This Data Processing Agreement (“DPA”) forms part of, and is governed by the Terms and Conditions or any other agreement (“Agreement”) executed by and between Zesty Tech Ltd. and its affiliates (“Zesty”) and a Customer (“Customer”). Zesty and Customer shall each be referred to as “party” and collectively as “parties”.
All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
WHEREAS, Zesty is the developer and operator of a cloud-based software-as-a-service platform (“Platform”) offers cloud management and optimizations services to Customers, all as agreed by the parties in the applicable Order or other ordering documents that are referencing the Agreement (collectively the “Services”);
WHEREAS, the Services may require Zesty to Process Personal Data (as such terms are defined below) on Customer’s behalf, subject to the terms and conditions of this DPA; and
WHEREAS, the parties desire to supplement this DPA to achieve compliance with the UK, EU, Swiss, United States and other data protection laws and agree on the following:
1. DEFINITIONS:
- 1.1. “Adequate Country” is a country that received an adequacy decision from the European Commission.
- 1.2. “CCPA” means the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199) of 2018, including as modified by the California Privacy Rights Act (“CPRA”) as well as all regulations promulgated thereunder from time to time.
- 1.3. “CPA” means the Colorado Privacy Act C.R.S.A. § 6-1-1301 et (SB 21-190), including any implementing regulations and amendments thereto.
- 1.4. “CTDPA” means the Connecticut Data Privacy Act, S.B. 6 (Connecticut 2022), including any implementing regulations and amendments thereto.
- 1.5. “Customer Content” means Customer Content (as defined in the Agreement) containing Personal Data (or the equivalent term) Processed by Zesty in the course of its Services provision to Customer, all as detailed in Annex I attached herein.
- 1.6. The terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing” (and “Process”), “Processor”, “Special Categories of Personal Data” and “Supervisory Authority”, shall all have the same meanings as ascribed to them in the EU Data Protection Law and the S. Data Protection Laws. The terms “Business”, “Business Purpose”, “Consumer”, “Service Provider”, “Sale”, “Sell” and“Share”, shall all have the same meaning as ascribed to them in the U.S. Data Protection Laws. “Data Subject” shall also mean and refer to (under this DPA) a “Consumer”, as such term defined in the U.S. Data Protection Laws, and “Personal Data” shall include “Personal Information” under this DPA.
- 1.7. “Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law, UK Data Protection Laws, Swiss Data Protection Laws, Israeli Law and the U.S. Data Protection Laws) as may be amended or superseded from time to time.
- 1.8. “EEA” means the European Economic Area.
- 1.9. “EU Data Protection Law” means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) Regulation 2018/1725; (iii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iv) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); (v) any legislation replacing or updating any of the foregoing; and (vi) any judicial or administrative interpretation of any of the above, including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.
- 1.10. “Israeli Laws” means Israeli Privacy Protection Law, 5741-1981, the regulations promulgated pursuant thereto, including the Israeli Privacy Protection Regulations (Data Security), 5777-2017 and other related privacy regulations.
- 1.11. “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Content. Any Personal Data Breach will comprise a Security Incident.
- 1.12. “Standard Contractual Clauses” or “SCC” mean the standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council adopted by the European Commission Decision 2021/914 of 4 June 2021, which may be found here.
- 1.13. “Swiss Data Protection Laws” or “FADP” shall mean (i) Swiss Federal Data Protection Act (dated June 19, 1992, as of March 1, 2019) (“FDPA”); (ii) The Ordinance on the Federal Act on Data Protection (“FODP“); and (iii) any national data protection laws made under, pursuant to, replacing or succeeding and any legislation replacing or updating any of the foregoing.
- 1.14. “Swiss SCC” shall mean the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner.
- 1.15. “UCPA” means the Utah Consumer Privacy Act, Utah Code Ann. § 13-61-101 et seq.
- 1.16. “U.S. Data Protection Laws” means any U.S. federal and state privacy laws effective as of the Effective Date of this DPA and applies to Zesty Processing of Customer Content, and any implementing regulations and amendment thereto, including without limitation, the CCPA, the CPA, the CTDPA, the UCPA and the VCDPA.
- 1.17. ”UK Data Protection Laws” shall mean the Data Protection Act 2018 (DPA 2018), as amended, and EU General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as incorporated into UK law as the UK GDPR, as amended, and any other applicable UK data protection laws, or regulatory Codes of Conduct or other guidance that may be issued from time to time.
