Data Processing Addendum
This DPA applies where, and to the extent that, Magnitude processes Personal Data on behalf of Customer when providing Services under the Agreement. The parties agree that this DPA shall replace any existing DPA or other data protection provisions the parties may have previously entered into in connection with the Services (as defined in the Agreement). Any capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.
- "Affiliate" means an entity that directly or indirectly controls, is controlled by or is under common Control with an entity. For purposes of this definition, "control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question.
- “California Personal Information” means Personal Data that is subject to the protection of the CCPA.
- "CCPA" means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).
- "Customer Data" means any Personal Data that is uploaded for storage or hosting that Magnitude processes on behalf of Customer in the course of providing the Services.
- "Data Controller" means an entity that determines the purposes and means of the processing of Personal Data.
- "Data Processor" means an entity that processes Personal Data on behalf of a Data Controller.
- "Data Protection Laws" means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement.
- "EEA" means the European Economic Area.
- "EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data ("Directive"); and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council 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) ("GDPR").
- "Model Clauses" means Annex A, the Standard Contractual Clauses for Data Processors as approved by the European Commission in Decision 2010/87/EU, attached to and forming part of this Addendum.
- "Personal Data" means any information relating to an identified or identifiable natural person.
- "Processing" has the meaning given to it in the GDPR and also includes any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
- "Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data.
- “Sell” or “Sale” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing or by electronic or other means, Customer Data to a third party for monetary or valuable consideration.
- "Services" has the meaning set forth in the Agreement.
- "Subprocessor" means any Data Processor engaged by Magnitude or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Subprocessors may include third parties or Affiliates of Magnitude.
- “UK Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR, the UK Data Protection Act 2018 and regulations made thereunder.
- “UK GDPR” has the meaning given to it in section 310 (as supplemented by section 205(4) of the UK Data Protection Act 2018
- Roles and Scope of Processing
- Role of the Parties. As between Magnitude and Customer, Customer is the Data Controller of Customer Data and Magnitude will process Customer Data only as a Data Processor acting on behalf of Customer.
- Customer Processing of Customer Data. Customer agrees that (i) it will comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to Magnitude; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary for Magnitude to process Customer Data pursuant to the Agreement and this DPA.
- Magnitude Processing of Customer Data. Magnitude will process Customer Data only (i) for the purpose of providing the Services and in accordance with Customer’s documented lawful instructions as set forth in the Agreement and this DPA; (ii) as part of the direct business relationship between Customer and Magnitude; (iii) on behalf of Customer and Magnitude’s other customers, to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity; or (iv) as required by law, provided Magnitude will inform Customer of such legal requirement prior to commencing such processing unless prohibited by law. The parties agree that the Customer’s complete and final instructions with regard to the nature and purposes of the processing are set out in this DPA.
- Details of Data Processing
- Subject matter. The subject matter of the data processing under this DPA is the Customer Data.
- Duration. As between Magnitude and Customer, the duration of the data processing under this DPA is the term of the Agreement.
- Purpose. The purpose of the data processing under this DPA is the provision of the Services to the Customer and the performance of Magnitude's obligations under the Agreement and this DPA (or as otherwise agreed by the Parties).
- Nature of the processing. The provision of a distributed event streaming platform which enables Customer to access data as real-time streams, and such other Services, as described in the Agreement.
- Categories of data subjects. The data subjects of Customer may include Customer’s end users, employees, contractors, suppliers, and other third parties.
- Types of Customer Data. Personal Data that is uploaded to the Services by the Customer.
- Authorized Subprocessors. Customer agrees that in order to provide the Services, Magnitude may engage Subprocessors to process Customer Data. Magnitude shall inform the Customer in advance of any proposed changes whereby such Subprocessors are added to or replaced.
