Agreement. Untangle will Process Personal Data in accordance with this Addendum until the Agreement is terminated or expires.

2. Definitions.

For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.

  1. "Data Protection Laws" means all applicable data privacy, data protection, and cybersecurity laws and regulations to which the Processing of Personal Data is subject. “Data Protection Laws” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) and the EU General Data Protection Regulation 2016/679 (“GDPR”).
  2. "Personal Data" means any data provided, uploaded, or submitted by Customer to the Services in the course of using the Services or to Untangle in connection with Customer’s use of the Services that is “personal data” or “personal information” under applicable Data Protection Laws. The types of Personal Data and the specific uses of the Personal Data are detailed in Exhibit A attached hereto.
  3. "Process" or "Processing" means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
  4. "Security Incident(s)" means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
  5. "Services" means the services that Untangle performs under the Agreement.
  6. "Standard Contractual Clauses" means (i) for transfers of Personal Data from the EU, the Standard Contractual Clauses adopted by the European Commission pursuant to its Implementing Decision (EU) 2021/914 of 4 June 2021 attached hereto as Exhibit B (including all modules governing controller to processor transfers of personal data) or any such clauses amending, replacing or superseding those by a European Commission decision or by a legally binding decision made by any other authorized body, and (ii) for transfers of Personal Data from the United Kingdom, the Standard Contractual Clauses for controllers to processors published by the UK Information Commissioner’s Office (“ICO”) at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-transfers-after-uk-exit/sccs-after-transition-period/, or such successor Standard Contractual Clauses as are published by ICO.
  7. "Subprocessor(s)" means Untangle’s authorized vendors and third-party service providers that Process Personal Data on behalf of Untangle.

3. Personal Data Use and Processing.

  1. Roles of the Parties. The Parties acknowledge and agree that with regard to the Processing of Personal Data for the provision of the Services, (i) Customer is the Controller and Untangle is the Processor as defined under the GDPR, and (ii) Untangle is a Service Provider to Customer as defined under the CCPA.
  2. Documented Instructions. Untangle shall Process Personal Data in accordance with the Agreement, this Addendum, any applicable Statement of Work(s), and Customer’s documented instructions. Untangle will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Personal Data in a manner that is inconsistent with Customer’s instructions.
  3. Confidentiality. Any person authorized to Process Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
  4. CCPA Compliance. As a Service Provider to Customer under the CCPA, Untangle (i) shall not sell Personal Data as the term "sell" is defined by the CCPA, and (ii) shall not collect, retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the Services specified in the Agreement, including collecting, retaining, using, or disclosing Personal Data for any commercial purposes (as defined in the CCPA) other than providing the Services specified in the Agreement, except as otherwise permitted under the CCPA.
  5. Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Untangle agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgment, the type of Processing performed by Untangle requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
  6. Demonstrable Compliance. Untangle agrees to provide all information reasonably necessary to demonstrate compliance with the obligations set forth in this Addendum upon Customer’s reasonable request.
  7. Customer Responsibilities. Customer will, in its use of the Services, process Personal Data in accordance with the requirements of applicable Data Protection Laws. For the avoidance of doubt, Customer’s instructions to Untangle for the processing of Personal Data will comply with applicable Data Protection Laws. Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data and for ensuring that the Personal Data was lawfully acquired by Customer (including any authorizations or consents if required). Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to Untangle so that Untangle and its Subprocessors may lawfully use, process and transfer the Personal Data in accordance with this Addendum and the Agreement on Customer’s behalf as a Processor.

4. Rights of Data Subjects.

  1. Notification of Data Subject Request. Untangle shall, to the extent legally permitted, promptly notify Customer in writing if Untangle receives a request from a data subject to exercise the data subject’s right of access, right to rectification, restriction of processing, erasure (“right to be forgotten”), data portability, objection to the processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
  2. Assistance to Customer. Taking into account the nature of the processing, Untangle shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under applicable Data Protection Laws. To the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Untangle shall upon Customer’s request provide commercially reasonable assistance to Customer in responding to such Data Subject Request, to the extent Untangle is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Laws. To the extent legally permitted, Customer shall be responsible for any reasonable costs that Untangle may incur in providing such assistance.