- 1.18. ”UK GDPR” shall mean the GDPR as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time).
- 1.19. “UK Standard Contractual Clauses” or “UK SCC” means the UK “International Data Transfer Addendum to The European Commission Standard Contractual Clauses” available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf as adopted, amended or updated by the UK Information Commissioner Office (“ICO”), Parliament or Secretary of State.
- 1.20. “VCDPA” means the Virginia Consumer Data Protection Act, Va. Code Ann. § 59.1-575 et seq. (SB 1392), including any implementing regulations and amendments thereto.
Any other terms that are not defined herein shall have the meaning provided under the Agreement or applicable Data Protection Laws. A reference to any term or section of the Data Protection Laws means the version as amended. Any references to the GDPR in this DPA shall mean the GDPR or UK GDPR depending on the applicable Law.
2. ROLES AND DETAILS OF PROCESSING
- 2.1. The parties agree and acknowledge that under the performance of their obligations set forth in the Agreement, with respect to the Processing of Customer Content, and according to the applicable Data Protection Laws, Zesty is acting as a Data Processor, or Service Provider and Customer is acting as a Data Controller or Business.
- 2.2. Each party shall be individually and separately responsible for complying with the obligations that apply to such party under applicable Data Protection Law.
- 2.3. The subject matter and duration of the Processing carried out by the Processor on behalf of the Controller, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described in Annex I attached hereto.
- 2.4. Additional U.S. Data Protection Laws specifications are further detailed in Annex VII.
3. REPRESENTATIONS AND WARRANTIES
- 3.1. Zesty represents and warrants that it shall Process Customer Content, on behalf of the Customer, solely for the purpose of providing the Service, all in accordance with Customer’s written instructions under the Agreement and this DPA. Notwithstanding the above, in the event Zesty is required under applicable laws, including Data Protection Law or any union or member state regulation, to Process Customer Content other than as instructed by Customer, Zesty shall make its best efforts to inform the Customer of such requirement prior to Processing such Customer Content, unless prohibited under applicable law.
- 3.2. Zesty shall provide reasonable cooperation and assistance to the Customer in ensuring compliance with its obligation to carry out data protection impact assessments.
- 3.3. Where applicable, Zesty shall assist the Customer in ensuring that Customer Content Processed is accurate and up to date, by informing the Customer without delay if it becomes aware of the fact that the Customer Content it is processing is inaccurate or has become outdated.
- 3.4. Zesty shall ensure: (i) the reliability of its staff and any other person acting under its supervision who may come into contact with, or otherwise have access to and Process Customer Content; and (ii) that persons authorized to Process the Customer Content have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- 3.5. Notwithstanding the above, in any event that the Israeli Law applies, the parties hereby undertake that they comply with the aforesaid regulations as well as comply with the DPA.
4. DATA SUBJECTS RIGHTS AND REQUEST
- 4.1. It is agreed that where Zesty receives a request from a Data Subject or an applicable authority in respect of Customer Content, where applicable, Zesty will notify the Customer of such request promptly and direct the Data Subject or the applicable authority to the Customer in order to enable the Customer to respond directly to the Data Subject’s or the applicable authority’s request, unless otherwise required under applicable laws.
- 4.2. Parties shall provide each other with commercially reasonable cooperation and assistance in relation to the handling of a Data Subject’s or applicable authority’s request, to the extent permitted under Data Protection Law.
5. SUB-PROCESSING
- 5.1. The Customer acknowledges that Zesty may transfer Customer Content to and otherwise interact with third party data Processors (“Sub-Processor”). The Customer hereby authorizes Zesty to engage and appoint such Sub-Processors as listed in Annex III, to Process Customer Content, as well as permits each Sub-Processor to appoint a Sub-Processor on its behalf. Zesty may continue to use those Sub-Processors already engaged by Zesty, as listed in Annex III, or to engage an additional or replace an existing Sub-Processors to Process Customer Content, subject to the provision of a thirty (30) days prior notice of its intention to do so to the Customer. In case the Customer has not objected to the adding or replacing of a Sub-Processor within such notice period, such Sub-Processor shall be deemed approved by the Customer. In the event the Customer objects to the adding or replacing of a Sub-Processor, within such notice period, Zesty may, under its sole discretion, suggest the engagement of a different Sub-Processor for the same course of services, or otherwise terminate the Agreement.
