Data Processing Addendum
This Data Processing Addendum (“DPA”) is effective as of the date that the Customer procures Services from Infoblox (“Effective Date”), and forms part of any and all agreements, purchase orders, statements of work and other contractual documents between the parties (individually and collectively, the “Agreement”). This DPA is executed by Infoblox Inc. and/or and any associated affiliates providing Services to Customer (individually and collectively, “Infoblox” or “Service Provider”) and the customer and/or any associated affiliates procuring Services from Infoblox (individually and collectively, the “Customer”). This DPA applies to the extent that Service Provider receives, stores or processes Personal Data on behalf of Customer in connection with any Services. Infoblox and Customer are individually a “party” and, collectively, the “parties” to this DPA. The Agreement expressly incorporates this DPA. In the event of a conflict between this DPA and the Agreement, the Agreement shall control (except to the limited extent that DPA terms are required under applicable law, in which case the relevant terms in this DPA shall be amended to the Agreement). All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement.
The following terms have the meanings set forth below for purposes of the DPA only, and do not apply to the Agreement. Other terms may be defined inline in this DPA.
1.1 “Controller” means the entity that determines the purposes and means of the processing of Personal Data.
1.2 “Data Protection Law” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
1.3 “Data Subject” means the individual to whom Personal Data relates.
1.4 “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”); (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”); and (iii) Directive and GDPR as transposed into domestic legislation of each Member State.
1.5 “EU Model Clauses” means Attachment A incorporating the standard contractual clauses for Processors as approved by the European Commission pursuant to Decision C (2010)593.
1.6 “Personal Data” means any information relating to an identified or identifiable natural person that is submitted to Service Provider by Customer as part of the Services.
1.7 “Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
1.8 “Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not be automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
1.9 “Processor” means an entity that processes Personal Data on behalf of the Controller.
1.10 “Services” means, individually and collectively, any products, services or documentation provided by Service Provider to Customer under the Agreement.
1.11 “Subprocessor” means any Processor engaged by Service Provider or any member of its group of companies that processes Personal Data pursuant to the Agreement. A subprocessor may include third parties or any member of Service Provider’s group of companies (i.e., Service Provider affiliates).
2.1 Role of the Parties. The parties acknowledge and agree that with respect to Processing of Personal Data, Customer may act as the Controller or Processor and Service Provider may act as the Processor or Subprocessor.
2.2 Customer Processing of Personal Data. Customer will, in its use of the Services, comply with its obligations under Data Protection Law in respect of its processing of Personal Data and any processing instructions it issues to Service Provider. Customer represents and warrants that it has the authorizations necessary for Service Provider to Process Personal Data for purposes of providing the Services to Customer in accordance with the Agreement.
2.3 Service Provider Processing of Personal Data. Service Provider will process Personal Data only as necessary pursuant to Customer’s instructions as set forth in the Agreement. Customer instructs Service Provider to Process Personal Data: (i) in accordance with the Agreement, (ii) as part of any Processing initiated by Customer in its use of the Services, (iii) to comply with Customer’s other reasonable instructions to the extent they are consistent with the terms of the Agreement, and (iv) in accordance with the rights and duties attached to the Personal Data. Processing any Personal Data outside the scope of the Agreement will require prior written agreement between Service Provider and Customer by way of written amendment to the Agreement. Upon notice in writing, Customer may terminate the Agreement if Service Provider declines to follow Customer’s reasonable instructions that are outside those agreed to for the performance of the Services, to the extent such instructions are necessary for compliance with Data Protection Law. Service Provider will notify Customer if it can no longer abide by the rights and duties attached to the Personal Data and will immediately cease processing such Personal Data and take steps necessary to remediate any unauthorized processing.
2.4 Data Subject Requests. Service Provider will use best efforts to notify Customer promptly of any Data Subject requests for access to, correction, amendment or deletion of that individual’s Personal Data. To the extent Customer does not have access to such Personal Data through its use of the Services to respond to such request, Service Provider will provide Customer with commercially reasonable cooperation and assistance in relation to responding to a Data Subject’s request for access to that individual’s Personal Data to the extent legally permitted. Customer will be responsible for any costs arising from Service Provider’s provision of such assistance.