5. Cross-Border Transfers of Personal Data.

  1. Authorization for Cross-Border Transfers. Customer authorizes Untangle to transfer Personal Data across international borders, including from the European Economic Area (“EEA”), Switzerland, and/or the United Kingdom to the United States, as reasonably necessary to provide the Services.
  2. Standard contractual Clauses. The Standard Contractual Clauses will apply to all processing of Personal Data by Untangle where the Personal Data is transferred from the EEA, Switzerland, or the United Kingdom to outside the EEA, Switzerland, or the United Kingdom, from a Data Exporter acting as Controller to a Data Importer acting as Processor, to any country or recipient: (a) not recognized by the European Commission as providing an adequate level of protection for Personal Data (as described in the Data Protection Laws), and (b) not covered by a suitable framework recognized by the relevant authorities or courts as providing an adequate level of protection for Personal Data.
  3. Requirements of Data Protection Laws Untangle will abide by the requirements of the Data Protection Laws regarding the collection, use, transfer, retention, and other processing of Personal Data from the EEA, Switzerland and United Kingdom, including, without limitation, completing any required prior assessments. All transfers of Personal Data to a third country or an international organization will be subject to appropriate safeguards as described in Article 46 of the GDPR and such transfers and safeguards will be documented according to Article 30(2) of the GDPR. Untangle agrees to notify Customer if it makes a determination that a change in the Data Protection Laws is likely to have a substantial adverse effect on the warranties and obligations provided under the Standard Contractual Clauses. In such event, Untangle will work with Customer to find a mutually agreeable solution. To the extent that there are any further measures that are legally required by relevant Data Protection Laws to be implemented by Untangle to ensure ongoing compliance with the Standard Contractual Clauses, Untangle shall implement such measures within a reasonable time.

6. Subprocessors.

  1. Subprocessing. The Parties acknowledge that applicable Data Protection Laws permit a Controller to provide the Processor a general written authorization to subprocessing. Accordingly, Customer provides a general authorization to Untangle, pursuant to Clause 11 of the Standard Contractual Clauses and Article 28(2) and (4) of the GDPR, to engage Subprocessors to enable Untangle to fulfill its contractual obligations under the Agreement and to provide support services on Untangle’s behalf, subject to compliance with the requirements in this Section. For purposes of clarity, Subprocessors may include Untangle affiliates. The Parties agree that copies of any Subprocessor agreements that are provided by Untangle to Customer pursuant to Clause 5(j) of the Standard Contractual Clauses may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent, removed by Untangle beforehand. Such copies will be provided by Untangle, in a manner to be determined in its discretion, upon written request by Customer.
  2. Subprocessor Agreements. Untangle will: (a) enter into a written agreement in accordance with the requirements of Article 28(4) of the GDPR with any Subprocessor that will process Personal Data; (b) ensure that each such written agreement contains terms that are no less protective of Personal Data than those contained in this Addendum; and (c) be liable for the acts and omissions of its Subprocessors to the same extent that Untangle would be liable if it were performing the services of each of those Subprocessors directly under the terms of this Addendum.
  3. Subprocessor List. Information regarding Untangle’s current Subprocessors, including their location and services provided (the “Subprocessor List”), is set forth in Annex III. This Subprocessor list may be updated by Untangle from time to time in accordance with subsection d) below.
  4. Changes to Subprocessor List. Untangle will provide Customer with advance notice before a new Subprocessor processes any Personal Data (which may be provided through email or other reasonable means). Customer may object to the new Subprocessor within fifteen (15) days of such notice on reasonable grounds relating to the protection of Personal Data. In such case, Untangle shall have the right to cure the objection through one of the following options: (1) Untangle will cancel its plans to use the Subprocessor with regards to processing Personal Data or will offer an alternative to provide the Services without such Subprocessor; or (2) Untangle will take the corrective steps requested by Customer in its objection notice and proceed to use the Subprocessor; or (3) Untangle may cease to provide, or Customer may agree not to use whether temporarily or permanently, the particular aspect or feature of the Services that would involve the use of such Subprocessor. If none of these options are commercially feasible, in Untangle’s reasonable judgment, and the objection(s) have not been resolved to the satisfaction of the Parties within thirty (30) days after Untangle’s receipt of Customer’s objection notice, then either Party may terminate the Agreement for cause and in such case, Customer will be refunded any prepaid fees for the applicable Services on a prorated basis. Such termination right is Customer’s sole and exclusive remedy if Customer objects to any new Subprocessor.

7. Information Security.

  1. Information Security Program. Untangle will implement and maintain an information security program (“Information Security Program”) that: (i) is consistent with industry standard practices, taking into consideration the sensitivity of the relevant Personal Data, and the nature and scope of the Services to be provided; (ii) includes reasonable administrative, technical and physical safeguards designed to protect Personal Data; and (iii) complies with Data Protection Laws. At a minimum, the Information Security Program shall include the Technical and Organizational Measures set forth in Annex II.

8. Security Incidents.

  1. Notice. Upon becoming aware of a Security Incident, Untangle agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer’s Designated POC. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
  2. Investigation and Remediation. Untangle will use reasonable efforts to investigate the Security Incident and remedy the risk of any further Security Incident in a timely manner.
  3. Root Cause Assessment and Mitigation Plan. Untangle will use reasonable efforts to deliver to Customer a root cause assessment and future incident mitigation plan with regard to the Security Incident.