- 5.2. Zesty shall, where it engages any Sub-Processor, impose, through a legally binding contract between Zesty and the Sub-Processor, data protection obligations that are no less onerous than, and provide at least the same level of protection as, those set out in this DPA. Zesty shall ensure that such contract will require the Sub-Processor to provide sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of Data Protection Laws.
- 5.3. Zesty shall remain responsible to the Customer for the performance of the Sub-Processor’s obligations in accordance with this DPA. Zesty shall notify the Customer of any failure by the Sub-Processor to fulfill its contractual obligations.
6. TECHNICAL AND ORGANIZATIONAL MEASURES
- 6.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, and without prejudice to any other security standards agreed upon by the parties, Zesty hereby confirms that it has implemented and will maintain appropriate physical, technical and organizational measures to protect the Customer Content as required under Data Protection Laws to ensure lawful Processing of Customer Content and safeguard Customer Content from unauthorized, unlawful or accidental processing, access, disclosure, loss, alteration or destruction.
- 6.2. The parties acknowledge that security requirements are constantly changing and that effective security requires the frequent evaluation and regular improvement of outdated security measures.
- 6.3. The security measures implemented and maintained by Zesty are further detailed in Annex II.
7. SECURITY INCIDENT
- 7.1. Zesty will notify the Customer without undue delay upon becoming aware of any Security Incident involving the Customer Content. The notification regarding or response to a Security Incident under this Section 7 shall not be construed as an acknowledgment by Zesty of any fault or liability with respect to the Security Incident.
- 7.2. Zesty will: (i) take necessary steps to remediate, minimize any effects of and investigate any Security Incident and to identify its cause; (ii) co-operate with the Customer and provide the Customer with such assistance and information as it may reasonably require in connection with the containment, investigation, remediation or mitigation of the Security Incident; (iii) notify the Customer in writing of any request, inspection, audit or investigation by a Supervisory Authority or other authority; (iv) keep the Customer informed of all material developments in connection with the Security Incident and execute a response plan to address the Security Incident; and (v) co-operate with the Customer and assist Customer with its obligation to notify the affected individuals in the case of a Security Incident.
8. AUDIT RIGHTS
- 8.1. Zesty shall maintain accurate written records of any and all the Processing activities of any Customer Content carried out under this DPA and shall make such records available to the Customer and applicable Supervisory Authorities upon written request. Such records provided shall be considered Zesty’s Confidential Information and shall be subject to confidentiality obligations.
- 8.2. Customer may audit Zesty compliance with this DPA and Data Protection Laws by requesting a certificate issued for security verification reflecting the outcome of an audit conducted by a third party auditor (e.g., SOC2 certificate) or a comparable certification or other security certification of an audit conducted by a third-party auditor, within twelve (12) months as of the date of Customer’s request.
- 8.3. Alternatively, in the event the records and documentation provided subject to Section 8.1 and 8.2 above are not sufficient for the purpose of demonstrating compliance, Zesty shall make available, solely upon prior reasonable written notice and no more than once per calendar year, to a reputable auditor nominated by the Customer, information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor solely in relation to the Processing of the Customer Content (“Audit”) in accordance with the terms and conditions hereunder. The auditor shall be subject to standard confidentiality obligations (including towards third parties). Zesty may object to an auditor appointed by the Customer in the event Zesty reasonably believes the auditor is not suitably qualified or independent, is a competitor of Zesty. Customer shall bear all expenses related to the Audit and shall (and ensure that each of its auditors shall) over the course of such Audit, avoid causing any damage, injury or disruption to Zesty’ premises, equipment, personnel and business while its personnel are on those premises in the course of such Audit.
- 8.4. Nothing in this DPA will require Zesty to either disclose to Customer or its third-party auditor, or to allow Customer or its third-party auditor to access: (i) any data of any other Zesty’s customer; (ii) Zesty’s internal accounting or financial information; (iii) any trade secret of a Zesty or its Affiliates; (iv) any information that, in Zesty’s reasonable opinion, could compromise the security of any Zesty’s systems or cause any breach of its obligations under applicable law or its security or privacy obligations to any third party; or (v) any information that Customer or its third-party auditor seeks to access for any reason other than the good faith fulfillment of Customer’s obligations under the Data Protection Laws.