- Subprocessor Obligations. Where Magnitude authorizes any Subprocessor:
- Magnitude will restrict the Subprocessors access to Customer Data only to what is necessary to assist Magnitude in providing or maintaining the Services, and will prohibit the Subprocessor from accessing Customer Data for any other purpose;
- Magnitude will enter or has already entered into a written agreement with the Subprocessor imposing data protection terms that require the Subprocessor to protect the Customer Data to the standard required by applicable Data Protection Laws and;
- Magnitude will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Subprocessor that cause Magnitude to breach any of its obligations under this DPA.
- Security Measures and Security Incident Response
- Security Measures. Magnitude has implemented and will maintain appropriate technical and organizational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data ("Security Measures"), as updated or replaced from time to time.
- Updates to Security Measures. Customer has carried out its own review of the information made available by Magnitude relating to data security and has made an independent determination that the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures are subject to technical progress and development and that Magnitude may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
- Personnel. Magnitude restricts its personnel from processing Customer Data without authorization by Magnitude as set forth in the Security Measures, and shall ensure that any person who is authorized by Magnitude to process Customer Data is under an appropriate obligation of confidentiality.
- Customer Responsibilities. Customer agrees that except as provided by this DPA, Customer is responsible for its secure use of the Services. Customer may elect to implement technical or organizational measures in relation to Customer Data, which may include (i) protecting account authentication credentials; (ii) protecting the security of Customer Data when in transit to and from the Services; (iii) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (iv) taking any appropriate steps to securely encrypt or pseudonymise any Customer Data uploaded to the Services.
- Security Incident Response. Upon becoming aware of a Security Incident, Magnitude will notify Customer without undue delay and will provide information relating to the Security Incident as it becomes known or as is reasonably requested by Customer. Magnitude will also take reasonable steps to mitigate and, where possible, to remedy the effects of, any Security Incident.
- Audit Reports
- Reports. Upon request, Magnitude will supply a summary copy of security audit report(s) ("Report") to Customer, which reports shall be subject to the confidentiality provisions of the Agreement. Magnitude will also respond to any written audit questions submitted to it by Customer provided that Customer shall not exercise this right more than once per year.
- Customer Audits. Customer agrees that Magnitude’s compliance with this Section shall fulfil any audit cooperation responsibilities that may apply to Magnitude under Data Protection Laws.
- International Transfers
- Data Center Locations. Magnitude may transfer and process Customer Data anywhere in the world where Magnitude, its Affiliates or its Subprocessors maintain data processing operations. Magnitude will at all times provide appropriate level of protection for the Customer Data processed, in accordance with the requirements of Data Protection Laws.
- Application of Model Clauses. The Model Clauses will apply, by incorporation into this DPA, to Customer Data that originates inside the European Economic Area (including United Kingdom) ("EEA"), and/or or Switzerland and that is transferred outside the EEA and/or Switzerland, either directly or via onward transfer, to any country not recognized by the European Commission as providing an appropriate level of protection for Personal Data (as described in the GDPR).
- Alternative Data Export Solutions. Notwithstanding the foregoing, the parties agree that in the event Magnitude adopts another alternative data export solution (as recognized under EU Data Protection Laws or in the case of exports from the UK under UK Data Protection Laws), then the alternative data export solution shall apply instead of the Model Clauses. In the event that the alternative data export solution is later determined to not constitute an adequate level of data protection under EU Data Protection Laws, the Model Clauses shall apply as the data export solution; similarly should such alternative data export solution later be determined not to constitute an adequate level of data protection under UK Data Protection Laws, the Model Clauses (or any equivalent recognized by UK Data Protection Laws) shall apply.
- Return or Deletion of Data
- General. Upon termination or expiration of the Agreement, Magnitude will (at Customer's election) delete or return to Customer all Customer Data in its possession or control in accordance with the terms of the Agreement.
- Exception. This requirement will not apply to the extent Magnitude is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Magnitude will securely isolate and protect from any further processing, except to the extent required by law.