9. Audits.

  1. Audits. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an inspection of Untangle’s policies, procedures, and records with respect to the Processing of Personal Data.
  2. Audit Requirements Any audit must be: (i) conducted during Untangle’s regular business hours; (ii) with reasonable advance written notice to Untangle; (iii) carried out in a manner that prevents unnecessary disruption to Untangle’s operations; (iv) subject to reasonable confidentiality procedures; and (v) subject to agreement between the Parties as to reasonable scope, time, duration, place and conditions for the audit, and a reasonable reimbursement rate payable by Customer to Untangle for Untangle’s audit expenses.

10. Data Return and Deletion.

  1. Data Return and Deletion. Within sixty (60) days of the expiry or termination of the Agreement, Untangle will deliver to Customer a copy of the Personal Data. Following the return of Personal Data to Customer, Untangle will delete all Personal Data in its possession or control (excluding any back-up or archival copies which shall be deleted in accordance with Untangle’s data retention schedule), except where Untangle is required to retain copies under applicable laws, in which case Untangle will isolate and protect that Personal Data from any further Processing except to the extent required by applicable laws.

11. Contact Information.

  1. Customer and Arista agree to designate points of contact for urgent privacy and security issues (“Designated POCs”). The Designated POCs are:

12. General.

  1. Liability. Any claims brought under this Addendum will be subject to the same terms and conditions, including the exclusions and limitations of liability, as are set out in the Agreement. Untangle’s liability to Customer under this Addendum will be limited to the same extent as Untangle’s liability to Customer under the Agreement. For the avoidance of doubt, the total liability of Untangle and its affiliates for all claims by Customer arising out of or related to the Agreement and this Addendum shall apply in aggregate for all claims under both the Agreement and this Addendum. In no event will either Party limit its liability with respect to any data subject rights under the Standard Contractual Clauses or the GDPR.
  2. Governing Law. Without prejudice to clause 7 (Mediation and Jurisdiction) and clause 9 (Governing Law) of the Standard Contractual Clauses: (i) the Parties to this Addendum hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this Addendum, including disputes regarding its existence, validity or termination or the consequences of its nullity; and (ii) this Addendum and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
  3. Changes in Data Protection Laws. Each Party may, by written notice to the other Party, propose to amend the appendices to the Standard Contractual Clauses or this Addendum as required as a result of any change in, or decision of a competent authority under, applicable Data Protection Laws, to allow processing of Personal Data to be done (or continue to be done) without breach of such Data Protection Laws. The Parties agree to make any such required amendment, which shall be in writing and signed by both Parties. To the extent necessary and applicable, Untangle shall notify all Subprocessors of such changes and, where necessary and as agreed by Untangle and the relevant Subprocessor, amend the relevant contracts with its Subprocessors to incorporate such changes within a reasonable amount of time.
  4. Counterparts. This Addendum may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument. This Addendum may be delivered by facsimile or electronic document format (e.g. PDF), and facsimile or electronic copies of executed signature pages will be binding as originals.
  5. Entire Agreement. This Addendum, together with the Agreement, constitutes the entire agreement between the Parties and supersedes any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning its subject matter. In case of conflict or inconsistency between this Addendum, the Agreement, and the Standard Contractual Clauses, the following order of precedence shall govern to the extent of the conflict or inconsistency: (i) the Standard Contractual Clauses; (ii) this Addendum; and (iii) the Agreement.
  6. Severability. . If any provision of this Addendum is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed, and the remainder of terms will remain in full effect.

Exhibit A

Personal Data

Subject Matter of Processing The subject matter of Processing is the Services pursuant to the Agreement.
Duration of Processing The Processing will continue until the expiration or termination of the Agreement.
Categories of Data Subjects Employees and other authorized users of Customer.
Nature and Purpose of Processing Nature: Processing as part of the Services ordered by Customer in the Agreement.
Purpose: The purpose of the Processing of Personal Data by Untangle is to provide the Services pursuant to the Agreement.
Types of Personal Data Personal Data provided by Customer to facilitate Untangle’s provision of the Services to Customer, including but not limited to: (i) user name; (ii) user email address, (iii) phone number, (iv) IP address.
Sensitive Data Not applicable

Exhibit B

Standard Contractual Clauses (Controller to Processor)

SECTION I

Clause 1

Purpose and scope

  1. 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 data to a third country.
  2. The parties:
    1. 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
    2. 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’).
  3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
  4. 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

  1. 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.
  2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Effect and invariability of the Clauses

  1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
    1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
    2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
    3. Clause 9(a), (c), (d) and (e);
    4. Clause 12(a), (d) and (f);
    5. Clause 13;
    6. Clause 15.1(c), (d) and (e);
    7. Clause 16(e);
    8. Clause 18(a) and (b).
  2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

  1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
  3. 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

  1. 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.
  2. 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.
  3. 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 organisational measures, to satisfy its obligations under these Clauses.