9. CROSS BORDER PERSONAL DATA TRANSFERS
- 9.1. Where the GDPR, UK GDPR or the Swiss FADP is applicable, and the Processing of Customer Content by Zesty (or by a Sub-Processor) includes transfer of Customer Content (either directly or through an onward transfer) to a third country outside the EEA, the UK and Switzerland that is not an Adequate Country, such transfer shall only occur if an appropriate safeguard approved by the applicable Data Protection Law (the GDPR (Article 46), UK GDPR (Article 46) or Swiss FADP (as applicable)) for the lawful transfer of Customer Content under is in place.
- 9.2. When Customer and Zesty, or Zesty and its Sub-Processor relies on the Standard Contractual Clauses to facilitate a transfer to a third country that is not an Adequate Country, then:
- 9.2.1. transfer of Customer Content from the EEA the terms set forth in Annex IV shall apply.
- 9.2.2. transfer of Customer Content from the UK, the terms set forth in Annex V shall apply; and
- 9.2.3. transfer of Customer Content from Switzerland, the terms set forth in Annex VI shall apply.
10. TERM, TERMINATION AND CONFLICT
- 10.1. This DPA shall be effective as of the Effective Date and shall remain in force until the Agreement terminates or as long as Zesty Processes Customer Content.
- 10.2. Zesty shall be entitled to terminate this DPA or cease the Processing of Customer Content in the event that Processing of Customer Content under the Customer’s instructions or this DPA infringe applicable legal requirements, provided Customer did not cure such infringement within ten (10) days from receiving applicable notice from Zesty. Alternately, Zesty may, in its sole discretion, suspend the Processing of the Customer Content until such infringement is cured without terminating the DPA.
- 10.3. Following the termination of this DPA, Zesty shall, at the choice of the Customer, delete all Customer Content Processed on behalf of the Customer and certify to the Customer that it has done so, or, return all Customer Content to the Customer and delete existing copies, unless applicable law or regulatory requirements requires that Zesty continue to store Customer Content. Until the Customer Content is deleted or returned, the parties shall continue to ensure compliance with this DPA. Customer’s choice shall be provided in writing to Zesty, following effect of termination.
- 10.4. In the event of a conflict between the terms and conditions of this DPA and the Agreement, this DPA shall prevail. For the avoidance of doubt, in the event Standard Contractual Clauses have been executed between the parties, the terms of the Standard Contractual Clauses shall prevail over those of this DPA. Except as set forth herein, all of the terms and conditions of the Agreement shall remain in full force and effect.
ANNEX I
DETAILS OF PROCESSING
This Annex I include certain details of the Processing of Personal Data as required under the Data Protection Laws.
Categories of Data Subjects:
Customer may submit Personal Data to the Service, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects: employees, agents, advisors, who use the Service and Platform, and any data subject which is included in the Customer Content.
Categories of Personal Data:
Credentials, contact information (email and name), cloud provider meta data (such as: names, types, locations and IP address, to the extent that it is considered personal information), and any Personal Data uploaded to the Platform by Customer.
Special Categories of Personal Data:
None. Unless otherwise determined by the parties.
Nature of the Processing:
Collection, storage, organization, communication, transfer, host and other types of Processing for the purpose of providing the Services as set out in the Agreement.
Purpose(s) of Processing:
To provide the Services.
Retention Period:
For as long as is it necessary to provide the Service by Zesty; provided there is no legal obligation to retain the Customer Content post termination or unless otherwise requested by the Customer.
Process Frequency:
Continuous basis.
ANNEX II
TECHNICAL AND ORGANIZATIONAL MEASURES
Zesty's Security Overview
The following description reviews the technical and organizational measures implemented by Zesty as a Processor of Customer Content, to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the Processing, and the risks for the rights and freedoms of natural persons.
Zesty’s Platform is built on Amazon Web Services (AWS) and based on a serverless architecture.
This allows Zesty to operate without managing traditional servers and databases. Zesty does not host or run its own routers, load balancers, DNS servers, or physical servers.