2.5 Duration. The duration of the Processing under the Agreement will continue until the applicable Services are terminated as set forth in the Agreement.
2.6 Purpose. The purpose of the Processing is the provision of the Services by Service Provider to Customer in accordance with the Agreement and as specified in the service orders entered into pursuant to the Agreement.
3.1 Use of Subprocessors. Customer acknowledges and agrees that (a) Service Provider’s affiliates and third-party service providers may be engaged as Subprocessors in connection with the provision of the Services. Such Subprocessors will be permitted to access Personal Data only to deliver the services that Service Provider has retained them provide in connection with the Services, and they are prohibited from using Personal Data for any other purpose. Service Provider has entered into a written agreement with each Subprocessor containing data protection obligations consistent with the DPA to the extent applicable to the nature of the services provided by the Subprocessor.
3.2 Liability for Subprocessors. Service Provider shall be liable for the acts of its Subprocessors to the same extent as Service Provider would be liable if performing the services of the Subprocessor directly under the DPA, except as otherwise set forth in the Agreement.
3.3 Objection to Subprocessors. Upon request, Service Provider will provide a current list of Subprocessors for the Services accessed by Customer. In the event that Customer reasonably objects to a Subprocessor, Service Provider will notify Customer of any available alternatives to change the Services or receive the Services from an alternate Subprocessor, together with any applicable charges or changes to terms. If an alternative acceptable to Customer is not available within a reasonable time, then Customer may terminate the Services which cannot be provided by Service Provider without the objectionable Subprocessor, and receive a prorated refund for the remaining unused period of Services.
4. DATA PRIVACY AND SECURITY.
4.1 Security Measures by Service Provider. Service Provider maintains a written security program to protect against Personal Data Breaches and to preserve the security and confidentiality of Personal Data processed by Service Provider in the provision of the Services, in compliance with Data Protection Law. Service Provider’s security program includes administrative, technical and physical safeguards appropriate for Service Provider’s size and resources and the types of information that Service Provider processes. Service Provider may update its security measures from time to time as consistent with the development of best industry practices, provided that such updates and modifications do not result in the degradation of the security of the Services. For any Services for which Service Provider obtains third party certifications or audits, upon request, Service Provider will provide a copy of Service Provider’s most recent third-party certification or audit as applicable, which Service Provider generally makes available to its customers at the time of the request.
4.2 Service Provider Personnel. Service Provider shall ensure that access of Service Provider personnel to Personal Data is limited to those Service Provider personnel who require such access to perform the Agreement. Service Provider personnel accessing Personal Data will be informed of the confidential nature of the Personal Data, are subject to written obligations of confidentiality and have received training appropriate for their responsibilities and the nature of the Personal Data.
4.3 Security Measures by Customer. A Service may make available security features and functionalities that Customer may elect to use (for example, encryption of data in transit). To the extent that the Service provides Customer with controls and functionality to enable Customer to manage the Service, Customer is responsible for configuring the Service appropriately and using the available controls as Customer considers adequate to maintain appropriate security, protection, deletion and backup of Personal Data. Customer is also responsible for implementing appropriate technical and organizational measures relating to its use of the Services in a manner which enables Customer to comply with Data Protection Law.
5. PERSONAL DATA BREACH RESPONSE.
Service Provider will use best efforts to promptly notify Customer of any unauthorized disclosure or loss of Personal Data as required by Data Protection Law and in accordance with the relevant provisions of the Agreement. Service Provider will take appropriate steps to identify and remediate the cause of such unauthorized disclosure or loss and will provide information relating to the Personal Data Breach as reasonably requested by Customer. Notifications will be delivered to Customer’s administrators for the Service by normal notice means except that due to time being of the essence in this situation, emails will be sent to the email on file with Infoblox for Customer. It is Customer’s responsibility to ensure that Customer maintains current contact information on the applicable Service console. Customer acknowledges that Service Provider will not notify Customer of unsuccessful security breach attempts that do not result in unauthorized access to or loss of Personal Data.