- Access to Customer Data. To the extent that Customer is unable to independently access the relevant Customer Data within the Services and provided that Customer has configured the Services in accordance with Magnitude’s recommendations, Magnitude will (at Customer's expense) provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement when Customer is required to respond to such requests under applicable Data Protection Laws. In the event that any such request is made directly to Magnitude, Magnitude will not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Magnitude is required to respond to such a request, Magnitude will promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
- Law Enforcement Request. If a law enforcement agency sends Magnitude a demand for Customer Data (for example, through a subpoena or court order), Magnitude will attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Magnitude may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Data to a law enforcement agency, then Magnitude will give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Magnitude is legally prohibited from doing so.
- Legal Compliance. To the extent Magnitude is required under Data Protection Law, Magnitude will (at Customer's expense) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments and prior consultations with data protection authorities as required by law.
- Additional Provisions for California Personal Information
- Roles of the Parties. When processing California Personal Information in accordance with Customer’s Instructions, the parties acknowledge and agree that Customer is a “Business” and Magnitude is a “Service Provider“ for the purposes of, and as those terms are defined in, the CCPA.
- Responsibilities. The parties agree that Magnitude will Process California Personal Information as a “Service Provider” (as defined in the CCPA) strictly for the purpose of performing the Services under the Agreement or as otherwise permitted by the CCPA.
- Limitation of Liability. For the avoidance of doubt, any claim or remedies the Customer may have against Magnitude, any of its Affiliates and their respective employees, agents and subprocessors arising under or in connection with this DPA, including: (i) for breach of this DPA; (ii) as a result of fines (administrative, regulatory or otherwise) imposed upon Customer; and (iii) under EU Data Protection Law, including any claims relating to damages paid to a data subject, will be subject to any limitation of liability provisions (including any agreed aggregate financial cap) that apply under the Agreement. Customer further agrees that any regulatory penalties incurred by Magnitude in relation to the Customer Data that arise as a result of, or in connection with, Customer’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Magnitude’s liability under the Agreement as if it were liability to the Customer under the Agreement. Notwithstanding the foregoing, in no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
- Responsible Entity. Any claims against Magnitude or its Affiliates under this DPA shall be brought solely against the entity that is a party to the Agreement. No one other than a party to this DPA, their successors and permitted assignees shall have any right to enforce any of its terms.
- Compliance. To the extent reasonably necessary to comply with changes to applicable Data Protection Laws or in response to guidance or mandates issued by any court, regulatory body, or supervisory authority with jurisdiction over Magnitude, Magnitude may modify, amend, or supplement the terms of this DPA. Magnitude will endeavor to provide prior written notice of any such changes to Customer by posting a notice on Magnitude’s website.
- Governing Law. This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
- Permitted Disclosure. Customer acknowledges that Magnitude may disclose the privacy provisions in this DPA to the U.S. Department of Commerce, the Federal Trade Commission, a European Union supervisory authority, or any other U.S. or EEA (including UK) judicial or regulatory body upon their lawful request.
- Precedence. Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict. If there is any conflict between this DPA and the Model Clauses, then to the extent this DPA affords a data subject greater rights and protections than afforded under the Model Clauses, this DPA shall prevail; in all other situations (i.e. where the data subject is afforded equal or lesser rights and protections under this DPA) the Model Clauses shall prevail.
- Severability. The provisions of this DPA are severable. If any phrase, clause or provision is invalid or unenforceable in whole or in part, such invalidity or unenforceability shall affect only such phrase, clause or provision, and the rest of this DPA shall remain in full force and effect.
Annex A - Model Clauses
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection,
The Customer, as defined in the Agreement (the “data exporter”)
Magnitude Software, Inc. (the “data importer”)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
‘the data exporter’ means the controller who transfers the personal data;
‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
'the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorised access; and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses') and is subject to and incorporated into the Agreement.
Defined terms used in this Appendix 1 shall have the meaning given to them in the Agreement (including the DPA).
The data exporter is the legal entity specified as "Customer" in the DPA.
The data importer is Magnitude Software, Inc.