The security objectives of Zesty are identified and managed to maintain a high level of security and consists of the following (concerning all data assets and systems):
- Availability – information and associated assets should be accessible to authorized users when required. The computer network must be resilient. Zesty will detect and respond rapidly to incidents (such as viruses and other malware) that threaten the continued availability of assets, systems, and information.
- Confidentiality – ensuring that information is only accessible to those authorized to access it, on a need-to-know-basis.
- Integrity – safeguarding the accuracy and completeness of information and processing methods and therefore requires preventing deliberate or accidental, partial or complete, destruction, or unauthorized modification, of electronic data.
Description of the technical and organizational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the Processing, and the risks for the rights and freedoms of natural persons:
1. System Control
Access to the Zesty’s database is highly restricted in order to ensure that only the relevant personnel who have received prior approval can access the database. Zesty’s has also implemented appropriate safeguards related to remote access and wireless computing capabilities. Employees are required to choose unique and complex passwords that allow strict access or use to Personal Data, all in accordance with such employee’s position, and solely to the extent such access or use is required. There is constant monitoring of access to the Personal Data and the passwords used to gain access. Zesty is using automated tools to identify non-human login attempts and rate-limiting login attempts to minimize the risk of a brute force attack, in addition multi-factor authentication is enforced.
2. Data Access Control
User authentication measures have been put in place in order to ensure that access to Customer Content is restricted solely to those employees who have been given permission to access it and to ensure that the Customer Content is not accessed, modified, copied, used, transferred or deleted without specific authorization for such actions to be done. Any access to Customer Content, as well as any action performed involving the use of Customer Content requires a password and a second authentication factor, as well as blocked when applicable. Each employee is able to perform actions solely in accordance with the permissions granted to him by Zesty. Furthermore, Zesty conducts ongoing reviews of the employees who have been given authorization to access Customer Content, in order to assess whether such access is still required. Zesty revokes access to Customer Content immediately upon termination of employment.
3. Physical Access Control
Zesty recognizes the significance of physical security controls as a key component in its overall security program. Physical access methods, procedures and controls have been implemented to help prevent unauthorized access to data, assets and restricted areas. Processes are in place to remove access to physical resources when an individual no longer requires access. Physical Access to Zesty office does not provide any privileges to the production environment.
Zesty’s physical infrastructure is hosted on Amazon’s data centers and utilizes the AWS technologies. Amazon’s data center operations have been accredited under ISO 27001; SOC 1 and SOC 2/SSAE 16/ISAE 3402 (Previously SAS 70 Type II); PCI Level 1; FedRAMP; and Sarbanes-Oxley (SOX).
For more information on Amazon certification, please see link here.
4. Organizational and Operational Security
Zesty puts a lot of effort and invests a lot of resources into ensuring that Zesty’s security policies and practices are being complied with, including by continuously providing employees with training with respect to such security policies and practices. Zesty strives to raise awareness regarding the risks involved in the processing of Customer Content. In addition, Zesty has implemented applicable safeguards for its hardware and software, including by installing firewalls and anti-virus software on it applicable Zesty hardware and software, in order to protect against malicious software.
5. Availability Control
Zesty maintains backup policies and associated measures. Such backup policies include permanent monitoring of operational parameters as relevant to the backup operations. Furthermore, Zesty’s cloud deployment includes an automated backup procedure. Zesty ensures that regular checks are carried out to determine whether it is possible to recover from the backup, as required and applicable.
6. Penetration Testing
External penetration test is performed on an annual basis. The penetration tests include, among others, procedures to prevent customers, groups of individuals, or other entities from accessing confidential information other than their own. The penetration tests and security scans are performed by a reputable third-party vendor. In addition, Zesty conducts vulnerability scans designed to identify potential vulnerabilities or misconfigurations on a periodic basis and after any significant change in the environment. Actions are taken to remediate identified deficiencies on a timely basis. Vulnerability scans are performed using external tools, in order to detect potential security breaches.
7. Encryption
Zesty implements Encryption at rest of Customer Content as well as encryption in transit of all communication on and to the service, as well as communication between elements in the services. Zesty uses TLS encryption on our web assets to ensure the highest security and data protection standards. We regularly verify our security certificates and encryption algorithms to keep Customer Content safe. Learn more about Server-Side Encryption with Amazon S3-Managed Encryption Keys here.
Zesty does not store any private keys, passwords, or authentication tokens. The authentication is made based on the AWS Identity and Access Management (IAM) Cross Account role along with Google Workspace ID that provides a two-factor authentication.