6. DATA TRANSFERS AND EXPORTS.
6.1 Data Transfers. The data sheets for selected Services may specify that specific Personal Data for the Services will not be transferred outside of a country or region; for such specified Services and Personal Data, Service Provider will not transfer the identified Personal Data outside of the specified country or region without prior written consent of Customer. For all other Personal Data and Services (including for support and maintenance services provided by Infoblox to Customer), Customer acknowledges and consents to Service Provider’s transfer of Personal Data, subject to Service Provider’s compliance with applicable Data Protection Law.
6.2 Data Transfers from the EEA and Switzerland. Unless Service Provider has provided an alternative adequate transfer mechanism (as recognized under EU Data Protection Law) for the applicable country or Service Provider is acting as a Subprocessor, the EU Model Clauses will apply to Personal Data that is transferred by Service Provider from the European Economic Area and/or Switzerland to a country not recognized by the European Commission or the Swiss Federal Data Protection Authority as providing an adequate level of protection for Personal Data. If Service Provider adopts another alternative data export mechanism (as recognized under EU Data Protection Law), then the EU Model Clauses will cease to apply with effect from the date that Service Provider implements such new data export mechanism. As used in the EU Model Clauses, the term “data importer” means Service Provider, and the term “data exporter” means Customer and its Affiliates.
7. DELETION OF DATA.
During and following the Agreement, Service Provider will delete or return to Customer all Personal Data in Service Provider’s possession or control as provided in the Agreement except to the extent Service Provider is required by applicable law to retain specific Personal Data (in which case Service Provider will archive the data and implement reasonable measures to prevent the Personal Data from any further processing). The terms of this DPA will continue to apply to such Personal Data.
8.1 DPIAs and Prior Consultations. To the extent required by EU Data Protection Law, Service Provider will, upon reasonable notice and at Customer’s expense, provide reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments (“DPIAs”) and/or prior consultations with data protection authorities.
8.2 Legal Disclosure Requests. If Service Provider receives a legally binding request for the disclosure of Personal Data which is subject to this DPA, such request shall be immediately forwarded to Customer to allow Customer an opportunity to engage in any legal processes it deems appropriate with respect to the protection or disclosure of Personal Data.
8.3 Audits. With respect to the audits described in Clauses 5(f), 11 and 12(2) of the EU Model Clauses, Customer agrees that the audits shall be carried out in accordance with the following specifications: Upon data exporter’s request, and subject to the confidentiality obligations set forth in the Agreement, Service Provider shall, within a reasonable period following such request, make available to data exporter (or data exporter’s independent, third party auditor that is not a competitor of Service Provider) information regarding Service Provider’s compliance with the obligations set forth in the DPA, which may be in the form of third party audit reports and certifications, to the extent that Service Provider has such current reports or certifications and generally makes them available to customers. Customer shall reimburse Service Provider any time expended and expenses incurred for any on-site audit at Service Provider’s standard professional services rates. Before the commencement of any audit, Service Provider and the data exporter shall agree upon the scope, timing and duration.
9. LIMITATION OF LIABILITY.
9.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS DPA OR THE AGREEMENT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.2 Total Liability. THE LIABILITIES ASSOCIATED WITH THIS DPA SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN THE AGREEMENT. IF NO LIMITATION OF LIABILITY IS SET FORTH IN THE AGREEMENT, THEN IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY EXCEED ONE (1) TIME THE ACTUAL AMOUNT PAID BY CUSTOMER TO THE SERVICE PROVIDER IN THE PREVIOUS TWELVE (12) MONTH PERIOD UNDER THE AGREEMENT.