The Customer as the Data Exporter must list the data subjects in the Service Level Addendum (“SLA”) to the Agreement.
Categories of data
The Customer as the Data Exporter must list in the Service Level Addendum the categories of data that Customer expects to export.
Special categories of data (if appropriate)
The parties do not anticipate the transfer of special categories of data.
As set forth in the Service Level Addendum, as amended from time to time.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Standard Contractual Clauses (the 'Clauses').
Magnitude Security Provisions
Magnitude implements the following technical and organizational security measures to protect personal data and relevant operational processes.
Magnitude may obtain Customer data in many ways, including, Website interactions, marketing activities, support tickets, services engagements, order fulfilment processing, cluster performance monitoring services or the use of a Magnitude SaaS offering. All files submitted by our customers, regardless of how acquired are treated as customer confidential.
Magnitude aligns with the ISO 27001, Information Security Management Systems, and relevant National Institute of Standards and Technology (NIST) Standards to design, implement, monitor, and refine security and data handling controls. The following Sections detail our major security and data handling practices.
Protecting Customer Data
Privacy Polices and Certifications. Magnitude implements processes designed to help the company comply with applicable data privacy and security laws, including breach notification laws, state and federal privacy-related legislation, and national laws.
Access Management. Access management procedures define the request, approval, access provisioning and de-provisioning processes. The logical access procedures restrict user access (local or remote) based on user job function for applications and databases (role/profile based appropriate access) for applications, databases and systems to ensure segregation of duties and are reviewed, administered, and documented based on onboarding, resource re-assignment or separation.
Authorized Usernames, Passwords and Authentication. Magnitude monitors access rights to ensure access adheres to the least privilege principle commensurate with a user’s job responsibilities, logs access and security events. and uses software that enables rapid analysis of user activities. Magnitude passwords are administered in the following manner:
(a) Passwords are not shared
(b) Enterprise password management software is used to store passwords
(c) Initial password change is required
(d) Passwords must have minimum length and complexity and must be changed on a regular interval without reuse of recent previous passwords
(e) Magnitude passwords are encrypted and controlled via secure management and authentication practices including secure reset procedures.
Remote Access Administration. The following remote access settings are applicable:
(a) Unauthorized remote connections are disabled as part of standard configuration.
(b) The data flow in the remote connection is encrypted.
(c) Remote access accounts are managed through onboarding and offboarding processes.
Third Party Remote Access. Dependent third-party service provider (i.e., subcontractor) remote access adheres to the same or similar controls, and any subcontractor remote access has valid business justification.
Network Controls. Magnitude utilizes firewalls for access control between Magnitude’s networks and the Internet. Firewall access is restricted to a small set of administrators with appropriate authority. Firewalls are established with minimum rights necessary to accomplish tasks by role and access is authorized by specific policy. Periodic network vulnerability assessments are performed, and any critical vulnerabilities identified are promptly remediated. In addition, penetration tests are also performed by security professionals, both Magnitude employees and third parties.
Secure Data Transfer. Customer data is encrypted while in transit over any public network or wireless network via Transport Layer Security (TLS), Internet Protocol Security (IPSEC), and Secure File Transfer Protocol (SFTP). Magnitude utilizes an information protection and control solution that is designed and administered to minimize the accidental, negligent and malicious misuse of data through email and other communications aimed outside of Magnitude’s firewalls.
Secure Development Lifecycle Management. Magnitude maintains secure software development lifecycle practices to ensure security is built-in to our products and software. Secure development procedures require product classification based on risk rankings determined by use cases, application of static code analysis tools, and penetration testing.
Removable Media. Removable media is not in use for the delivery of Magnitude products and SaaS offerings.
Security Detection and Response. Magnitude maintains incident response playbooks created from event correlation and investigation tools, enabling the response to information security threats and incidents while containing and restoring normal service operations as quickly and effectively as possible.
Incident Response Plan. Magnitude maintains an incident response plan and crisis notification procedure designed to identify, categorize, remove, and remediate security incidents.