8. Compliance and Certification
Zesty operations, policies and procedures are audited regularly to ensure Zesty meets all the Service Organization Control (SOC2) standards expected as a SaaS platform. Compliance certifications and attestations are assessed by a third-party, independent auditor and result in a certification, audit report, or attestation of compliance. Zesty’s systems and Services were audited and verified by such SOC2 compliance certification. Zesty is SOC2 certified.
Such certifications and audits are meant to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the Processing, and the risks for the rights and freedoms of natural persons are according to the System and Organization Controls 2 (SOC2) industry standard. Upon Customer request and subject to Customer’s confidentiality undertaking Zesty shall provide with the Customer with the SOC2 reports.
For more information regarding the SOC2, please see our SOC2 webpage in our blog here.
9. Additional Safeguards implemented by Zesty for Customer Content Transfers to the US:
Measures and assurances regarding U.S. government surveillance have been implemented by Zesty, and Zesty agrees and hereby represents it maintains the following additional safeguards:
- Zesty maintains industry standard measures to protect the Customer Content from interception (including in transit from Customer to Zesty and between different systems and services). This includes maintaining encryption in transit and at rest.
- As of the “Last Updated” date stated above, Zesty has not received any national security orders.
- No court has found Zesty to be: (i) the type of entity eligible to receive process issued under section 702 of the United States Foreign Intelligence Surveillance Court (“FISA”); (ii) an “electronic communication service provider” within the meaning of 50 U.S.C § 1881(b)(4) or a member of any of the categories of entities described within that definition.
- In the event that FISA applies to Zesty, Zesty will make reasonable efforts to resist, subject to applicable laws, any request for bulk surveillance relating to the Customer Content, including (if applicable) under Section 702 of the FISA.
- If Zesty becomes aware of any law enforcement agency or other governmental authority (“Authority”) attempt or demand to gain access to or receive a copy of the Customer Content (or part thereof), whether on a voluntary or a mandatory basis, then, unless legally prohibited or under a mandatory legal compulsion that requires otherwise, Zesty shall: (i) inform the relevant Authority that Zesty is a Processor of the Customer Content and that Customer, as the Controller, has not authorized Zesty to disclose the Customer Content to the Authority; (ii) inform the relevant Authority that any and all requests or demands for access to Customer Content should be directed to or served upon Customer in writing; and (iii) use reasonable legal mechanisms to challenge any such demand for access to Customer Content.
- Notwithstanding the above, if, taking into account the nature, scope, context and purposes of the related Authority’s intended access to Customer Content, Zesty has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual or entity, these subsections shall not apply. In such event, Zesty shall notify Customer, as soon as possible, following the access by the Authority, and provide Customer with relevant details, unless and to the extent legally prohibited to do so. Zesty will inform Customer, upon written request (and not more than once a year), of the types of binding legal demands for Customer Content Zesty has received and complied with, including demands under national security orders and directives, specifically including any process under Section 702 of FISA.
ANNEX III
List of Sub-Processors
Name | Processing region | Description of the processing | Transfer mechanism |
Amazon Web Services (AWS), Inc. | Ireland however the headquarters are located in Seattle, Washington, United States | Hosting | |
Google Cloud Platform LLC – currently not active | EU/US | Hosting | |
Microsoft Azure – currently not active | EU/US | Hosting | |
Salesforce (SFDC Ireland Limited.) | EU | CRM | |
Auth0, Inc. (Okta) | Processing region in EU, however, the Headquarters are located in the state of San Francisco, US | Authentication & authorization solution | SCC |
Slack Technologies, LLC | US | Internal communication tool for Support. | SCC |
NetSuite, Inc. | US | Payment Platform | Oracle Binding Corporate Rules |
ANNEX IV
EU INTERNATIONAL TRANSFERS AND SCC
1. The parties agree that the terms of the Standard Contractual Clauses are hereby incorporated by reference and shall apply to transfer of Customer Content from the EEA to other countries that are not deemed as Adequate Countries.
2. Module Two (Controller to Processor) of the Standard Contractual Clauses shall apply where the transfer is effectuated by Customer as the Controller of the Customer Content and Zesty is the Processor of the Customer Content.