10.1 Modification and Supplementation. The parties agree to mutually determine and execute appropriate modifications to the terms of this DPA which do not materially alter the economics or allocation of risk established by the Agreement (i) if required to do so by a supervisory authority or other government or regulatory entity, (ii) if necessary to comply with Data Protection Law, or (iii) to implement or adhere to revised standard contractual clauses which may be issued under Data Protection Law. Supplemental terms may be added as an Attachment or Appendix to this DPA where such terms only apply to the processing of Personal Data under the Data Protection Law of specific countries or jurisdictions. Either party may provide notice of such changes to the other, and the modified DPA will become effective, in accordance with the terms of the Agreement.
10.2 Governing Law. Except as otherwise required to comply with Data Protection Law (including, without limitation, EU Data Protection Law), this Agreement will be construed and enforced in accordance with the laws of the State of California without regard to conflicts of law principles (“applicable law”). Each party agrees that any action, suit or other proceeding based upon or arising from this Agreement (each, a “Dispute“) will be brought and maintained only in a Federal or State court of competent jurisdiction located in Santa Clara County, California. Each party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. The prevailing party in any Dispute will be entitled to recovery of its reasonable attorneys’ fees and costs. The Uniform Computer Information Transactions Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
10.3 Miscellaneous. For the purposes of this DPA, any defined terms that refer to the singular include the plural and vice versa. Except insofar as a different DPA has been or will be executed between the parties on the subject matter hereof, this DPA constitutes the entire agreement between the parties and supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among parties relating to the subject matter of this DPA and all past dealings or industry norms or customs.
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
Name of the data exporting organization:
Customer, which has agreed these Standard Contractual Clauses as data exporter on behalf of its affiliates or their respective clients and client affiliates in the European Economic Area and Switzerland
(the data exporter)
Service Provider which has agreed this Standard Contractual Clauses as a data importer
(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:
(a) ‘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;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘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;
(d) ‘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;
(e) ‘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;
(f) ‘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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 of 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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 Clauses
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is (please specify briefly your activities relevant to the transfer):
Customer or Customer’s affiliated entities or their respective clients and client affiliates which is a user of Service Provider’s products or services (“Service Provider Solutions”) and is located in the European Economic Area or Switzerland.
The data importer is (please specify briefly activities relevant to the transfer):
Infoblox Inc., a producer and provider of Service Provider Solutions.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter may submit Personal Data to Infoblox, the extent of which is determined and controlled by the data exporter in its sole discretion and which may include, without limitation, Personal Data relating to the following categories of data subjects:
* Prospects, customers, business partners, vendors and employees of data exporter (who are natural persons)
* Employees or contact persons of data exporter and/or data exporter’s prospects, customers, business partners and vendors
* Data exporters’ Users authorized by data exporter to use the Services
Categories of data
The personal data transferred concern the following categories of data (please specify):
Data exporter may submit Personal Data to Infoblox, the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, without limitation, the following categories of Personal Data:
* First and last name
* Contact information (including, without limitation, company, e-mail, phone(s), address(es))
* ID data
* IP address
* Professional life data
* Personal life data
* Connection data
* Localization data
Special categories of data (if appropriate)
As of the Effective Date of the Agreement, the parties do not anticipate special categories of Personal Data being transferred. Notwithstanding this, data exporter may submit special categories of data to Infoblox, the extent of which is determined and controlled by the data exporter in its sole discretion, and which is for the sake of clarity Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the Processing of data concerning health or sex life.
The personal data transferred will be subject to the following basic processing activities (please specify):
The objective of Processing of Personal Data by data importer is the performance of the Services (including, without limitation, Service Provider Solutions) pursuant to the Agreement.
The list of approved Subprocessors of Infoblox are available under the confidentiality terms of the Agreement by sending a request to your Infoblox sales representative. For the avoidance of doubt, any such list of Subprocessors may be updated by Infoblox as set forth in the Agreement and/or this DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Service Provider maintains documented security policies for the applicable service, which are available to Customer under the confidentiality terms of the Agreement.
Agreement Updated: January 30, 2020