8.1 Instructions

  1. 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.
  2. 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 the 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

  1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised 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 pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, 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 organisational 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.
  2. 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.
  3. 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.
  4. 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:

  1. 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;
  2. 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;
  3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
  4. 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

  1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. The data importer has the data exporter’s general authorisation 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 10 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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

  1. 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.
  2. 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 organisational 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.
  3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

  1. 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.
  2. 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.
  3. 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:
    1. 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;
    2. refer the dispute to the competent courts within the meaning of Clause 18.
  4. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
  5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
  6. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

  1. [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, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] 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.
    [Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
  2. 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

  1. 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 authorising 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.
  2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
    1. 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;
    2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
    3. any relevant contractual, technical or organisational 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.
  3. 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.
  4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
  5. 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).
  6. 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 organisational 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

  1. 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:
    1. 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
    2. 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.
  2. 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.
  3. 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.).
  4. 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.
  5. 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 minimisation

  1. 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).
  2. 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.
  3. 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

  1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
  2. 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).
  3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
    1. 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;
    2. the data importer is in substantial or persistent breach of these Clauses; or
    3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
  4. 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.
  5. 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 France.

Clause 18

Choice of forum and jurisdiction

  1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
  2. The Parties agree that those shall be the courts of the EU Member State in which the data exporter is established.
  3. 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.
  4. The Parties agree to submit themselves to the jurisdiction of such courts.
    1. ANNEX I

      A. LIST OF PARTIES

      Data exporter:

      Name:Customer

      Activities relevant to the data transferred under these Clauses:

      Processing as part of the services ordered by Data Exporter pursuant to a services agreement.

      Role: Controller


      Data importer:

      Name: Untangle, Inc.

      Address: 25 Metro Drive, San Jose, CA 95110

      Contact person’s name, position, and contact details: Arista Data Privacy, dataprivacy@arista.com

      Activities relevant to the data transferred under these Clauses:

      Processing as part of the services ordered by Data Exporter pursuant to a services agreement.

      Role: Processor

      B. DESCRIPTION OF TRANSFER

      See Exhibit A (Personal Data) of the Data Protection Addendum.

      C. COMPETENT SUPERVISORY AUTHORITY

      The competent supervisory authority will be the Regulator in the EU Member State in which the data exporter is established.

      ANNEX II

      TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

      Personnel Security Awareness Tests

      • Phishing attempts of employees
      • File download via web and email
      • Frequency - semi-annual

      Network Policy Review

      • Review all active firewalls and network access rules
      • Review all cloud related network access rules
      • Frequency - quarterly

      Audit user accounts

      • Audit all internal systems
      • Audit all external systems
      • Frequency - quarterly/As user access changes

      • Brute force attack known user hashes
      • Brute force attack known user hashes

      2FA Authentication Required

      • All systems where sensitive user data is stored 2FA is required

      Log audit for sensitive information

      • Verify all production and develop logs are not storing sensitive user data

      Subscription notification service and review of relevant security vulnerability databases

      • Frequency – Daily/As Notified

      External network vulnerability scans

      • Scan all external/public facing resources
      • Frequency – Bi-Annual

      Internal network vulnerability scans

      • Scan all internal/private resources
      • Frequency – Bi-Annual

      Third Party Procedure, Management, Security Questionnaire

      • Answer questions to track and improve Company’s security posture
      • Frequency – Yearly

      PCI Compliance

      • Answer questions, accomplish tasks
      • Tasks checked quarterly, Certification completed annually

      Asset Management Policy

      Acceptable Use Policy

      General Password Policy

      Incident Response, business continuity and disaster recovery policy

      Data backup, retention and disposal policy

      Policy governing storage of data on mobile devices (corporate and personal)

      ANNEX IV

      LIST OF SUB-PROCESSORS

      Name of Sub-Processor Location Nature of Sub-Processing
      Amazon Web Services 410 Terry Ave North
      Seattle, WA 98109
      Hosting of Untangle’s Command Center cloud management portal
      Bitdefender SOS. Orhideelor NR. 15A
      Sectorul 6, Bucharest, Romania
      Anti-virus protection for Untangle NG Firewall
      IONOS Elgendorfer Strasse 57
      56400 Montabur Germany
      Hosting of Untangle’s Command Center cloud management portal for European customers
      Mailshell 695 5th St. #3
      San Francisco CA 94017
      Anti-phishing and Anti-spam services for Untangle NG Firewall
      Webroot 385 Interlocken Crescent #800
      Broomfield, CO 80021
      Web filtering and threat prevention services for Untangle NG Firewall and Untangle Micro Edge (formally SD-WAN Router)
      Zuora 101 Redwood Shores Parkway
      Redwood City, CA 94065
      Customer purchases of Untangle products directly from Untangle website