3. The parties agree that for the purpose of transfer of Customer Content between Customer (as Data Exporter) and Zesty (as Data Importer), the following shall apply:
- a) Clause 7 of the Standard Contractual Clauses shall not be applicable.
- b) In Clause 9, option 2 (general written authorization) shall apply and the method for appointing and time period for prior notice of Sub-Processor changes shall be as set forth in the Sub-Processer Section of the DPA.
- c) In Clause 11, the optional language will not apply, and Data Subjects shall not be able to lodge a complaint with an independent dispute resolution body.
- d) In Clause 17, option 1 shall apply. The parties agree that the Standard Contractual Clauses shall be governed by the laws of the EU Member State in which the Customer is established (where applicable).
- e) In Clause 18(b) the parties choose the courts of the Republic of Ireland, as their choice of forum and jurisdiction.
4. Annex I.A of the Standard Contractual Clauses shall be completed as follows:
- 4.a.1. “Data Exporter“: Customer
- 4.a.2. “Data Importer“: Zesty
- 4.a.3. Roles: (A) With respect to Module Two: (i) Data Exporter is a Controller and (ii) the Data Importer is a Processor.
- 4.a.4. Data Exporter and Data Importer Contact details: As detailed in the Agreement.
- 4.a.5. Signature and Date: By entering into the Agreement and DPA, Data Exporter and Data Importer are deemed to have signed these Standard Contractual Clauses incorporated herein, including their Annexes, as of the Effective Date of the Agreement.
5. Annex I.B of the Standard Contractual Clauses shall be completed as follows:
- a) The purpose of the Processing, nature of the Processing, categories of Data Subjects, categories of Personal Data and the parties’ intention with respect to the transfer of special categories are as described in Annex I (Details of Processing) of this DPA.
- b) The frequency of the transfer and the retention period of the Personal Data is as described in Annex I (Details of Processing) of this DPA.
- c) The Sub-Processors which Personal Data is transferred to are listed in Annex III.
6. Annex I.C of the Standard Contractual Clauses shall be completed as follows: the competent supervisory authority in accordance with Clause 13 is the supervisory authority in the Member State stipulated in Section 3 above.
7. Annex II of this DPA (Technical and Organizational Measures) serves as Annex II of the Standard Contractual Clauses.
8. Annex III of this DPA (List of Sub-Processors) serves as Annex III of the Standard Contractual Clauses.
9. Transfers to the US: Measures and assurances regarding US government surveillance (“Additional Safeguards”) are further detailed in Annex II.
ANNEX V
UK INTERNATIONAL TRANSFERS AND SCC
1. The parties agree that the terms of the Standard Contractual Clauses as amended by the UK Standard Contractual Clauses, and as amended in this Annex V, are hereby incorporated by reference and shall apply to transfer of Customer Content from the UK to other countries that are not deemed as Adequate Countries.
2. This Annex V is intended to provide appropriate safeguards for the purposes of transfers of Customer Content to a third country in reliance on Article 46 of the UK GDPR and with respect to data transfers from Controller to Processor or from a Processor to its Sub-Processors.
3. Terms used in this Annex V that are defined in the Standard Contractual Clauses, shall have the same meaning as in the Standard Contractual Clauses.
4. This Annex V shall (i) be read and interpreted in the light of the provisions of UK Data Protection Laws, and so that if fulfils the intention for it to provide the appropriate safeguards as required by Article 46 of the UK GDPR, and (ii) not be interpreted in a way that conflicts with rights and obligations provided for in UK Data Protection Laws.
5. Amendments to the UK Standard Contractual Clauses:
- 5.1 Part 1: Tables
- 5.1.1. Table 1 Parties: shall be completed as set forth in Section 4 within Annex IV above.
- 5.1.2. Table 2 Selected SCCs, Modules and Selected Clauses: shall be completed as set forth in Section 2 and 3 within Annex IV above.
- 5.1.3. Table 3 Appendix Information:
- Annex 1A: List of Parties: shall be completed as set forth in Section 2 within Annex IV above.
- Annex 1B: Description of Transfer: shall be completed as set forth in Annex I above.
- Annex II: Technical and organizational measures including technical and organizational measures to ensure the security of the data: shall be completed as set forth in Annex II above.
- Annex III: List of Sub Processors: shall be completed as set forth in Annex III above.
- 5.1.4. Table 4 ending this Addendum when the Approved Addendum Changes: shall be completed as “neither party”.
ANNEX VI
SUPPLEMENTARY TERMS FOR SWISS DATA PROTECTION LAW TRANSFERS ONLY
The following terms supplement the Clauses only if and to the extent the Clauses apply with respect to data transfers subject to Swiss Data Protection Law, and specifically the FDPA:
- The term ’Member State’ will be interpreted in such a way as to allow Data Subjects in Switzerland to exercise their rights under the Clauses in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Clauses.
- The clauses in the DPA protect the Customer Content of legal entities until the entry into force of the upcoming revised FDPA.
- All references in this DPA to the GDPR should be understood as references to the FDPA insofar as the data transfers are subject to the FDPA.
- References to the “competent supervisory authority”, “competent courts” and “governing law” shall be interpreted as Swiss Data Protection Laws and Swiss Information Commissioner, the competent courts in Switzerland, and the laws of Switzerland (for Restricted Transfers from Switzerland).
- In respect of data transfers governed by Swiss Data Protection Laws, the EU SCCs will also apply to the transfer of information relating to an identified or identifiable legal entity where such information is protected similarly as Personal Data under Swiss Data Protection Laws until such laws are amended to no longer apply to a legal entity.
- The competent supervisory authority is the Swiss Federal Data Protection Information Commissioner.
ANNEX VII
U.S. DATA PROTECTION LAWS ADDENDUM
This U.S. Data Protection Laws Addendum (“U.S. Addendum”) adds specifications and applies to the extent Zesty Processes Customer Content under the U.S. Data Protection Laws. All terms used but not defined in this U.S. Addendum shall have the meaning set forth in the DPA.
1. CCPA Specifications:
- 1.1. For the purpose of the CCPA, Customer is the Business and Zesty is the Service Provider.
- 1.2. Zesty shall Process Customer Content on behalf of the Customer as a Service Provider under the CCPA and shall not: (i) Sell or Share the Customer Content; (ii) retain, use or disclose the Customer Content for any purpose other than for a Business Purpose specified in the Agreement; or (iii) combine the Customer Content with other Personal Data that it receives from, or on behalf of, another customer, or collects from its own interaction with California residents, expect as otherwise permitted by the CCPA.
- 1.3. If, and to the extent applicable, Zesty shall assist Customer in respect of a Consumer request to limit the use of its Sensitive Personal Information (“SPI”) by Zesty.
- 1.4. Zesty certifies that it understands the rules, requirements and definitions of the CCPA and agrees to refrain from Selling any Customer Content.
2. U.S. Applicable States Specifications:
- 2.1. For the purpose of this U.S. Addendum ”Applicable States” shall mean Virginia, California, Colorado, Utah and Connecticut.
- 2.2. Zesty agrees to notify the Customer if Zesty makes a determination that it can no longer meet its obligations under this U.S. Addendum or U.S. Data Protection.
- 2.3. Zesty shall provide information necessary to enable Customer to conduct and document any data protection assessments required by U.S. Data Protection Laws. Notwithstanding the above, Zesty is responsible for only the measures allocated to it.
- 2.4. Zesty shall provide assistance and procures that its subcontractors will provide assistance, as Customer may reasonably request, where and to the extent applicable, in connection with any obligation by Customer to respond to Consumer’s requests for exercising their rights under the U.S. Data Protection Laws. Including without limitation, by taking appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s respective obligation. Zesty acknowledges and confirms that it does not receive any monetary goods, payments or discounts in exchange for Processing the Customer Content.
- 2.5. Each party shall, taking into account the context of Processing, implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk. The parties are hereby establishing a clear allocation of the responsibilities between them to implement these measures. Zesty technical measures are detailed in the DPA and Annexes above.
- 2.6. The Processing instructions, including the nature of Processing, purpose of Processing, the duration of Processing, the type of Personal Data and categories of Data Subjects, are set forth in Annex I above.
- 2.7. Each party will comply with the requirements set forth under U.S. Data Protection Laws with regards to processing of de-identified data; as such term is defined under the applicable U.S. Data Protection Law.
3. When Processing Customer Content or Usage Data (as defined in the Agreement) for the permitted purposes under U.S. Data Protection Laws, Zesty shall ensure it complies with applicable laws and shall be liable for such Processing activities.
